Whitman
San Francisco BayKeeper v. Whitman
Opinion
Lead Opinion
Hug, J.
ORDER AND OPINION
ORDER
The Opinion filed on April 15, 2002, and reported at 287 F.3d 764 , is withdrawn and the opinion attached to this order shall be filed in its place. With the filing of the opinion, the panel unanimously votes to deny the petition for rehearing. Judge Tashima votes to deny the petition for rehearing en banc and Judges Hug and Cudahy so recommend.
The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on en banc rehearing. Fed. R.App. P. 35(b).
OPINION
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…