OHIO VALLEY ENVIRONMENTAL COALITION, INC.; SIERRA CLUB; WEST VIRGINIA HIGHLANDS CONSERVANCY, INC.; WEST VIRGINIA RIVERS COALITION, Plaintiffs - Appellees,
SCOTT PRUITT, Administrator, United States Environmental Protection Agency; CECIL RODRIGUES, Acting Regional Administrator, United States Environmental Protection Agency, Region III, Defendants - Appellants.
Argued: May 8, 2018
from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (3:15-cv-00271)
Anthony Maysonett, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellants.
Owen Teaney, APPALACHIAN MOUNTAIN ADVOCATES, INC., Lewisburg,
West Virginia, for Appellees.
Jeffrey H. Wood, Acting Assistant Attorney General, Eric
Grant, Deputy Assistant Attorney General, David J. Kaplan,
Environment & Natural Resources Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.; James Curtin,
Stefania Shamet, UNITED STATES ENVIRONMENTAL PROTECTION
AGENCY, Washington, D.C., for Appellants.
Patrick Parenteau, Jill Witkowski Heaps, Rachel L.B. Stevens,
Environmental and Natural Resources Law Clinic, VERMONT LAW
SCHOOL, South Royalton, Vermont; Todd D. Ommen, Pace
Environmental Litigation Clinic, ELISABETH HAUB SCHOOL OF
LAW, White Plains, New York, for Amici National Wildlife
Federation, Waterkeeper Alliance, Incorporated, and
Riverkeeper, Inc. Joel C. Beauvais, Claudia M. O'Brien,
Stijn Van Osch, LATHAM & WATKINS LLP, Washington, D.C.,
for Amici National Association of Clean Water Agencies,
National Cattlemen's Beef Association, and National
Mining Association. Douglas Crouse, Robert G. McLusky,
JACKSON KELLY, PLLC, Charleston, West Virginia, for Amicus
West Virginia Coal Association.
NIEMEYER, MOTZ, and FLOYD, Circuit Judges.
GRIBBON MOTZ, CIRCUIT JUDGE
environmental groups brought this action against the
Environmental Protection Agency. They allege that EPA failed
to perform its nondiscretionary duty under the Clean Water
Act to promulgate pollutant limits for biologically impaired
waters in West Virginia. The district court concluded that
Plaintiffs have standing to bring this claim and granted
summary judgment in their favor. We agree that Plaintiffs
have standing, but, for the reasons that follow, we reverse
the grant of summary judgment.
enacted the Clean Water Act "to restore and maintain the
chemical, physical, and biological integrity of the
Nation's waters." 33 U.S.C. § 1251(a). The Act
instructs each state to establish "water quality
standards, " subject to EPA review and approval.
Id. §§ 1313(a)-(c), 1362(3). Water quality
standards consist of the "designated uses" of a
state's waters and "water quality criteria"
necessary to support those designated uses. Id.
§ 1313(c)(2)(A); 40 C.F.R. § 130.2(d).
existing pollution controls are not sufficient, such that a
body of water cannot support its "designated uses,
" a state must classify that water as impaired. 33
U.S.C. §1313(d). Section 303(d) of the Act requires a
state to place its impaired waters on a list ("the
303(d) List") and to establish a priority ranking of the
impaired waters, accounting for the severity of the
pollution. Id. A state must submit its list every
two years, and EPA must approve or disapprove the list. 40
C.F.R. § 130.7(d)(1). If EPA disapproves a 303(d) List,
then EPA itself must establish a list of waters within thirty
days of disapproval. Id.
further requires a state to develop a total maximum daily
load ("TMDL") for waters on the 303(d) List in
accordance with its priority ranking. See 33 U.S.C.
§1313(d)(1)(C). A TMDL establishes the maximum daily
discharge of pollutants into a water, which ultimately
translates into enforceable permit limits. See id. A
state must submit its TMDLs to EPA "from time to
time." 33 U.S.C. §1313(d)(2). Once a state submits
a TMDL, EPA must approve or disapprove it within thirty days.
Id. If ...