1 The Honorable Barbara J. Rothstein
5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 6 AT SEATTLE
7 Case No. 2:21-cv-1637-BJR NORTHWEST ENVIRONMENTAL 8 ADVOCATES, ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT 9 Plaintiff,
10 v.
11 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al. 12 Defendants, 13 and 14 KING COUNTY and the CITY OF TACOMA, 15 Intervenor-Defendants. 16
17 I. INTRODUCTION 18 This matter is before the Court on cross motions for summary judgment by Plaintiff 19 Northwest Environmental Advocates (“Plaintiff”); Defendants Environmental Protection Agency 20 21 22 23
24 ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT 1 (“EPA”), Michael Regan, and Casey Sixkiller (collectively, “Defendants”),1 and 2 Intervenor-Defendants City of Tacoma and King County (collectively, “Intervenor-Defendants”). 3 Plaintiff brings a single claim under the citizen-suit provision of the Clean Water Act 4 (“CWA”), 33 U.S.C. § 1365(a)(2), alleging that Defendants failed to perform a nondiscretionary 5 duty under the CWA pertaining to pollution in Washington State’s Puget Sound. Having reviewed 6 the materials and the relevant legal authorities, the Court denies Plaintiff’s Motion for Summary 7 Judgment and grants the Motions for Summary Judgment filed by Defendants and 8 Intervenor-Defendants. The reasoning for the Court’s decision follows. 9 II. BACKGROUND 10 A. Procedural History 11 Plaintiff Northwest Environmental Advocates is a non-profit environmental organization
12 concerned with water and air quality in the Northwest. Amend. Compl. ¶ 14, Dkt. No. 24. Plaintiff 13 initiated this action in December 2021. In September 2022, the Court administratively closed the 14 case while the parties pursued settlement negotiations. In July 2024, following failed settlement 15 negotiations, the Court granted a joint motion by the parties to reopen the case. In November 2024, 16 the Court granted a joint motion by the City of Tacoma and King County to intervene in this action. 17 Plaintiff now moves for summary judgment on its CWA citizen-suit claim. Defendants have 18 jointly filed a cross-motion for summary judgment. Intervenor-Defendants have also jointly filed a 19 cross-motion for summary judgment. Additionally, each of the parties raise evidentiary objections. 20 B. The CWA Statutory Framework 21
22 1 Michael Regan is sued in his official capacity as Administrator of the EPA. Casey 23 Sixkiller is sued in his individual capacity as EPA Region 10 Administrator.
24 ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT 1 Congress passed the CWA to “restore and maintain the chemical, physical, and biological 2 integrity of the Nation’s waters.” 33 U.S.C. § 1251. In order to achieve that objective, Congress 3 declared as a “national goal” that the “discharge of pollutants into the navigable waters be 4 eliminated by 1985.” Id. § 101(a)(1). 5 The CWA’s regulatory program focuses on two potential sources of pollution: “point” 6 sources and “nonpoint” sources. A “point” source is any “discernible, confined and discrete 7 conveyance” from which pollutants may be discharged. See id. § 1362(14). A “nonpoint” source is 8 any non-discrete source, such as runoff from stormwater or irrigation of agriculture. Id. The CWA 9 regulates point source pollution through the National Pollution Discharge Elimination System 10 (“NPDES”) permit process. NPDES permits limit the discharge of pollutants through quantitative 11 limits on the amount of pollutants released from each point source. See id. § 1342. The EPA has
12 the authority to issue NPDES permits itself, id. § 1342(a), or delegate that responsibility to the 13 States, id. § 1342(b). It has done so in almost every State, including Washington. 39 Fed. Reg. 14 26,061 (1974). 15 As part of its regulatory program, § 303(d) of the CWA imposes duties on the states and the 16 EPA. States are required, subject to federal oversight, to adopt water quality standards for each 17 waterbody or waterbody segment within the state’s boundaries. 33 U.S.C. § 1313. If a waterbody 18 does not meet these standards or is not expected to meet them, the state must then designate that 19 body as a “water quality limited segment.” 40 C.F.R. § 130.2. The list of water quality limited 20 segments is known as the “303(d) list.” States are further required to establish a “priority ranking” 21 of the water quality limited segments based on “the severity of the pollution and the uses to be made
22 of such waters.” 33 U.S.C. § 1313(d)(1)(A). Consistent with these priorities, States must establish 23 “total maximum daily loads” (“TMDL”) for each pollutant impairing a water quality limited
24 ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT 1 segment. 40 C.F.R. § 130.2(f). A TMDL establishes the maximum amount of pollutants a water 2 quality limited segment can receive daily without violating the state’s water quality standards. Id. 3 States must submit the ranked list of water quality limited segments and TMDLs to the EPA 4 “from time to time.” 33 U.S.C. § 1313(d)(2). Once a submission is made, certain mandatory EPA 5 duties are triggered. First, within 30 days of submission, the EPA must approve or disapprove of 6 the water quality limited segments and corresponding TMDLs. Id. If the EPA approves a 7 submission, that submission is incorporated by the state into its continuing planning process and 8 NPDES permitting. Id. § 303(e)(3). If the EPA disapproves, the EPA must, within 30 days of the 9 disapproval, make its own identification of appropriate water quality limited segments or establish 10 its own TMDLs. Id. 11 C. Pollution and Dissolved Oxygen Levels in Puget Sound2
12 This case concerns the effects of pollution on dissolved oxygen levels in Puget Sound. Puget 13 Sound is an inlet of the Pacific Ocean comprised of a vast network of interconnected marine 14 waterways, river deltas, and basins that open to the Strait of Juan de Fuca and the Strait of Georgia. 15 See Administrative Record (“AR”)_0011044 n.1, AR_0016538-39, AR_0016544. These waters are 16 collectively referred to as the “Salish Sea.” Amend. Compl. ¶ 58. 17 It is undisputed by the parties that environmental pollution is endangering the health of 18 marine species in Puget Sound. One of the pollutants impairing Puget Sound is nitrogen. 19 AR_0007095, AR_0016537. Puget Sound receives nitrogen from both natural and anthropogenic 20 sources. AR_0007095, AR_0032430. Among the anthropogenic sources, wastewater treatment 21 facilities are Puget Sound’s largest source of nitrogen loading. AR_0007096, AR_0017555; see
23 2 The factual allegations referenced in this subsection are undisputed.
24 ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT 1 also AR_0013866 (showing sewage treatment plants contribute to nitrogen loading 60 percent 2 annually and 80 percent in summer). 3 Excess nitrogen fuels growth of marine plants like algae. AR_0016537. As these plants die 4 and decompose, they consume large amounts of dissolved oxygen, thereby lowering overall 5 dissolved oxygen levels. Id. Low levels of dissolved oxygen, in turn, lead to the migration, 6 weakening, and death of fish and other organisms. Id., AR_0007094, AR_0016626. Washington’s 7 water quality standards include minimum levels of dissolved oxygen. Amend. Compl. ¶ 108. As of 8 2019, the Washington Department of Ecology (“Ecology,” or the “State”) estimates that 9 approximately 20 percent of Puget Sound violates water quality standards for dissolved oxygen. 10 AR_0011044. 11 D. Efforts to Reduce Nitrogen Pollution and Improve Dissolved Oxygen Levels
12 Defendants assert that Ecology has made ongoing efforts to reduce anthropogenic nitrogen 13 loading caused by wastewater treatment facilities in Puget Sound, including (1) research using the 14 “Salish Sea Model,” (2) development of the Draft Puget Sound Nutrient Reduction Plan (“Nutrient 15 Reduction Plan” or “Plan”), and (3) development of TMDLs for Budd Inlet. 16 1. The Salish Sea Model 17 According to Defendants and Intervenor-Defendants, Ecology and the Pacific Northwest 18 National Laboratory began developing the Salish Sea Model in 2008 in an effort to better 19 understand and isolate the causes of low dissolved oxygen levels in Puget Sound. EPA Resp. & 20 Cross-MSJ at 11, Dkt. No. 65; Intervenors’ Resp. & Cross-MSJ at 8-9, Dkt. No. 66. The Salish Sea 21 Model is a computer tool that simulates hydrodynamic processes to assess how nutrients, including
22 23
24 ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT 1 nitrogen, affect water quality in the Salish Sea. AR_0001338.3 Defendants and 2 Intervenor-Defendants assert that using the Salish Sea Model to isolate the causes of low dissolved 3 oxygen levels for Puget Sound is a critical step in addressing those levels, given that they arise from 4 both natural and anthropogenic sources. EPA Resp. & Cross-MSJ at 10-12; Intervenors’ Resp. & 5 Cross-MSJ at 7-8; see also AR_0007095. 6 2. The Nutrient Reduction Plan 7 In June 2025, Ecology released for public comment the Nutrient Reduction Plan. 8 AR_0032411. The Nutrient Reduction Plan was developed using information gathered from the 9 Salish Sea Model. AR_0007100. Defendants describe the Plan as a “draft advance restoration plan 10 for all of Washington’s waters in the Salish Sea, including Puget Sound.” EPA Resp. & Cross-MSJ 11 at 13; see also AR_0032411. The Nutrient Reduction Plan states,
12 In more recent years EPA has acknowledged that the CWA allows other cleanup approaches to restore water quality such as an advance restoration plan (ARP). An 13 ARP contains many of the same elements as a TMDL but provides more flexibility in how cleanup efforts are approached with the goal of cleaning up water faster than 14 a traditional TMDL . . . . This plan details our ARP approach to meet marine dissolved oxygen DO standards which will be implemented prior to development 15 of a TMDL. In the event we cannot meet water quality standards with this approach the requirement to develop a TMDL still remains. 16 AR_0032423. The Plan purports to set total nitrogen loading targets for Puget Sound’s marine point 17 sources and watersheds at a level that attains dissolved oxygen standards across Puget Sound. 18 AR_0032441. The Plan states that these targets are meant to form the basis for effluent limitations 19 in NPDES permits. AR_0032446–47, AR_0032450–51. The Plan also provides a table with 20 21
22 3 See also Wash. Dep’t of Ecology, Salish Sea Model, https://ecology.wa.gov/research- data/data-resources/models-spreadsheets/modeling-the-environment/salish-sea-modeling (last 23 visited Mar. 21, 2026).
24 ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT 1 “Measurable Milestones” and target dates for completion of each milestone. AR_0032470. 2 Additionally, the Plan states that the milestones are set to enable achievement of the nitrogen targets 3 by 2050. AR_0032433. 4 3. The Budd Inlet TMDLs 5 Defendants assert that Ecology has started to address the need for Puget Sound dissolved 6 oxygen TMDLs, as evidenced by Ecology’s development of 13 dissolved oxygen TMDLs for Budd 7 Inlet. EPA Resp. & Cross-MSJ at 2 n.1, 9, 18, 22-23. Budd Inlet is an 8.3 square mile inlet to South 8 Puget Sound. AR_0000728. Budd Inlet was first added to the 303(d) list of impaired waters for low 9 dissolved oxygen in 1996. Id. According to a 2022 EPA Memorandum, the Inlet has been a focus 10 area for water quality improvements for many years because it has naturally low dissolved oxygen 11 levels and receives wastewater treatment discharges from the largest municipal plant in southern
12 Puget Sound. AR_0007099. 13 Since 1973, Ecology has consistently monitored dissolved oxygen levels at one Budd Inlet 14 location and less frequently at a second location. AR_0001320. Over the past 40 years, Ecology 15 has also completed multiple studies on Budd Inlet. For example, a 1986 study commissioned by 16 Ecology highlighted the problems caused by low dissolved oxygen within the Inlet, inculpating low 17 dissolved oxygen conditions in fish kills and water quality violations extending back to 1971. 18 AR_0001518. In the 1990s, several studies confirmed that the dissolved oxygen concentration for 19 Budd Inlet varies significantly between summer and winter. AR_0001327. In 2006, Ecology 20 conducted the South Puget Sound Dissolved Oxygen Study, which monitored dissolved oxygen 21 levels at multiple Budd Inlet sites. AR_0001340. In 2014, Ecology published a Report (the “2014
22 Report”) based on data obtained using the Salish Sea Model. AR_0016533, AR_0016643. The 2014 23 Report analyzed how Salish Sea dissolved oxygen concentrations respond to population increases,
24 ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT 1 ocean conditions, and climate change. AR_0016533. Additionally, the 2014 Report provided 2 predictions regarding the impact of future human nutrient loads on dissolved oxygen for Puget 3 Sound through the year 2070. AR_0016629. 4 In October 2022, Ecology submitted the 13 Budd Inlet TMDLs to the EPA. AR_0000726. 5 EPA approved the TMDLs around December 2022. Id. 6 III. DISCUSSION 7 A. Motions for Summary Judgment 8 “Summary judgment is appropriate when, viewing the evidence in the light most favorable 9 to the nonmoving party, there is no genuine dispute as to any material fact” and the movant is 10 entitled to judgment as a matter of law. Zetwick v. Cnty. of Yolo, 850 F.3d 436, 440 (9th Cir. 2017) 11 (quoting United States v. JP Morgan Chase Bank Acct. No. Ending 8215, 835 F.3d 1159, 1162 (9th
12 Cir. 2016)); Fed. R. Civ. P. 56(a). “The moving party bears the initial burden of identifying portions 13 of the record that demonstrate the absence of a fact or facts necessary for one or more essential 14 elements of each claim.” InteliClear, LLC v. ETC Glob. Holdings, Inc., 978 F.3d 653, 657 (9th Cir. 15 2020). “If the moving party meets this burden, the opposing party must then set out specific facts 16 showing a genuine issue for trial to defeat the motion.” Id. If the evidence proffered by the opposing 17 party “is merely colorable, or is not significantly probative, summary judgment may be granted.” 18 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citations omitted). On cross-motions 19 for summary judgment, the court considers each motion separately to determine whether either 20 party has met its burden with the facts construed in the light most favorable to the other. See 21 Fed. R. Civ. P. 56.
22 The parties dispute whether Ecology should be deemed to have constructively submitted no 23 Puget Sound dissolved oxygen TMDLs pursuant to the “constructive submission doctrine.” Section
24 ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT 1 505(a)(2) of the CWA authorizes citizens to institute actions in federal court against the EPA for 2 failure to perform any act or duty under the CWA that is not discretionary with the EPA. 33 U.S.C. 3 § 1365(a)(2). The CWA is silent as to the nature of the EPA’s obligations if a state fails to make 4 any TMDL submissions or fails to make a particular TMDL submission. In addressing this statutory 5 gap, courts have adopted the constructive submission doctrine.4 6 The constructive submission doctrine was first articulated by the Seventh Circuit in Scott v. 7 City of Hammond, 741 F.2d 992, 996 (7th Cir. 1984). In Scott, the Seventh Circuit held that, if a 8 state fails over a long period of time to submit proposed TMDLs, that prolonged failure may amount 9 to the constructive submission by that state of no TMDLs, which triggers the EPA’s mandatory 10 duty to act on that submission in accordance with the CWA. Id. In reaching this conclusion, the 11 Seventh Circuit reasoned,
12 We cannot allow the states’ refusal to act to defeat the intent of Congress that TMDL’s be established promptly—in accordance with the timetable provided in 13 the statute. In addition, to construe the relevant statute [any other way] would apparently render it wholly ineffective. There is, of course, a strong presumption 14 against such a construction.
15 Id. at 998. Since Scott, multiple other circuits have adopted some version of the constructive 16 submission doctrine. See, e.g., Hayes v. Whitman, 264 F.3d 1017, 1024 (10th Cir. 2001); San 17 Francisco BayKeeper v. Whitman, 297 F.3d 877, 883 (9th Cir. 2002). In BayKeeper, the Ninth 18 Circuit adopted the constructive submission doctrine, noting that “[u]nder this doctrine, a complete 19
20 4 The EPA asserts that the constructive submission theory is not a valid basis for a § 505(a) citizen suit because the constructive submission theory has no basis in the text of the CWA. EPA 21 Resp. & Cross-MSJ at 14-15. However, as the EPA acknowledges, the Ninth Circuit has upheld § 505(a) citizen suits alleging claims under the constructive submission doctrine. See Columbia 22 Riverkeeper v. Wheeler, 944 F.3d 1204, 1205 (9th Cir. 2019). Accordingly, the Court rejects EPA’s argument. 23
24 ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT 1 failure by a state to submit TMDLs will be construed as a constructive submission of no TMDLs, 2 which in turn triggers the EPA’s nondiscretionary duty to act.” BayKeeper, 297 F.3d at 881. 3 However, in adopting the constructive submission doctrine, the Ninth Circuit also adopted the 4 limitation imposed by other circuits that “‘[i]t applies only when the state’s actions clearly and 5 unambiguously express a decision’ not to submit TMDLs.” Id. at 882 (emphasis added) (quoting 6 Hayes, 264 F.3d at 1024). 7 Plaintiff asserts that (1) Ecology has never developed a TMDL to address Puget Sound-wide 8 impairment, and (2) Ecology has no schedule or credible plan for completing a Puget Sound 9 dissolved oxygen TMDL, and therefore, a constructive submission has occurred that triggered 10 EPA’s duty to develop its own TMDLs. Pl.’s MSJ at 14-17, 20-28, Dkt. No. 60. 11 In response, Defendants and Intervenor-Defendants contend that Ecology is producing
12 TMDLs at a reasonable pace and has already begun developing TMDLs to address low dissolved 13 oxygen levels in Puget Sound, as evidenced by the submission of the Budd Inlet TMDLs. EPA 14 Resp. & Cross-MSJ at 17-18; Intervenors’ Resp. & Cross-MSJ at 23. Defendants and 15 Intervenor-Defendants contend that Ecology’s Nutrient Reduction Plan is a reasonable interim plan 16 for addressing dissolved oxygen impairment in Puget Sound while Ecology exercises its discretion 17 to prioritize the development of other TMDLs. EPA Resp. & Cross-MSJ at 17, 20-23; Intervenors’ 18 Resp. & Cross-MSJ at 14-17, 21. Defendants and Intervenor-Defendants also assert that Ecology’s 19 stated commitment to developing further dissolved oxygen TMDLs for Puget Sound as needed 20 following implementation of the Nutrient Reduction Plan demonstrates that Ecology has not 21 abandoned its commitment to developing Puget Sound dissolved oxygen TMDLs. EPA Resp. &
22 Cross-MSJ at 18-19, 22; Intervenors’ Resp. & Cross-MSJ at 23. 23
24 ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT 1 As an initial matter, the parties make seemingly contradictory assertions regarding whether 2 Ecology has developed a Puget Sound TMDL. These contradictions result, in part, from the fact 3 that Plaintiff challenges EPA’s failure to develop a dissolved oxygen TMDL for Puget Sound as a 4 single watershed. See, e.g., Pl.’s MSJ at 14 (“Ecology has failed to develop and submit a Puget 5 Sound TMDL for nearly 30 years.”). Defendants do not dispute that Ecology has never developed 6 a single Puget Sound-wide TMDL for dissolved oxygen. However, Defendants correctly point out 7 that neither the CWA nor EPA regulations require a Sound-wide approach to TMDL development. 8 EPA Resp. & Cross-MSJ at 2 n.1. Defendants and Intervenor-Defendants also emphasize that 9 developing a single Sound-wide TMDL would present unique challenges given the complex 10 geography of the Sound, the numerous point and non-point sources that contribute to its pollution, 11 and a lack of readily available technology to address pollution at some point sources. See id. at 11
12 (“Unlike a typical river or stream where water flows one-way down a well-defined channel, Puget 13 Sound is an extremely complex waterbody carved up into inlets, coves, passageways, and 14 underwater ridges.”); Intervenors’ Resp. & Cross-MSJ at 7 (“[T]he Sound receives nitrogen from 15 diverse sources, including oceanic inflows, riverine inputs, atmospheric deposition, and wastewater 16 discharges.”); Intervenors’ Reply at 11, Dkt. No. 80 (“Advanced technology is not readily available 17 for all point source contributors of nutrients, despite [Plaintiff]’s argument to the contrary). Because 18 Ecology has discretion to establish dissolved oxygen TMDLs for individual waterbodies within 19 Puget Sound, the Court considers actions taken by Ecology with respect to those individual 20 waterbodies in addressing Plaintiff’s constructive submission claim. 21 Furthermore, in determining whether a state has constructively submitted no TMDLs,
22 relevant considerations may include (1) whether the state has failed to develop and submit a TMDL 23
24 ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT 1 for a prolonged period, and (2) whether the state has developed a schedule and credible plan for 2 producing the TMDL. See Riverkeeper, 944 F.3d at 1211. 3 As to the first consideration—failure to develop and submit a TMDL for a long period— 4 Ecology submitted the 13 Budd Inlet TMDLs in 2022. AR_0000726. The Court acknowledges that 5 Ecology’s submission of only 13 dissolved oxygen TMDLs after approximately 28 years is modest 6 progress at best. See id.; EPA Resp. & Cross-MSJ at 10. However, given the relatively recent 7 development of the Budd Inlet TMDLs, the Court cannot conclude that a constructive submission, 8 of no Puget Sound dissolved oxygen TMDLs has occurred. See BayKeeper, 297 F.3d at 883; Hayes, 9 264 F.3d at 1023 (“If a state has submitted or soon plans to submit TMDLs for its impaired 10 waterbodies, the constructive-submission analysis would be factually inapplicable.”). Indeed, in 11 BayKeeper, the Ninth Circuit found that no constructive submission occurred where California had
12 produced some TMDLs following a 15-year period during which California submitted no TMDLs. 13 BayKeeper, 297 F.3d at 883; see also Idaho Sportsmen’s Coal. v. Browner, 951 F. Supp. 962, 968 14 (W.D. Wash. 1996) (finding no constructive submission where 3 TMDLs were submitted and 15 approved over a 17-year period). Ecology’s submission of some TMDLs in this case is indicative 16 that Ecology has not abandoned development of Puget Sound dissolved oxygen TMDLs. 17 Regarding whether Ecology has a credible plan for completing the remaining Puget Sound 18 dissolved oxygen TMDLs, it is undisputed that, since submitting the 13 Budd Inlet TMDLs, 19 Ecology has declared its intent to pursue an alternative restoration plan in the form of the Nutrient 20 Reduction Plan. See AR_0032421. Plaintiff contends that the Nutrient Reduction Plan is an 21 inadequate alternative that Defendants and Ecology intend to use to indefinitely delay the
22 development of additional Puget Sound dissolved oxygen TMDLs. Pl.’s MSJ at 16-23. However, 23 the record contains ample evidence that Puget Sound is an extraordinarily complex waterbody
24 ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT 1 impacted by variable processes that influence dissolved oxygen levels. See, e.g., AR_0004778 2 (stating Ecology’s position that it does not have “all the data and analysis necessary to immediately 3 and effectively develop a TMDL for nutrients in a system as complex and vast as Puget Sound”), 4 AR_0007094 (“The Puget Sound is a large, dynamic and complex system influenced by large-scale 5 climatological, meteorological, watershed, and hydrological drivers that produce large spatial and 6 temporal variation in dissolved oxygen.”), AR_0016523-0016673. Given this complexity, 7 Ecology’s decision to postpone the development of additional dissolved oxygen TMDLs for Puget 8 Sound while pursuing additional research and exploring alternative methods for improving 9 dissolved oxygen levels is a reasonable course to follow. 10 Importantly, the Nutrient Reduction Plan proposes nitrogen loading targets for watersheds 11 that drain into Puget Sound while Ecology also conducts necessary research to better understand
12 the degree to which nitrogen pollution in various segments of Puget Sound is the result of 13 wastewater treatment plants. AR_32441-44, AR_0032470. This information, in turn, would enable 14 Ecology to develop scientifically supported effluent limitations for use in NPDES permits. 15 AR_32444. Furthermore, should the Nutrient Reduction Plan fail to obviate the need for Puget 16 Sound dissolved oxygen TMDLs, Ecology states that it intends to use the effluent limitations 17 developed through the Plan to produce the appropriate TMDLs. AR_0032421-23. 18 It is true that Ecology has already conducted multiple studies concerning dissolved oxygen 19 levels in segments of Puget Sound. See supra § II.D.3. Nevertheless, the evidence supports the 20 contention by Defendants and Intervenor-Defendants that further research is necessary to 21 effectively address low dissolved oxygen levels across Puget Sound more broadly. EPA Resp. &
22 Cross-MSJ at 25-27; AR_0007103; Latterell Decl. ¶¶ 7-8, Dkt. No. 69. Accordingly, the Nutrient 23 Reduction Plan represents “a reasonable interim measure rather than an abandonment of any future
24 ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT 1 plans to prepare a TMDL.” Sierra Club v. McLerran, No. 11-CV-1759-BJR, 2015 WL 1188522, at 2 *8 (W.D. Wash. Mar. 16, 2015). Given the ongoing Nutrient Reduction Plan together with the 3 submitted Budd Inlet TMDLs, this Court finds that the State has not clearly and unambiguously 4 decided not to submit Puget Sound dissolved oxygen TMDLs. Plaintiff’s Motion for Summary 5 Judgment is denied, and Defendants’ and Intervenor-Defendants’ Motions for Summary Judgment 6 are granted. 7 IV. ADMISSIBILITY OF EVIDENCE 8 On summary judgment, if a party “object[s] that the material cited to support or dispute a 9 fact cannot be presented in a form that would be admissible in evidence,” Fed. R. Civ. P 56(c)(2), 10 then “[t]he burden is on the proponent to show that the material is admissible as presented or to 11 explain the admissible form that is anticipated,” id., committee note to 2010 amendments. A district
12 court must rule on evidentiary objections that are material to its ruling. Norse v. City of Santa Cruz, 13 629 F.3d 966, 973 (9th Cir. 2010). 14 A. Plaintiff’s Evidence 15 Defendants and Intervenor-Defendants challenge the admissibility of most of the exhibits 16 to the Declaration of Andrew Hawley, Dkt. Nos. 61-1 through 61-19, and the Declarations of Nina 17 Bell, Dkt. No. 60-2, Ron Peltier, Dkt. No. 60-3, and Helen Bresler, Dkt. No. 60-4. 18 1. Exhibits to Andrew Hawley Declaration 19 Exhibits to the Hawley Declaration are historical in nature, whose sole purpose is to provide 20 background. EPA Resp. & Cross-MSJ at 30. As such, the Court finds that they are not material to 21 the Court’s ruling.
22 2. Declarations of Ron Peltier and Helen Bresler 23
24 ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT 1 Defendants and Intervenor-Defendants object to the Peltier and Bresler Declarations on 2 several grounds. Id.; Intervenors’ Reply at 19. Plaintiff responds that the Peltier and Bresler 3 Declarations were submitted to establish Plaintiff’s standing to bring this action. Pl.’s Resp. & 4 Reply at 32, Dkt. No. 75. 5 Since neither Defendants nor Intervenor-Defendants challenge Plaintiff’s standing to bring 6 this action, the Peltier and Bresler Declarations lack relevance and the objection is sustained. 7 3. Declaration of Nina Bell 8 Plaintiff proffers the Bell Declaration for historical context. Pl.’s Resp. & Reply at 32. As 9 such, the Court finds that it is not material to the Court’s ruling. 10 B. Intervenor-Defendants’ Evidence 11 Plaintiff challenges the admissibility of three declarations filed by Intervenor-Defendants:
12 the Declarations of Kamuron Gurol, Dkt. No. 68, Ramiro Chavez, Dkt. No. 70, and Joshua Latterell. 13 Pl.’s Resp. & Reply at 33-37. Plaintiff contends that each of these Declarations are inadmissible 14 and should be stricken because they are not relevant to the question of whether the State has 15 constructively submitted no Puget Sound dissolved oxygen TMDLs to EPA. Id. at 33. Plaintiff also 16 asserts that each of the challenged Declarations contain inadmissible expert testimony and opinion 17 testimony, hearsay, speculation, and conclusory statements that are not based upon the witness’ 18 personal knowledge. Id. at 34-37. Plaintiff further contends that Defendants have failed to establish 19 the qualifications of each witness. Id. at 34-35. 20 1. Declaration of Kamuron Gurol 21 The Court overrules Plaintiff’s objections to paragraphs 1-20 of the Gurol Declaration.
22 Evidence is relevant if “it has any tendency to make a fact more or less probable . . . and th[at] fact 23 is of consequence in determining the action.” Crawford v. City of Bakersfield, 944 F.3d 1070, 1077
24 ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT 1 (9th Cir. 2019) (quoting Fed. R. Evid. 401). Paragraphs 1-20 of the Gurol Declaration easily meet 2 the relevancy standard. As Intervenor-Defendants point out, the Gurol Declaration discusses the 3 technical challenges and costs of upgrading wastewater treatment plants and concomitant impacts 4 on ratepayers. See Intervenors’ Reply at 15. These considerations are relevant to how the State 5 prioritizes TMDL development and the timeline for such development. 6 Regarding the remaining objections to paragraphs 1-20, admissible declarations or 7 affidavits must be based on personal knowledge, must set forth facts that would be admissible in 8 evidence, and must show the declarant or affiant is competent to testify on the matters stated. Fed. 9 R. Civ. P. 56(c)(4). 10 The Court concludes that paragraphs 1-20 of the Gurol Declaration meet the personal 11 knowledge requirement. Gurol is the Director of the Wastewater Treatment Division in King
12 County, Washington and states that his Declaration is based on personal knowledge. Gurol 13 Decl. ¶¶ 2-3. This information is sufficient to infer personal knowledge. The Court thus overrules 14 the objections to paragraphs 1-20 based on lack of personal knowledge and foundation. The Court 15 also overrules the other objections to paragraphs 1-20 of the Gurol Declaration. As to the remaining 16 part of the Gurol Declaration, paragraphs 21-28, those paragraphs are largely redundant of other 17 materials in the record and the Court has not relied on them. 18 2. Declaration of Ramiro Chavez 19 Plaintiff objects to several paragraphs of the Chavez Declaration as hearsay, including 20 paragraphs 9, 20, 21 25-26, 33-36, 39, and 41. The Court has not relied on these paragraphs in 21 reaching its decision. As to the remaining portions of the Chavez Declaration, the Court overrules
22 Plaintiff’s objections. Like the Gurol Declaration, the Chavez Declaration provides relevant 23 information regarding the technical challenges and costs of upgrading wastewater treatment plants
24 ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT 1 and concomitant impacts on ratepayers. Chavez’s personal knowledge can be inferred from his 2 position as Director of the Environmental Services Department and City Engineer for the City of 3 Tacoma, Washington and his sworn statement that his Declaration is based on personal knowledge. 4 Chavez Decl. ¶ 1. 5 3. Declaration of Joshua Latterell 6 The Court finds that the Latterell Declaration is admissible. The Latterell Declaration 7 discusses considerations relevant to the development of TMDLs. See Intervenors’ Reply at 14-17. 8 As to Plaintiff’s objection to Latterell’s expertise under Federal Rule of Evidence 702, 9 Intervenor-Defendants have provided the Court with a copy of Latterell’s curriculum vitae (“CV”). 10 Latterell CV, Dkt. No. 82-1. The CV sufficiently establishes Latterell’s qualifications. See id. 11 Additionally, the Court finds the Latterell Declaration sufficiently identifies the basis and reasons
12 for his expert opinion, the information that he considered in forming the opinions, and that his 13 expert testimony is the product of reliable principles and methods. 14 V. CONCLUSION 15 For the foregoing reasons: 16 1. Plaintiff’s Motion for Summary Judgment (Dkt. No. 60) is DENIED. 17 2. Defendants’ Motion for Summary Judgment (Dkt. No. 65) is GRANTED. 18 3. Intervenor-Defendants’ Motion for Summary Judgment (Dkt. No. 66) is GRANTED. 19 DATED this 3rd day of April 2026. 20 A 21 B arbara Jacobs Rothstein 22 U.S. District Court Judge
24 ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT