UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATURAL RESOURCES DEFENSE COUNCIL, INC.,

Plaintiff, v. Civil No. 16-1861 (JDB) ENVIRONMENTAL PROTECTION AGENCY, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Natural Resources Defense Council, Inc. (“NRDC”) has moved under Federal

Rule of Civil Procedure 54(b) for the Court to reconsider its 2018 decision giving defendant

Environmental Protection Agency (“EPA”) discretion as to how to establish a new total maximum

daily load (“TMDL”) for trash in the Anacostia River. NRDC contends that little progress has

been made since that 2018 decision and that the Court should require EPA to have a TMDL in

place within one year. EPA opposes, arguing that development of the TMDL is continuing apace

and that NRDC has not met the high standard for reconsideration under Rule 54(b). For the reasons

that follow, the Court agrees with EPA and will deny the motion. However, given the slow pace

of development to date, the Court will require EPA to submit status updates every three months

going forward.

Background

I. The Clean Water Act

The Clean Water Act, passed in 1972, requires states and the District of Columbia to

“institute comprehensive water quality standards establishing water quality goals for all intrastate

1 waters.” PUD No. 1 of Jefferson Cty. v. Wash. Dep’t of Ecology,

(1994); see

(a)–(c). The Act embodies a “cooperative federalism framework” whereby the

states and EPA “work[] together to clean the Nation’s waters.” Am. Farm Bureau Fed’n v. EPA,

(3d Cir. 2015). At issue in this case is one component of that complex statute,

calling for the establishment of a “total maximum daily load” of pollutants in certain waters. See

(d)(1)(C).

The creation of a TMDL is just one part of a multistep process, with each step “placing

primary responsibility for pollution controls in state hands with ‘backstop authority’ vested in the

EPA.” Am. Farm Bureau Fed’n,

. At the first step in the process, a state is required

to identify a given waterbody’s “designated use[],” such as recreation or wildlife preservation. See

Nat. Res. Def. Council v. EPA (“NRDC I”),

, 136–37 (D.D.C. 2018) (quoting

(c)(2)(A)). The state must then set a target water quality based on that use. See

. At this point, EPA must either approve or disapprove the water quality standards; if

EPA disapproves, it must set its own standards for the waterbody. See

(a)(3)(A)-

(C) & (b).

Next, the state must “identify those waters within its boundaries” that do not meet the

established water quality standards, otherwise known as impaired waters.

§ 1313(d)(1)(A).

For those impaired waters, the Act requires, in the first instance, states—not EPA—to establish a

TMDL for the pollutants causing the impairment. Id. § 1313(d)(1)(C). The TMDL must be set

“at a level necessary to implement the applicable water quality standards with seasonal variations

and a margin of safety which takes into account any lack of knowledge concerning the relationship

between effluent limitations and water quality.” Id.; see Nat. Res. Def. Council v. Muszynski,

, 94 (2d Cir. 2001) (“In effect, a TMDL posts a limit on the total amount of a pollutant a

2 waterbody may receive over a period of time.”). Once a state has established a TMDL for the

pollutants in a given waterbody, the state must submit the TMDL to EPA for approval. See

(d)(2). Here again, EPA must either approve or disapprove the state TMDL, this

time within thirty days, and if EPA disapproves, it must establish its own federal TMDL within

thirty days of that disapproval.

The Act does not itself set a deadline for when a state is required to establish and submit a

TMDL to EPA. It largely leaves that judgment up to the state, requiring only that the state submit

TMDLs “from time to time,” “in accordance with [the state’s] priority ranking” for its waters,

which must “tak[e] into account the severity of the pollution and the uses to be made of such

waters.”

§ 1313(d)(1) & (2). In the years since the Act was enacted, courts have acknowledged

that “TMDLs take time and resources to develop and have proven to be difficult to get just right.”

Upper Blackstone Water Pollution Abatement Dist. v. EPA,

, 14 n.8 (1st Cir. 2012);

see, e.g., S.F. BayKeeper v. Whitman,

, 881 (9th Cir. 2002) (“The development of

TMDLs to correct the pollution is obviously a more intensive and time-consuming project than

simply identifying the polluted waters.”); see also Am. Farm Bureau Fed’n,

(discussing portions of the Act’s legislative history stating that developing a TMDL will be “time

consuming and difficult”).

Still, some courts have also recognized that, at some point, delay is unacceptable under the

Act, and have established what is known as the “constructive submission” doctrine to identify

when a delay becomes problematic. See Ohio Valley Envtl. Coal., Inc. v. Pruitt,

(4th Cir. 2018). Under that doctrine, “a prolonged failure ‘by a state to submit TMDLs will

be construed as a constructive submission of no TMDLs, which in turn triggers EPA’s

nondiscretionary duty to act’”—that is, the duty to establish a federal TMDL within thirty days.

3

(quoting S.F. BayKeeper v. Whitman,

, 881 (9th Cir. 2002)). The doctrine

generally “applies only where a state ‘clearly and unambiguously’ expresses a decision not to

submit TMDLs.” Id. at 230 (quoting Hayes v. Whitman,

(10th Cir. 2001)).

Courts endorsing this doctrine reason “that, without it, states could refuse to promulgate their own

TMDLs and therefore easily frustrate” the Act.

at 229–30.

II. The Anacostia River

The Anacostia River, spanning more than 170 square miles, flows from Maryland to the

District of Columbia. NRDC I,

. As required by the Act, Maryland and

D.C. “have each established designated uses and water quality standards applicable to their

portions of the Anacostia River.”

Both jurisdictions determined that the river was impaired

by trash pollution. See

Therefore, between 2009 and 2010, they jointly developed a TMDL to

limit the amount of trash in the Anacostia River and submitted it to EPA. See

at 138–39. In

reviewing the TMDL, EPA acknowledged that “[u]nlike most TMDLs, which are expressed in

positive terms of the loads of a pollutant that may be added to a waterbody,” the joint TMDL was

“expressed in the negative, i.e., in terms of quantities of trash that must be captured, prevented

from entering, or removed from the waterbody.”

at 139 (quoting Admin. R. [ECF No. 26] at

3114). EPA nonetheless approved the TMDL on September 21, 2010.

NRDC filed this suit in September 2016, challenging EPA’s approval of the TMDL under

the Administrative Procedure Act (“APA”). See

. NRDC eventually moved for summary

judgment, arguing that by “set[ting] a minimum amount of trash that must be removed,” instead

of “setting a maximum daily amount of trash that can enter the river,” the TMDL violated the Act’s

requirement that states set a “total maximum daily load” for the river.

On March 30, 2018, the

Court agreed and granted NRDC’s motion, concluding that the TMDL did “not establish a

4 ‘maximum daily load’ within the plain meaning of that phrase.”

. The Court therefore

vacated and remanded EPA’s approval of the TMDL, staying vacatur “until such time as the EPA

approves a replacement TMDL.” See

. But the Court declined to grant NRDC’s

request that a specific deadline be imposed on EPA for the establishment of a new TMDL. See

. The Court “le[ft] it to EPA to decide whether to cooperate with [Maryland and D.C.] to

develop a new trash TMDL, . . . or instead to ‘disapprove[]’ the [existing] TMDL and thereby

trigger the agency’s statutory responsibility to establish a federal TMDL within thirty days.”

Rather than disapproving the existing TMDL, EPA opted to cooperate with Maryland and

D.C., giving them primary responsibility for developing the replacement TMDL. See July 2, 2018

Status Report by Def. EPA [ECF No. 31] at 2. EPA has been submitting status reports to the Court

every six months as to the state agencies’ progress in developing the new TMDL, with the most

recent report having been filed on February 19, 2020. 1 See Feb. 19, 2020 Status Report by Def.

EPA [ECF No. 41] at 1.

In January 2020, NRDC filed this motion for the Court to reconsider its 2018 decision and

impose a one-year deadline on EPA to establish a TMDL, contending that the TMDL-development

process was proceeding too slowly and “denying legally mandated protections to the river, the

communities along its banks, and those who come to enjoy it.” Pl.’s Mot. to Set a Deadline for

Final Action on Remand (“Deadline Mot.”) [ECF No. 39] at 1. Partway through briefing, NRDC

served EPA with eight requests for document production and noticed a deposition of an EPA

official who had filed a declaration in support of EPA’s opposition. Nat. Res. Def. Council v. EPA

(“NRDC II”),

, at *1 (D.D.C. June 2, 2020). EPA then moved for a protective

order, arguing that the discovery sought was improper. See

. The Court denied that motion

1 Given the briefing schedule for the present motion, EPA has not been required to file a status report since February. As noted below, the Court will impose a more frequent status report schedule going forward.

5 and permitted NRDC to conduct very limited discovery. See

. In the course of doing so,

the Court also clarified that Rule 54(b) applies to NRDC’s motion to set a deadline, because that

motion requests that the Court reconsider a nonfinal order.

. The motion to set a deadline

is now fully briefed and ripe for decision.

Discussion

I. Legal Standard

Under Rule 54(b), a court may grant relief “as justice requires,” Capitol Sprinkler

Inspection, Inc. v. Guest Servs. Inc.,

(D.C. Cir. 2011), which requires

“determining, within the Court’s discretion, whether reconsideration is necessary under the

relevant circumstances,” Cobell v. Norton,

(D.D.C. 2005). To determine

whether “justice requires” reconsideration of a previously issued interlocutory order, a court

considers whether it “patently misunderstood a party[,] . . . has made an error not of reasoning but

of apprehension, or [if] a controlling or significant change in the law or facts [has occurred] since

the submission of the issue to the Court.” Singh v. George Wash. Univ.,

(D.D.C. 2005) (citation omitted). Rule 54(b) motions may properly be granted, for instance, where

the movant presents the court with “new information” justifying reconsideration of a previous

decision. See Doe I v. Exxon Mobil Corp.,

, at *3 (D.D.C. June 3, 2019).

“At the same time, a court’s discretion under Rule 54(b) is ‘limited by the law of the case

doctrine and subject to the caveat that where litigants have once battled for the court’s decision,

they should neither be required, nor without good reason permitted, to battle for it again.’” Jordan

v. U.S. Dep’t of Justice,

, at *2 (D.D.C. May 8, 2019) (quoting Singh,

). “The law-of-the-case doctrine dictates that the same issue presented a second

6 time in the same case in the same court should lead to the same result,” absent extraordinary

circumstances. Al Bahlul v. United States,

(D.C. Cir. 2020) (quotation omitted).

II. Analysis

NRDC argues that “new information” has come to light that should make the Court

reconsider its prior decision not to impose a deadline on EPA. Prior to conducting its limited

discovery, NRDC could rely for support only on the “new information” of what it called the slow

and “meander[ing]” pace of development. See Deadline Mot. at 1, 3–4. Following discovery,

NRDC now also points to the “inaccurate and unreliable” declaration submitted by an EPA official,

noting that the official’s declaration had previously estimated that the TMDL would be completed

in three to five years, but that the official’s deposition had revealed that she now thinks five to

seven years will be required. See Reply in Supp. of Pl.’s Mot. to Set a Deadline for Final Action

on Remand (“NRDC Reply”) [ECF No. 53] at 2–3, 6.

In EPA’s view, the facts that NRDC has put forth are insufficient to establish that “a

controlling or significant change in the law or facts has occurred since the [original] submission

of the issue to the Court.” Def.’s Sur-Reply Opposing Pl.’s Mot. to Amend the J. & Impose a

Deadline on Remand (“EPA’s Sur-Reply”) [ECF No. 55] at 2–3 (quoting Scahill v. District of

Columbia,

, 17–18 (D.D.C. 2017)). To the contrary, EPA asserts, “[t]he facts

shown in hundreds of documents, multiple status reports, sworn declarations, and a deposition”

demonstrate that the states and EPA “have been working diligently on remand and have made

steadfast progress over the past two years.” Id. at 1. As a result, EPA argues that the “new

information” that NRDC has presented is insufficient to satisfy Rule 54(b). See id. at 4–5, 9.

Likewise, EPA maintains that NRDC has not adequately justified overriding the law of the case

7 on this issue, which is that EPA is permitted to let Maryland and D.C.’s own TMDL-development

process play out. See id.

With some reluctance, the Court agrees with EPA. At summary judgment more than two

years ago, the parties battled over whether the Court should set a deadline for development of a

replacement TMDL. See Pl.’s Mot. for Summ. J. [ECF No. 10] at 15; Def.’s Cross-Mot. for Summ.

J. [ECF No. 15] at 39–40. The Court’s 2018 decision resolved that issue in favor of EPA, declining

to set such a deadline. See NRDC I,

. That is the law of the case. And

district courts should “be ‘loathe’ to reconsider issues already decided ‘in the absence of

extraordinary circumstances such as where the initial decision was ‘clearly erroneous and would

work a manifest injustice.’” LaShawn A. v. Barry,

(D.C. Cir. 1996) (en banc)

(quoting Christianson v. Colt Indus. Operating Corp.,

(1988)).

The only concrete new fact that NRDC has put forward in support of its motion for

reconsideration of the Court’s 2018 decision is the passage of time—as of the date of this opinion,

about two and a half years since the existing TMDL was vacated. The Court acknowledges and

indeed shares, to some extent, NRDC’s displeasure with the pace of development of the

replacement TMDL thus far. The Court, too, would prefer that a new TMDL be established and

implemented as soon as possible. However, the Court will not now do what the Clean Water Act

does not itself do—establish a firm timeline for the submission of a TMDL by the states to EPA.

It is an unfortunate reality that the development of a TMDL sometimes takes several years, or even

a decade in extreme cases. See Am. Farm Bureau Fed’n, 792 F.3d at 291–92 (noting that

development of a final TMDL for the Chesapeake Bay took ten years); Sierra Club v. McLerran,

, at *3–4 (W.D. Wash. Mar. 16, 2015) (quoting EPA material noting that

development of TMDL for Spokane River took twelve years); Order, Nw. Envt’l Advocates v.

8 EPA, Case No. 12-cv-1751 (D. Or. June 11, 2019) (setting four-to-eight year schedule for

development of TMDLs); Anacostia Riverkeeper, Inc. v. Jackson,

(D.D.C.

2010) (affording EPA four years to develop new TMDLs); see also Envtl. Law & Policy Ctr. v.

EPA,

, 778–79 (N.D. Ohio 2019) (“EPA guidance documents suggest that

states should establish TMDLs within 8 to 13 years from the date of the original listing of a

particular waterbody as impaired.” (quotation omitted));

, 60,665 (Dec. 28,

1978) (“EPA recognizes that State development of TMDLs and wasteload allocations for all water

quality limited segments will be a lengthy process.). 2 The Court’s 2018 decision did not require

or suggest that a replacement TMDL be established within a specific timeframe, beyond noting

that EPA was required by the APA to “act diligently.” NRDC I,

. The two

and a half years that have elapsed in this case—though undoubtedly an understandable source of

frustration for NRDC—are simply not enough to justify a reconsideration of the Court’s prior

decision.

Nor are NRDC’s attacks on the validity of the EPA official’s declaration availing, because

they largely ignore the fact that EPA is not the entity developing the replacement TMDL—

Maryland and D.C. are, as contemplated under § 1313(d)(1)(C) and the Act’s “cooperative

federalism framework,” see Am. Farm Bureau Fed’n,

. Hence, while EPA has

taken on a coordinative and facilitative function in the TMDL-development process, it cannot itself

dictate how quickly the process proceeds, but instead can provide only estimates based on

information from Maryland and D.C. and the EPA official’s past experience with them. With that

2 In fact, even the four-year deadline in Anacostia Riverkeeper that this Court set in 2010 turned out to be too optimistic. The Court has since extended the deadline to September 30, 2021—a total timeline of nearly eleven years. See Order [ECF No. 49], Anacostia Riverkeeper, Inc. v. Wheeler, Case No. 09-cv-98, at 1–3.

9 in mind, NRDC’s criticisms of the official’s declaration do not persuade the Court to reconsider

its 2018 decision.

For instance, one of NRDC’s main criticisms is that the official’s original estimate of three

to five years, which her deposition revealed was based on “her observations of how long it has

[previously] taken the [state agencies] to complete various TMDL development tasks,” has now

increased to five to seven years. See NRDC Reply at 2–4. As she stated at her deposition, the

official came to her new estimate after “[w]riting out the steps that would—the substeps, really,

that would be needed” under the first step of the development timeline. Ex. 1, NRDC Reply [ECF

No. 53-1] at 18–19. That consists primarily of developing, designing, implementing, and

analyzing the results of a public survey. See id. at 20. The Court shares NRDC’s concerns about

the process that led to the apparently inaccurate estimate in the official’s original declaration. An

estimate it may have been, but presumably EPA intended for that estimate to be helpful to the

Court. The Court would expect that something as simple as writing out the substeps of each step

of an estimate would have been done prior to the submission of a sworn declaration to the Court.

Still, whatever the deficiencies in EPA’s estimation process that led to a two-year increase

between the submission of the official’s declaration on February 28 and her deposition on June 30,

the fact remains that Maryland and D.C. have the leading role in developing the replacement

TMDL. As EPA points out, “the States are developing the replacement TMDLs through their

respective State programs and administrative processes.” EPA Sur-Reply at 13. Thus, uncertainty

on EPA’s part as to how long the TMDL-development process will take does not constitute “a

controlling or significant change in the law or facts . . . since the submission of the issue to the

Court.” Singh,

. Indeed, the Court specifically contemplated that EPA

might take a backseat to Maryland and D.C. in developing the replacement TMDL in its 2018

10 decision. See NRDC I,

. For better or worse, EPA has done just that here.

That fact, then, does not justify the Court’s changing its decision.

NRDC also cites, in passing, a few cases applying the constructive submission doctrine.

But those cases don’t help NRDC’s cause, either. As recently stated by the Ninth Circuit, that

doctrine applies “where a state has fail[ed] over a long period of time to submit a TMDL and

clearly and unambiguously decided not to submit any TMDL[s].” Columbia Riverkeeper v.

Wheeler,

(9th Cir. 2019) (internal quotation marks omitted). That is not the

situation here. Maryland and D.C. previously submitted the existing (deficient) TMDL, which

remains in effect today because of the Court’s stay of vacatur. They have not failed to submit any

TMDLs. See Hayes,

(concluding that because Oklahoma had submitted

“at least a small number” of TMDLs, the constructive submission doctrine did not apply).

Moreover, Maryland and D.C. have not “clearly and unambiguously decided” not to submit

a TMDL. Even leaving aside the TMDL the states already submitted, EPA has put forth substantial

documentation demonstrating that Maryland and D.C. have been reaching out to stakeholders,

analyzing data, soliciting advice from authorities in other regions of the country, and working to

settle on a final approach for the TMDL. See EPA’s Sur-Reply at 5–8; see generally Ex. A, EPA’s

Sur-Reply [ECF No. 55-2] (documentation of EPA’s and the states’ efforts). EPA therefore does

not rely only, as NRDC suggests, on the EPA official’s “declaration as proof that the Agencies are

working hard.” NRDC Reply at 6. NRDC has not identified any evidence suggesting that

Maryland and D.C. have decided not to submit a TMDL. Thus, far from “clearly and

unambiguously express[ing] a decision not to submit [a] TMDL,” Ohio Valley Envtl. Coal.,

, Maryland and D.C. have demonstrated progress toward establishing one—even if that

progress is slower (perhaps much slower) than NRDC and the Court would like. See Anacostia

11 Riverkeeper, Inc.,

(“[W]here an agency justifies its conclusions with

evidence, courts should not substitute their own predictions about the length of time an agency

needs to evaluate data . . . , especially where those predictions turn on scientific matters.”).

For all these reasons, the Court concludes that NRDC has failed to present adequate “new

information” demonstrating a “controlling or significant change in the law or facts” since the

Court’s 2018 decision, as required for reconsideration under Rule 54(b), nor has it established

“extraordinary circumstances,” as required to override the law-of-the-case doctrine. Still, the

Court continues to urge EPA, Maryland, and D.C. to develop a TMDL “diligently” and as quickly

as possible, consistent with the scientific method and practical standards. See NRDC I,

. Furthermore, EPA should be on notice that the Court does not foresee permitting

this process to drag on interminably, and may at some point in the not-too-distant future look more

favorably upon a motion like this one. At least for now, however, the Court will not reconsider its

2018 decision not to impose a deadline. But it will require increased reporting in order to monitor

the continuing progress the Court expects.

Conclusion

For the foregoing reasons, the Court will deny NRDC’s motion to set a deadline for final

action on remand. The Court will also require EPA to submit detailed status reports every three

months going forward, with the first report due not later than October 15, 2020. A separate order

will be issued on this date.

/s/ JOHN D. BATES United States District Judge Dated: September 21, 2020

12