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Conservation Law Foundation, Inc. v. Pruitt

United States Court of Appeals, First Circuit

January 24, 2018

CONSERVATION LAW FOUNDATION, INC., Plaintiff, Appellant,
v.
SCOTT PRUITT, Administrator of the United States Environmental Protection Agency; DEBORAH SZARO, in her capacity as Acting Regional Administrator, United States Environmental Protection Agency, Region 1, Defendants, Appellees. CONSERVATION LAW FOUNDATION, INC.; CHARLES RIVER WATERSHED ASSOCIATION, INC., Plaintiffs, Appellants,
v.
U.S. ENVIRONMENTAL PROTECTION AGENCY, Scott Pruitt, Administrator; U.S. ENVIRONMENTAL PROTECTION AGENCY, REGION I, Deborah Szaro, Acting Regional Administrator, Defendants, Appellees.

         APPEALS FROM THE UNITED STATES DISTRICT COURTS FOR THE DISTRICT OF RHODE ISLAND AND THE DISTRICT OF MASSACHUSETTS [Hon. Mary M. Lisi, U.S. District Judge] [Hon. Richard G. Stearns, U.S. District Judge]

          Christopher Kilian, with whom John Maxwell Greene and Conservation Law Foundation were on brief, for appellants.

          David Gunter, Environment and Natural Resources Division, U.S. Department of Justice, with whom Jeffrey H. Wood, Acting Assistant Attorney General, and Eric Grant, Deputy Assistant Attorney General, were on brief, for appellees.

          Before Torruella, Lipez, and Kayatta, Circuit Judges.

          KAYATTA, Circuit Judge.

         In this consolidated appeal, Conservation Law Foundation ("CLF") and Charles River Watershed Association ("CRWA") (collectively "plaintiffs") challenge the dismissal of their claims against the Environmental Protection Agency. 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. The principal question before us is whether the EPA's role in developing and approving several so-called TMDLs in Massachusetts and Rhode Island constituted a decision that required the EPA to send section 124.52(b) notices. For the following reasons, we find that it did not and we therefore affirm the dismissal of both suits.

         I.

         A.

         The purpose of the Clean Water Act is to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). To accomplish this goal, the Act and its implementing regulations establish various tools aimed at bringing waters of the United States into compliance with regulatory standards. Three such tools are relevant to this case: (1) the Act's permitting scheme, specifically its storm water permitting requirements; (2) the development and approval of total maximum daily loads ("TMDLs"); and (3) what is commonly called the Act's citizen-suit provision.

         1.

         The basic requirement of the Act's permitting system is that all discharges from a "point source, " defined as "any discernible, confined and discrete conveyance, " 33 U.S.C. § 1362(14), must obtain a permit. 33 U.S.C. § 1342(a). This permitting program is called the National Pollutant Discharge Elimination System ("NPDES"). See generally 33 U.S.C. § 1342. Certain states, such as Rhode Island, have been authorized by the EPA to administer their own state-level versions of the permitting system. See 33 U.S.C. § 1342(b).

         In 1987, Congress amended the Act to address the problem of polluted storm water. The amendment established that two types of storm water discharges, not relevant here, require NPDES permits. 33 U.S.C. § 1342(p). In addition, Congress authorized the EPA to determine that certain other storm water discharges also require permits. 33 U.S.C. § 1342(p)(2)(E). This additional power is known as the EPA's "residual designation authority."[1] See Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832, 873-78 (9th Cir. 2003). Through regulation, the EPA has clarified that authority as follows:

On and after October 1, 1994, for discharges composed entirely of storm water, that are not [otherwise required] to obtain a permit, operators shall be required to obtain a NPDES permit only if: . . .
(C) The Director, or in States with approved NPDES programs either the Director or the EPA Regional Administrator, determines that storm water controls are needed for the discharge based on wasteload allocations that are part of "total maximum daily loads" (TMDLs) that address the pollutant(s) of concern; or
(D) The Director, or in States with approved NPDES programs either the Director or the EPA Regional Administrator, determines that the discharge, or category of discharges within a geographic area, contributes to a violation of a water quality standard or is a significant contributor of pollutants to waters of the United States.

40 C.F.R. ยง 122.26(a)(9)(i)(C)-(D). Additional regulations implementing the permitting ...


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