elves when a body of water is impaired by pollutants the clean water act directs the state to submit a total maximum daily load or t m d l to e p a that t m t all has to identify the volume of pollutants body of water can receive and still meet its water impaired by a condition known as ionic toxicity clean water act doesn't set any deadlines for these t m t else but the district court here decided that west virginia was shirking its duties so would use this doctrine of constructive submission to direct e p a to step in and take action the district court's decision should be reversed for two reasons first because it got standing wrong it allowed the plane to ohio valley environmental coalition o about it they've taken great care to keep that doctrine narrow but the district court here wasn't cautious it's took constructive submission farther than any other court has taken it as it significantly expanded the doctrine and it put itself in direct conflict with the priorities the state of west virginia's legislature has set for its water program so i think i'll start with constructive submission i want to talk a little bit first about the standard for constructive submission and i want to turn to the court's application of the standard to these facts because i think there are the district made important errors in both aspects so constructive submission as i said is a doctrine that to the status of it so it's still state law so s b five six to two year our course is the bill that the west virginia state legislature passed the toll the west virginia department of armor protection to take a step back from these two young deals and to develop a new assessment tool but takes a broader look at the biological health west virginia streams that in any way are you are what they told you know these are the states this bill these are the states priorities for its clean  program right that the state legislature has told us that it has told the west virginia part of environment protection that each take the time to develop a new tool that uses a broader measure of the health of these streams occur to realize just on macro inverte brates to judge the health of the streams the west virginia state legislature said no no take a step back develop a new tool that looks at both macro invertebrates and fish and then set these t m b else well i think that  critiquing e p a i'm more interested in state here whether it whether it is acting they're all so i mean again this is a hard issue this is either new ish some states have dealt with it right i'm not a for example the new assessment tool that ross region is developing here they want to incorporate fish into the tool into this measure of biological health well to do that you go out and you count the fish in a stream right but that doesn't tell you because you need to know how many fish are there are better right so you've got to build it s program is a watershed program so they cycle through the water ships so what my understanding is they're going to once they build this tool and start developing these team deals they're going to try to incorporate this process and into their ongoing contingent upon the state legislature agreeing to it so the way the senate bill five sixty two is written as i understand it is that once they develop the tool they have to submit it for approval to the legislature and then once it's approved i'll go forward to use the tool to develop these two and how do these deadlines figure into that there are any internal there are any interim deadlines inside the memorandum remains so they've got to get the assessment tool done first but there's no no interim deadline for that for but the deadline is for putting them into practice so anything not which would include the state legislature proving right so this is all part of the current deadline so ok thank you so i did turning back to the standard for constructive t else defined by federal law or state law it's defined in the clean water act so it's an ok as defined in the clean water act west virginia has been submitting ongoing program they've submitted four thousand in the last decade five hundred cents february twenty sixth and i think they're on track to do another two hundred or so by the end of twenty one things are optional i mean they have to do this you know not like they have these the federal law is of course in a partnership but if t m t else are defined by federal law and the state has to submit the t m t elves and west virginia is doing that it's hard to accuse it of violating the rhetorical i'm not suggesting that's where i am ok but it but isn't that i'm not i wasn't sure that they were broadening i thought that this was required under federal law that they do this all timidly you you know you've got bear in mind these team deals are just one aspect of the clean water act this isn't the whole program right there are so much more there's water quality standards there's water there's all these terms are incorporated into people's permits so i mean even if which this court affirmed so you have the also just planning tools that are not in forcible in and of themselves i'm not saying they're not important they are require west virginia has a schedule to get these done the fundamentally what happened here's the fact they never supported a finding of constructive submission it seems that the district court really just thought that this was political interference right that senate bill five sixty two was just shenanigans that that west virginia never has any intention of doing any of this  i mean you know that there's nothing in the clean water act that tells us what tool west virginia has to use to assess biological impairment was neutralised up record showing what they're doing backs of records showing what they're doing that's a techie because you know at the time so west virginia i believe they explained in the fax record that they had enlisted help from west virginia university to help start developing this new assessment to the record shows  the had to redo their their water models because you know this reacts with the environment as it moves through the barbs they have changed those they did all that and then the senate bill came out but some of them back to the drawing board they were using a whole different way to that the courts leave just wrap up or go ahead take one minute thank you so i mean the bottom line here for us is that we think that district court constructed submission doctrine wrong it didn't prop apply the bright line test the other courts or part of the ninth circuit and the tenth circuit have both adopted it ignore the limitations that other courts have put on that doctrine it you know it didn't care that was for junior has an active program that continues to establish deals for other constructive submission any other case there's no support clean water act for that application of the doctrine it stands outside the existing precedent and it's you support the doctrine as an abstract principle we have not asked the court to reach that issue in fact we got  impair for the biological use and therefore trigger e p a s non discretionary duty to approve or disapprove of pets mission within thirty days this is a non discretionary duty suit the question is what does the  a in these circumstances concluded that then i guess in this discretion that time to time is satisfied with the ongoing development of science and the interaction between the two agencies but i don't think this country because of the construct of submissions are you challenging your policy or we are the cause of action arises as a non discretionary duty suit under the clean water act which authorizes citizens to decade ago in two thousand and eight so this has been going on for some time and it's fact when he went to the significant action in this case that triggered in our in our view the constructive submission it was engaged in a pilot program with with e p a to develop a seen these other states have been very narrow it's been added to the recalcitrance basically thumbing their nose at the requirements and here west virginia was working hard to say they were on the verge of submitting t m t else when the criteria were changed by the legislature to broaden it beyond non vertebra vertebral to fish and i'd like to address what the legislature voted in just a moment is have they now come to a we've got the science we want to offer you the resources to do it let's get you to the goal line and the d p withdrew from that process and response to senate bill five sixty eight i'd like to clarify a little bit about senate bill five sixty eight i do not think it accurate sounds to me like you're speaking totally differently than the e p a is representing itself the e p a seems to be satisfied with its relationship west virginia in the progress that's been made and the two have leached some kind of a schedule to implement this mutual work and you're saying west virginia is just dead in the water here are that schedule it was the result of this litigation that schedule in the memorandum of agreement e t a was discussing was generated a complying with the order of the judge chambers issue to it to approve or disapprove of the constructive submission that's where the schedule pain from the the the senate bill five sixty two coming back to that for just a moment did not address the priorities if you read that and it's in the joint appendix they don't even mention the word or the acronym t m yells the legislature did not instruct d e p to just what do you understand that legislation that what i understand and i think the plain reading of the legislation was that it empowered west virginia and directed them to propagate for legislative approval a rule and this has to do with the way the rules on the gate and was for joined us agency rules have to be approved by the legislature and the up with this methodology the legislature did not instruct the e p a on what it was to do in the interim until it was to come up with that let me ask but it wasn't allowed to use those ones that had been used that's that i said i respectfully submit that suitable fifty sixty two does and that's in the record it says in that memorandum of agreement that starts the schedule that mr mason that was talking about the e p a knowledge is we have no barriers to our present development t m t else they don't have to get a new methodology before they do those that always just the reason that they withdrew from the program it was their construction of the statute or the senate bill but i submit that that senate bill never told them that that's what they had to do and when you look at what they did under that you judge floyd inquired  this that there are agencies interpretation of the west virginia statute was unreasonable saying that it was contrary to the plain language of the statute and i think that any it a reasonable observer who reads the language  that it wasn't just limited to a very small biological form of life but to a larger form of life that includes fish and that's right what's in it with eligible what the legislature said was don't be less restrictive than you are already are but please develop an  aspect of your assessment methodology to look at fish in the streams now what about is a broadening then isn't it well it's a broadening of the methodology sure but it doesn't say that they can't use the existing methodology in the meantime and you don't  new standard because it has to now cover fish it couldn't change it let me take a step back if i mean it couldn't broaden the the water quality sting the water quality standards the narrative standard that  no degradation of the biological integrity of the water and so what the methodology does is it empowers the agency to look at the stream and figure out is the biological integrity impaired for more than a decade d p had used a macro legislators told them to do fish too but the legislature could not change the fact that hundreds of streams have already been designated as impaired as biologically impaired by e p and approved by e p a something nobody is debating that there's five hundred some strains that have been on that list that's correct but the question then is developed deals for each of the strains that's correct and the test up to one point was these  and now the legislature has added fish and they say the corn the genius working on the test now that no other state has done yet but in the meantime those streams remain impaired and remain on water quality impaired in the speed congress expected them to be done true years after the one nine hundred seventy two clean water act amendments were passed and from time to time thereafter has to be viewed in the context of that instruction that the first time you've got to do it is two years after nine hundred seventy two and additionally provision requires that the e p a and state agencies account for you know lack of information and move forward and act and put a margin of safety in there the idea is to get the pollution budget in place later if it has to be revisited because of a change as a result of the methodology then that is the way to do it it's not to wait for the new methodology when d e p has shown that it is unable or unwilling to develop such floyd asked about the status of it there is currently till in two thousand and eighteen no new methodology developed id d e p does not have a new methodology of comment as e p a observed it's going to have to be approved by the legislature i bet it does not look like they would be able to get a new methodology before even the two thousand and nineteen west virginia legislature so at this point the t m t elsewhere biological impairment in west virginia are in administrative purgatory as a result of senate bill five sixty two and that is the reason that the district court correctly concluded that d p has clearly and unambiguously said it's not going to do biological impairment t and yes it hasn't been able to develop a new methodology now the agency admits that it never need to do it needed to do a new methodology to begin with and so based on this record this state has said to d e p t we're not going to do we're not going to do the biological impairment t m t else and of and the reason that they've used the assessment methodology they haven't been able to generate that at this point if if there isn't a constructive submission in here than then you know if it's only that unique case of alaska where there was a complete failure to do any well then there isn't a constructive  moved to dismiss and said you can't find a constructive submission on these facts and the court said yeah we could we're not going to right now because of the posture of the case but we could and then those cases settle so while it is true that only one court has found that the constructive submission point there have been t m deal there have been deadline set because of this litigation so and what more do you want now while we're just trying to defend those deadlines at this point because  thought that that was that was done i mean if they're already in place if you read the memorandum of agreement both parties reserve the right to withdraw that schedule in the event that this court reverses that's in the memorandum of agreement that's why this case isn't moot and that's why we're still here are you know was if you look closely the memorandum of agreement it's pretty telling that if you know where it is actually i know below i know i know your colleague will know right yes it was it was a document one of seven in the in the district court record i talking when i was seven i'm impressed so i was under the impression when you were arguing this case that you were telling us that these deadlines were in place and that they're poor and it's the ver who really is no need or is saying that there has to be a constructive action here and is it your position really that you can do these deadlines  west virginia meeting the schedule so what happens to that agreement if we say under the facts of this case because drug use admission is not apply well i don't know what would happen the green minutes in place now as mr king says it does have terms that make it clear that if this court reverses the district court we could modify or withdraw from that agreement now could the state and so could the state and of course they can do that now as well right i mean this was an e p a e p a doesn't it's not that the district court set a schedule for not that they would then be well now can't i guess i don't follow your because because then what we should be reviewing is not that schedule but e p a s position that it's ok to not have a schedule right well so that what was before the district court was whether or not so much time had passed here right that it amounted to a clear and unambiguous refusal by was for to write and we and your  as either party can walk away from it any time well and the clean water act lets them do that right i mean the clean water act gives the states the discretion they need to set their own priorities to take the time to go out and build those and force them to i don't want to also leave you with the impression that some of these t pending been pending for for many years i mean if you could just stick with me on this and i understand that the but your submission to us is that this agreement really doesn't matter and these deadlines that they put out really don't matter because under i guess you're saying under the clean water act they can walk away at any time and under the agreement they can walk away any time and that's true and if you read the body of case on constructive submission or are there have been plenty of other courts that have dealt with these issues and have relied on representations from the states they had schedules but they were working towards completing t m deals and then accepted that as enough but with a schedule do we know from the from the opinions in those cases that they were skills that were in the same kind of each side can walk away agreement that there's a good representation i mean there are two separate things there have also been as mr to point out consent decrees of course that work exactly what any yeah but there have also been cases where the state said look we're working on these things we've deals because you don't need a binding plain you just need to come up with something right and i think if you look at it at the cases that we've been talking about kingman part merican can you cases like that you'll see that sort of language in that these are not you don't need a consent decree to agreement here because people can walk each side can walk away that's correct yes but the finding became in part decision discusses the facts in that case that support that but let her judge to conclude that you know you argument was i thought until today was and we've now remedy that we have in the state now has the step one and it is going to make it making efforts and it's doing a lot of work and watershed basis none of that they're not they're not bound by any agreements or commitments to do that they do it because that's how they can target their obligations under the clean water act and in this case bill i would think that your obligations under a federal statute would be more compelling even than your obligations under contract and i thought they had obligations under the barrel statute which were in fact going to be enforced by the e p a but the parent that's not that's not your position program with lots of employees maybe they will encounter technical difficulties insurmountable tekken but the i think what i hear your same and i am maybe wrong on this but what i hear you saying is that the agreement is a manifestation of the activity under the federal state partnership b p x is a technical clearinghouse the e p a is working with the state to help develop the new assessment tool they provided funding for some of the you know the monitoring and streams to build this measure of fish  make a plan anyway that's where you are right i mean what we're doing it is enough for now and we have they have a plan to complete the t m b else and no courts made a binding circuits mission where the state came in and said we're getting this done so i determine that there wasn't there wasn't progress in making the yes it can under the statute create its own that's right so if the state came to e p a for example conserve you know we just can't get these done you