F I L E D

United States Court of Appeals

Tenth Circuit

PUBLISH

AUG 29 2001

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PATRICK FISHER
Clerk

DR. MARK HAYES, an individual;

ED BROCKSMITH, an individual;
OKLAHOMA WILDLIFE
FEDERATION, an Oklahoma nonprofit corporation; SAVE THE
ILLINOIS RIVER, INC., an Oklahoma
non-profit corporation,
Plaintiffs - Appellants,

v.

CHRISTIE WHITMAN, in her

capacity as Administrator of the
United States Environmental
Protection Agency; UNITED STATES
ENVIRONMENTAL PROTECTION
AGENCY REGION VI; GREGG A.
COOKE, in his capacity as Regional
Administrator for the United States
Environmental Protection Agency
Region VI, 1

No. 00-5113

Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. Nos. 97-CV-1090-BU & 99-CV-20-BU)

Pursuant to Fed. R. App. P. 43(c), Christie Whitman has been substituted

for Carol Browner and Gregg A. Cooke has been substituted for Jane Saginaw.
1

Blake K. Champlin of Shipley, Jennings & Champlin, P.C., Tulsa, Oklahoma, for
Plaintiffs-Appellants.
Joan M. Pepin, Attorney, United States Department of Justice, Washington, D.C.
(Lois J. Schiffer, Assistant Attorney General; John A. Bryson and Eric G.
Hostetler, Attorneys, United States Department of Justice; and Michael G. Lee, Of
Counsel, Environmental Protection Agency, Washington, D.C., and David
Gillespie, Of Counsel, Environmental Protection Agency, Dallas, Texas, with her
on the brief), for Defendants-Appellees.
Before EBEL, ANDERSON and MURPHY, Circuit Judges.
EBEL, Circuit Judge.
This case is about a long-neglected provision of the Clean Water Act that
obligates the states to develop pollution limits for waters that are not meeting
applicable quality standards. These limits (known as TMDLs) are submitted to
the Environmental Protection Agency (EPA), and the EPA must approve or
disapprove them. In their complaints, Plaintiffs alleged that Oklahoma has never
submitted TMDLs for the EPA to review, that this complete failure constitutes a
constructive submission of no TMDLs, and that the EPA has a mandatory duty
to approve or disapprove the constructive submission.
The EPA produced uncontradicted evidence that Oklahoma has in fact
submitted (and the EPA has approved) a small number of TMDLs and has a
schedule to develop many more TMDLs over the next twelve years. Although

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Plaintiffs dispute the adequacy of the approved TMDLs, we hold that in these
circumstances a constructive-submission theory does not apply.
Because Plaintiffs complaints did not attack the EPAs approval of the
allegedly inadequate TMDLs, they may not now proceed on that theory. In
addition, the district court did not abuse its discretion in denying Plaintiffs
motion to amend their complaint well into this litigation to add this new theory.
Finally, we hold that Plaintiffs waived their right to challenge the district courts
exclusion of their expert affidavit because they failed to raise this objection to the
magistrate judges report. We therefore AFFIRM the district courts rulings.

BACKGROUND
Among other provisions, the Clean Water Act, 33 U.S.C. 1251-1376,
requires the states to implement programs that protect the quality of intrastate
waters. Id. 1313. Each state first establishes, subject to EPA approval and
ongoing review, water quality standards: designated uses for a body of water and
water quality criteria based on such uses. Id. 1313(a)-(c); 40 C.F.R. 130.3.
Oklahomas water quality standards are not at issue in this case.
The state must then identify the waters within its boundaries for which the
other regulatory requirements are not stringent enough to implement an applicable
water quality standard. 33 U.S.C. 1313(d)(1)(A). The state must rank its
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impaired waterbodies by priority, taking into account the severity of the

pollution and the uses to be made of such waters. Id.
For each impaired waterbody, in accordance with its priority ranking, the
state must establish a total maximum daily load (TMDL) for certain pollutants
identified by the EPA. Id. 1313(d)(1)(C). A TMDL establishes the maximum
daily discharge of pollutants into a waterway. Scott v. City of Hammond, 741
F.2d 992, 996 (7th Cir. 1984). 2 The lists of impaired waterbodies and TMDLs are
subject to EPA approval:
Each State shall submit to the Administrator from time to time, with
the first such submission not later than one hundred and eighty days
after [the Administrator first identifies those pollutants suitable for
TMDL measurement], for his approval the waters identified
[impaired waterbodies] and the loads [TMDLs] established . . . . The
Administrator shall either approve or disapprove such identification
and load not later than thirty days after the date of submission. If the
Administrator approves such identification and load, such State shall
incorporate them into its current [continuing planning process]. If
the Administrator disapproves such identification and load, he shall
not later than thirty days after the date of such disapproval identify
such waters in such State and establish such loads for such waters as
he determines necessary to implement the water quality standards
applicable to such waters and upon such identification and
The EPA recently revised its regulations to give a more detailed definition.
Under the new regulation, a TMDL is a written, quantitative plan and analysis
for attaining and maintaining water quality standards in all seasons for a specific
waterbody and pollutant. 40 C.F.R. 130.2(h). It must identify, among other
things, the greatest amount of pollution that the waterbody can tolerate without
violating its water quality standards, the amount by which the current level of
pollution deviates from this, and allocations of the maximum tolerable pollution
among various polluters and natural background sources. Id.
2

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establishment the State shall incorporate them into its current

plan . . . .
33 U.S.C. 1313(d)(2). The first submission was due in June 1979, 43 Fed. Reg.
60,662 (1978), and between 1992 and 2000, submissions were due biennially, on
April 1 of even-numbered years, 40 C.F.R. 130.7(d)(1) (2000). 3
Plaintiffs are individuals who use Oklahomas waters and groups that
advocate protecting water quality in the state. In their separate but virtually
identical complaints, they alleged that Oklahoma had identified over 500 impaired
waterbodies, but that in the eighteen years between 1979 (when the first
submission to the EPA was due) and 1997 (when the complaints were filed) the
state had failed to develop TMDLs for the impaired waterbodies. This failure,
they alleged, was so deficient as to constitute a constructive submittal of no
TMDLs, which in turn triggers the EPAs mandatory duty to develop the TMDLs
itself within thirty days.
The complaints focused primarily on the Clean Water Acts citizen-suit
provision, which confers jurisdiction on the district courts over civil actions
brought by any citizen . . . on his own behalf . . . against the Administrator
where there is alleged a failure of the Administrator to perform any act or duty
under [the Clean Water Act] which is not discretionary with the Administrator.
That provision has since been repealed. Beginning in 2002, a list of
impaired waterbodies must be submitted every four years. 40 C.F.R. 130.30(a).
3

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33 U.S.C. 1365(a). The complaints also alleged that the EPAs failure to
develop TMDLs in the face of Oklahomas constructive submission of no TMDLs
constitutes an arbitrary and capricious action and an abuse of discretion under
the Administrative Procedures Act (APA).
On the EPAs motion to dismiss, the district court accepted Plaintiffs
theory that a complete failure to submit TMDLs could constitute a constructive
submission of no TMDLs, triggering a mandatory duty of the EPA. The court
therefore found that Plaintiffs had stated a claim under the Clean Water Acts
citizen-suit provision and under the APA 706(1) to compel agency action
unlawfully withheld. It found, however, that Plaintiffs had not stated a claim
under APA 706(1) to compel agency action unreasonably delayed or
706(2)(A) to set aside agency action as arbitrary, capricious, or abuse of
discretion, as Plaintiffs had neither identified any final agency action nor had
Plaintiffs petitioned the EPA to act.
The parties agree that Oklahoma submitted no TMDLs before 1994. 4 It is
undisputed, however, that before this lawsuit was filed in December 1997 the
EPA had approved at least a small number (somewhere between three and twentyThis long delay is not unique to Oklahoma. Cf. NRDC v. Fox, 93 F. Supp.
2d 531, 539 (S.D.N.Y. 2000) (EPA Administrator Carol M. Browner . . . has
frankly acknowledged what some scholarly observers had previously suggested:
that the TMDL program was consciously neglected by the EPA until recent
years . . . . (footnote omitted)).
4

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nine) of TMDLs for impaired waterbodies, although Plaintiffs argue that none of
these met all the statutory and regulatory requirements for a TMDL. The EPA
presented uncontroverted evidence to the district court that in 1998 Oklahoma
established a schedule to complete more than 1400 TMDLs by 2010. Although
Oklahoma did not fully meet its first interim deadline in 1999, it has adjusted the
schedule and still expects to finish by 2010.
Given this undisputed evidence, a magistrate judge recommended granting
the EPAs motions for summary judgment and to strike an expert affidavit
Plaintiffs had submitted. Plaintiffs objected to the summary-judgment
recommendation and sought leave to amend their complaint to add APA claims
against the EPAs approval of the allegedly inadequate TMDLs. The district
court adopted the magistrate judges report and denied the motion to amend the
complaint. Plaintiffs now appeal from all of the orders.

DISCUSSION
The district court had jurisdiction under 28 U.S.C. 1331 and 33 U.S.C.
1365(a). We have jurisdiction under 28 U.S.C. 1291. We review de novo the
district courts dismissals for failure to state a claim upon which relief can be
granted, accepting all well-pleaded allegations in the complaint as true and
viewing them in the light most favorable to Plaintiffs. Sutton v. Utah State Sch.
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for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). We review the
district courts grant of summary judgment de novo, viewing the evidence in the
light most favorable to Plaintiffs. Simms v. Okla. ex rel. Dept of Mental Health
& Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999).

I. Clean Water Act Citizen-Suit Claim

The district court accepted Plaintiffs constructive submission theory,
which was first established in Scott v. City of Hammond, 741 F.2d 992, 996 (7th
Cir. 1984) (per curiam). Under Scott, if a state fails over a long period of time
to submit proposed TMDLs, this prolonged failure may amount to the
constructive submission by that state of no TMDLs. 741 F.2d at 996. Neither
party challenges this ruling by the district court, and we agree with Scott to this
extent: 5 A state may at least theoretically act in such a way that it conveys to the
EPA the message that it has affirmatively determined not to submit TMDLs for its
impaired waterbodies. Such conduct could be treated by a court as a
submission (a constructive submission) of no TMDLs. As a submission, it

It appears that only one court has rejected Scotts holding that a
constructive submission of no TMDLs can trigger a nondiscretionary duty. See
NRDC v. Fox, 30 F. Supp. 2d 369, 377 (S.D.N.Y. 1998) (holding that it lacked
jurisdiction under the Clean Water Acts citizen-suit provision, because EPA has
at least some discretion to determine at what point it is appropriate to deem state
inaction a constructive submission meriting intervention).
5

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would then trigger the EPAs nondiscretionary duty under 1313(d)(2) to approve
or disapprove the submission of no TMDLs within thirty days. If the EPA fails
to respond within this period, it is subject to suit under the citizen-suit provision
of the Clean Water Act to compel it to perform this nondiscretionary duty.
In Scott, the states had submitted no TMDLs, and this was enough to
overcome a motion to dismiss filed by the EPA. 741 F.2d at 997. The Seventh
Circuit remanded, instructing the district court to determine whether the failure to
submit TMDLs was in fact a constructive submission of no TMDLs:
There may be reasons, wholly unknown to us at this time, which may
justify the states failure to submit TMDLs and the EPAs
concomitant failure to act. However, on remand, the district court
may order the EPA to proceed as if the states had submitted
proposals of no TMDLs unless the EPA promptly comes forward
with persuasive evidence indicating the states are, or will soon be, in
the process of submitting TMDL proposals or that some factor
beyond the scope of the complaint has made TMDL submissions
impracticable.
Id. at 997 n.11 (emphasis added). Only upon this determination that the states
inaction was so clear as to constitute a constructive submission of no TMDLs
would the EPA then incur a nondiscretionary duty to approve or disapprove the
constructive submission. If the EPA approved the constructive submission i.e.,
if it determined for some reason that no TMDLs were needed then that decision
would be subject to judicial review like any other final agency action, presumably
under the APA. Id. at 997; cf. id. at 995 (holding that the EPAs duty to approve
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or disapprove a states water quality standards might be nondiscretionary, but the

content of the standards is certainly at least somewhat discretionary with the
EPA and therefore ordinarily must be challenged through an APA suit rather
than a Clean Water Act citizens suit). If, on the other hand, the EPA
disapproved the constructive submission, it would then be under a
nondiscretionary duty to develop its own TMDLs. Id. at 997.
The constructive-submission theory turns on whether the state has
determined not to submit a required TMDL for a given impaired waterbody. See
id. at 997 (noting that the complaint raises the possibility that the states have
determined that TMDLs are not needed (emphasis added)). If a state has
submitted or soon plans to submit TMDLs for its impaired waterbodies, the
constructive-submission analysis would be factually inapplicable. See, e.g., S.F.
Baykeeper, Inc. v. Browner, 147 F. Supp. 2d 991, 1002 (N.D. Cal. 2001)
(California and the EPA have both been doing something about TMDLs, albeit
not as rapidly as contemplated by the passage of the CWA. . . . The record does
not support plaintiffs contention that there has been a constructive submission of
no TMDLs.); Sierra Club v. Hankinson, 939 F. Supp. 865, 872 n.6 (N.D. Ga.
1996) (The Court does not find the constructive submission analysis to be
appropriate for this case because Georgia has made some TMDL submissions,
albeit totally inadequate. (emphasis in original)); cf. NRDC v. Fox, 93 F. Supp.
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2d 531, 542 (S.D.N.Y. 2000) ([S]o long as New York continues to participate
actively and meaningfully in the effort to promulgate TMDLs for the waterbodies
on its . . . priority list, the Court is of the view that the State has not refused to
act, and EPA therefore is under no duty to declare a constructive submission of
inadequate TMDLs by New York.); Idaho Sportsmens Coalition v. Browner,
951 F. Supp. 962, 968 (W.D. Wash. 1996) (noting that while Idaho had submitted
only two TMDLs and its schedule for future submissions was inadequate, a
constructive submission has not yet occurred). 6 As a corollary, the
constructive-submission theory is not designed to challenge the timeliness or
adequacy of the states TMDL submissions, which involve discretionary (rather
than nondiscretionary) duties of the EPA.
The constructive-submission theory that we accept under the Clean Water
Acts citizen-suit provision is necessarily a narrow one. It applies only when the
states actions clearly and unambiguously express a decision to submit no TMDL
for a particular impaired waterbody. Here, the evidence completely fails to

Plaintiffs cite Kingman Park Civic Assn v. EPA, 84 F. Supp. 2d 1, 3-5

(D.D.C. 1999), as a case in which a constructive submission of no TMDLs was
found even though the District of Columbia had submitted one TMDL after the
notice of intent to sue. Kingman Park is readily distinguishable from the facts of
this case, however. The Kingman Park opinion was on a motion to dismiss, and
the submitted TMDL had been rejected by the EPA as inadequate. Thus,
Kingman Park has little similarity to this case, where Oklahoma submitted (and
the EPA approved) a number of TMDLs before Plaintiffs notice of intent to sue.
6

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support Plaintiffs constructive-submission theory. 7 The uncontradicted evidence

is that Oklahoma has submitted a number of TMDLs and is making progress
toward completing about 1500 TMDLs over a twelve-year period. In these
circumstances, a constructive-submission claim is not viable. Because the only
nondiscretionary duty that Plaintiffs can allege is predicated upon a showing that
Oklahoma had made a constructive submission of no TMDLs, the district court
correctly found that Plaintiffs could not proceed under the Clean Water Acts
citizen-suit provision. We therefore affirm the grant of summary judgment for the
EPA on this issue.

II. APA Claims

Plaintiffs also asserted an APA challenge in their complaints, which the
district court dismissed in part and then granted summary judgment on the rest.
We may affirm on any grounds supported by the record, even if not relied upon by

Because the facts of this case do not meet the above criteria, we need not
decide any further parameters of the constructive-submission theory for
example, how much inaction by the state is needed to give rise to an inference
that there has been a constructive submission and when the EPAs duty to pass on
the constructive submission begins to run. Moreover, a recently promulgated
regulation may alleviate the need to consider these questions in the future as well.
See 40 C.F.R. 130.35(a)(2) (providing that the EPA will establish a TMDL if
the state fails to do so by the end of the one-year period in which the TMDL was
scheduled to be established; the EPA must then establish one within at most four
years).
7

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the district court. United States v. Sandoval, 29 F.3d 537, 542 n.6 (10th Cir.
1994).
The only APA challenge explicitly made in the complaints was to the
EPAs failure to fulfill its nondiscretionary duty to develop its own TMDLs after
Oklahomas constructive submission of no TMDLs. This argument duplicates the
one Plaintiffs brought under the Clean Water Act citizen-suit provision. Because
review of Plaintiffs claim is available under the Clean Water Act, it is not
subject to review under the APA. See 5 U.S.C. 704 (limiting APA review to
final agency action for which there is no other adequate remedy in a court);
Bowen v. Massachusetts, 487 U.S. 879, 903 (1988) (Congress did not intend the
general grant of review in the APA to duplicate existing procedures for review of
agency action.); Oregon Natural Res. Council v. United States Forest Serv., 834
F.2d 842, 851 (9th Cir. 1987) (dictum); Allegheny County Sanitary Auth. v. EPA,
732 F.2d 1167, 1177 (3d Cir. 1984). Thus, we hold that this APA claim should be
dismissed because it duplicates Plaintiffs Clean Water Act claim, and we express
no view on the other grounds relied on by the district court.
Plaintiffs argue that even if their constructive-submission theory fails, they
should be allowed under the APA to challenge the EPAs approval of the
allegedly inadequate TMDLs submitted by Oklahoma. This new theory was first
presented in Plaintiffs response to the EPAs Motion to Dismiss at the district
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court: EPAs approval of the States inadequate submissions, its tacit approval
of Oklahomas non-submissions over the past 19 years, and its decision
discretionary or not to not establish TMDLs for Oklahoma itself, are all agency
actions that are arbitrary and capricious . . . . While it might be appropriate for a
court to consider additional facts or legal theories asserted in a response brief to a
motion to dismiss if they were consistent with the facts and theories advanced in
the complaint, cf. Sterling v. Kazmierczak, 983 F. Supp. 1186, 1189 (N.D. Ill.
1997), a court may not consider allegations or theories that are inconsistent with
those pleaded in the complaint. E.g., Henthorn v. Dept of Navy, 29 F.3d 682,
688 (D.C. Cir. 1994) ([T]he sparse case law addressing the effect of factual
allegations in briefs or memoranda of law suggests that such matters may never be
considered when deciding a 12(b)(6) motion, and most certainly may not be
considered when the facts they contain contradict those alleged in the complaint.
(citations omitted)); Pennsylvania ex rel. Zimmerman v. Pepsico, 836 F.2d 173,
181 (3d Cir. 1988) ([T]he legal theories set forth in Pennsylvanias brief are
helpful only to the extent that they find support in the allegations set forth in the
complaint. It is axiomatic that the complaint may not be amended by the briefs in
opposition to a motion to dismiss. (alterations omitted)). The new theory of
improper approval of defective TMDLs submitted by Oklahoma is inconsistent
with Plaintiffs allegation in their complaints that Oklahoma has, for the last 18
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years, failed to develop TMDLs for the states impaired waterbodies. In their
complaints, Plaintiffs allege that Oklahoma did not submit any TMDLs and that
Oklahomas conduct amounted to a declaration that it did not intend to submit any
TMDLs. That is inconsistent with the argument Plaintiffs advanced in the brief in
opposition to the Motion to Dismiss, that Oklahoma had submitted TMDLs, but
they were defective and should not have been approved by the EPA. Thus, the
district court properly declined to consider it without a formal amendment to the
complaints.
Plaintiffs seem to think that it was unfair to require them to plead their
APA claim adequately in the complaints, because they did not know at that time
what (if any) actions the EPA had taken at that point. We find this unpersuasive.
The EPAs actions were matters of public record. Moreover, as we discuss
further below, Plaintiffs were on notice at least from the time that the EPA filed
its motion to dismiss that the EPA believed that Oklahoma had filed, and the EPA
had approved, a number of TMDLs. In spite of the EPAs suggestion that
Plaintiffs amend their complaint to allege specifically an APA claim based on the
EPAs alleged abuse of discretion in approving the submitted TMDLs, Plaintiffs
did not seek to do so at that time nor did they abandon the constructivesubmission theory. Indeed, one of the consolidated complaints in this case was
filed after the district court had dismissed the APA claims well after Plaintiffs
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were on notice that the EPA had taken some actions on Oklahomas TMDLs but
even this complaint did not assert a broader APA claim.
Because the complaints alleged only a narrow APA claim, one duplicative
of the Clean Water Act claim, we affirm the district courts dismissal of the APA
claims. We express no view on whether the TMDLs approved by the EPA meet
the applicable statutory and regulatory requirements.

III. Denial of Leave to Amend the Complaint

We review the district courts denial of a motion to amend a complaint for
abuse of discretion. Ramirez v. Oklahoma Dept of Mental Health, 41 F.3d 584,
596 n.9 (10th Cir. 1994). [W]e have often found untimeliness alone a sufficient
reason to deny leave to amend. Viernow v. Euripides Dev. Corp., 157 F.3d 785,
799 (10th Cir. 1998). In this case, the district court relied solely on Plaintiffs
undue delay in seeking to amend their complaint to add broader APA claims.
The proposed amendment would have added references to the APA
throughout the complaint. In particular, it would have (1) replaced the allegation
that Oklahoma failed to develop TMDLs with one that it failed to develop
TMDLs for all of its impaired waterbodies; and (2) added a sentence stating that
the EPAs approval of individual TMDL submissions from the State of
Oklahoma which do not comply with the TMDL statutory provisions or
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regulations and the EPAs failure to disapprove the inadequate quantity of TMDL
submissions from the State of Oklahoma both constitute final agency actions
subject to review under 706(2)(A).
Plaintiffs filed their first set of complaints in December 1997. They were
on notice that the EPA had approved some TMDLs at least from April 1998, when
the EPA filed its motion to dismiss and informed the court that it had approved
about forty TDMLs from Oklahoma since 1992. Rather than seek to amend their
complaint at that time, Plaintiffs filed a motion for reconsideration of the
dismissal of their APA claims. They also filed another complaint to cure a notice
problem but did not add additional APA claims. Thereafter, they filed a summary
judgment motion. Only after the magistrate judge recommended ruling against
them on their citizen-suit claim did they seek to amend. The application for leave
to amend was filed in February 2000. As the district court noted, this was more
than two years after the initial complaint and eighteen months after the
administrative record had been filed.
In these circumstances, it was within the district courts discretion to deny
leave to amend. This case is similar to Viernow, in which the plaintiff sought to
amend nineteen months after filing his initial complaint and only after the trial
court orally granted the defendants motion for summary judgment. 157 F.3d at
799-800. We saw no justification for the plaintiffs failure to amend at an earlier
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date, and noted that we do not favor permitting a party to attempt to salvage a
lost case by untimely suggestion of new theories of recovery. Id. at 800. We
therefore upheld the district courts denial of leave to amend. Id.
We affirm the district courts denial of leave to amend the complaint.

IV. Striking Plaintiffs Expert Affidavit

Plaintiffs argue that the district court erred in striking their affidavit from
Barry Sulkin, an expert on TMDLs. The affidavit set forth Sulkins opinion that
none of the TMDLs submitted by Oklahoma met all the statutory and regulatory
requirements for TMDLs. As the district court noted and Plaintiffs conceded at
oral argument, Plaintiffs failed to raise this in their objections to the magistrate
judges report. They therefore have waived the issue. Talley v. Hesse, 91 F.3d
1411, 1412 (10th Cir. 1996). When Plaintiffs were informed about waiver, as in
this case, we enforce the waiver unless the ends of justice dictate otherwise. Id.
at 1413. For the reasons given above, Sulkins affidavit, which is about the
substantive adequacy of the TMDLs approved by the EPA, is beyond the scope of
the legal issues in this case. We see no reason to think the ends of justice are
implicated by the courts striking this affidavit and therefore deem the issue
waived.

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CONCLUSION
We AFFIRM the district courts disposition in its entirety.

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