Whitman

OVERVIEW

San Francisco BayKeeper, an environmental group, filed this action under the Clean Water Act (“CWA”), 33 U.S.C. § 1365 (b), seeking a declaration that the State of California had failed to implement an adequate water pollution control program and failed to establish total maximum daily loads (“TMDL”) of pollutants which could be introduced into polluted waters. BayKeeper contended that California was years behind in implementing a TMDL program, and consequently the U.S. Environmental Protection Agency (“EPA”) had a non-discretionary duty to establish water pollution standards for California because the State had failed to make the required submissions. Bay-Keeper appeals the district court’s dismissal of this claim on partial summary judgment, certified pursuant to Fed. R.Civ.P. 54(b). BayKeeper also challenges the district court’s reliance on the EPA’s Program Review document. We affirm.

I. BACKGROUND

A. Statutory Background

In 1972, Congress passed the Clean Water Act (“CWA” or “Act”) to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251 . In order to attain this objective, Congress sought to…