Conservation Law Foundation (plaintiff) sued the U.S. Environmental Protection Agency (EPA) alleging that it failed to carry out its non-discretionary duties under the federal Clean Water Act (CWA). Specifically, plaintiff alleged EPA failed to notify dischargers that contributed to water quality violation of their obligation to obtain discharge permits under the state’s National Pollutant Discharge Elimination System’s (NPDES) program, and to provide such dischargers with permit applications. Petitioner alleged that EPA’s approval of the state’s Total Maximum Daily Load (TMDL) for certain Rhode Island waterbodies constituted a determination by EPA that stormwater discharges from certain commercial and industrial facilities contributed to violations of water quality standards as to bacterial and phosphorus concentrations in the water bodies, and that stormwater controls were necessary from these facilities. EPA filed a motion to dismiss for lack of jurisdiction and for failure to state a complaint alleging that, in approving the TMDLs at issue, it did not make a determination that NPDES permits were required, and that there was not legal requirement for it to notify dischargers of permit requirements or to send them permit applications. The U.S. District Court granted EPA’s motion holding that in approving the TMDL reports, EPA made no determination of any stormwater discharges contributing to water quality violations—its review was limited to ascertaining that and how the respective TMDL reports met the statutory and regulatory requirements of TMDLs in accordance with CWA § 303(d). [Conservation Law Foundation v. U.S. Environmental Protection Agency, ___F.Supp.3d___, Case No. 15-165-ML (D. RI Dec. 13, 2016).]

The court denied plaintiff’s motion based on a lack of jurisdiction. In the absence of an independent determination by the EPA that the stormwater discharges contributed to water quality standard violations, the EPA’s decision not to require permits for the discharges doesn’t constitute a CWA violation, so the court has no jurisdiction over the matter.

(Thierry Montoya)