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First Circuit Holds EPA Has Discretion Whether to Serve Individual Clean Water Act Notices On Stormwater Dischargers

The U.S. Court of Appeals for the First Circuit upheld the dismissal of two claims against the U.S. Environmental Protection Agency (EPA) for lack of jurisdiction where the plaintiffs could not show their claims fell within the citizen suit provision of the Clean Water Act. The court found the EPA’s challenged conduct—declining to send individual written notices to stormwater dischargers—did not constitute a “failure…to perform an act or duty…which is not discretionary” and therefore petitioners’ claims could not survive a jurisdictional challenge. [Conservation Law Foundation, et al. v. Scott Pruitt, Administrator of the U.S. Environmental Protection Agency et al., 881 F.3d 24 (1st Cir. 2018).]

 

Factual and Procedural Background

The objective of the federal Clean Water Act (CWA) is to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” To accomplish this goal, the CWA and its implementing regulations create various tools aimed at bringing waters of the United States into compliance with regulatory standards. Three of these tools are relevant in this case: 1) the CWA’s permitting storm water permitting scheme, 2) the development and approval of Total Maximum Daily Loads (TMDLs), and 3) the CWA’s citizen suit provision.

The basic requirement of the CWA’s permitting system is that all discharges from a “point source,” defined as “any discernible, confined and discrete conveyance,” must obtain a permit. States are required to establish water quality standards and to identify waters that fail to meet those standards. As a way to further bring impaired waters into compliance, states are further directed to develop TMDLs, which represent the maximum amount of a particular pollutant that can be released into a waterway while still maintaining water quality standards. EPA regulations state that for discharges composed entirely of stormwater, the EPA Director shall have the authority to require permits where that stormwater discharge might contribute to the TMDLs of a certain pollutant. To increase the likelihood these CWA’s regulations are enforced, the law provides a citizen-suit provision where a citizen can bring an action against the EPA Administrator for failing to perform a non-discretionary duty under the CWA:

. . .Plaintiffs’ two suits focus on 40 C.F.R. § 124.52(b), a regulation promulgated under the Clean Water Act. This regulation calls for the EPA to send a written notice to a discharger of storm water whenever the EPA “decides that an individual permit is required” for the discharge. The notice informs the discharger of the EPA’s decision and the reasons for it, and includes a permit application.

From 2005 to 2011, the Rhode Island Department of Environmental Management developed a number of the TMDLs at issue in this case, including for Mashapaug Pond and portions of the Sakonnet River. The Massachusetts Department of Environmental Protection developed TMDLs for the Charles River over the same period of time. The EPA approved these TMDLs, finding that they met the requirements of the CWA.

In April 2015, plaintiffs sued the EPA in the District of Rhode Island, seeking a court order requiring the EPA to notify all commercial and industrial dischargers of stormwater within the watersheds covered by the TMDLs that they must obtain discharge permits. A few months later, plaintiffs brought a nearly identical action in the District of Massachusetts. The two district courts determined the EPA’s decision to not send out written notices to stormwater dischargers did not constitute a “failure” to perform a non-discretionary act and therefore did not fall under the purview of the CWA citizen suit provision. Accordingly, the claims were dismissed for want of jurisdiction. Plaintiffs appealed and their suits were consolidated for review in the 1st Circuit.

 

The First Circuit’s Decision

The court’s reasoning in denying the plaintiffs’ appeal and upholding the dismissal hinged on the determination the EPA did not fail to perform a non-discretionary duty in declining to serve written notices on stormwater dischargers. Plaintiffs argument was distilled by the court to three steps: 1) in helping to develop and in approving the TMDLs in Rhode Island and Massachusetts, the EPA came to the conclusion that stormwater controls are needed for discharges identified in the TMDLs; 2) this conclusion triggered a duty by the EPA to “notify the discharger in writing” of its decision that the discharger is required to obtain a permit and to “send an application form with the notice;” 3) this duty was non-discretionary and therefore was the proper subject of a CWA citizen suit.

 

Discretionary and Non-Discretionary Duties

The EPA responded with a variety of arguments but the one used by the court was that the EPA’s approval of the TMDLs was not a decision requiring an individual permit pursuant to CWA regulations. The court notes the EPA’s involvement with TMDLs is simply to review for compliance with the CWA. There is no equivalency between the certification of a TMDL’s conformity with the CWA and the determination that a stormwater discharger requires a permit. Plaintiffs argued the EPA must send notice and application forms to specific, “identified” dischargers, even though the TMDLs themselves do not identify who those dischargers are and the data in the TMDLs does not contain the level of specificity necessary to make those decisions. The court found that despite plaintiffs’ contentions, the EPA only has a duty to notify when it decides that an individual permit is necessary, not merely when TMDLs are certified.

The court also went to great lengths to note the plaintiffs’ arguments, practically speaking, would require the EPA to notify all property owners in the 70,000 TMDLs already approved and active in watersheds across the country. Ultimately, the court found the EPA’s approval of the TMDLs was not a decision such that an individual permit was required nor was it a decision that triggered the notice requirement, and therefore the EPA did not fail to perform a non-discretionary duty:

. . .Importantly, though, the TMDLs do not identify by name or address any individual dischargers, nor do they attempt to designate which specific properties within the studied areas actually discharge storm water. In practical terms, they do not differentiate, for example, an organic farm with a cistern from a large house with a long, impervious driveway. Plaintiffs nevertheless ask us to rule that the EPA must send a written notice under section 124.52(b) to every landowner and business in the area covered by each TMDL. . . . Simply put, there is nothing in the TMDLs themselves—and hence nothing in the EPA’s approval of the TMDLs—that even suggests an undertaking to make individualized determinations. Rather, the TMDLs address discharges at the abstract level of source type. . . . We therefore conclude that the EPA’s approval of the TMDLs was not a decision that an individual permit was required, that it therefore did not trigger the notice requirement, and that, consequently, the complaints allege no failure by the EPA to perform a nondiscretionary duty.

 

Conclusion and Implications

This case serves to further outline the requirements for citizen suits under the CWA and the nature of the EPA’s actions regarding TMDLs. Environmental groups and other interested plaintiffs should take care to properly allege jurisdiction when looking to sue under the CWA’s citizen suit provision. The court’s decision is available online at: http://media.ca1.uscourts.gov/pdf.opinions/17-1166P-01A.pdf

(Danielle Sakai, Holland Stewart)