Conservation Law Foundation, Inc. v. Pruitt
881 F.3d 24
1st Cir.2018Background
- CLF and CRWA sued EPA challenging its failure to send written notices and permit applications under 40 C.F.R. § 124.52(b) after EPA approved several state-developed TMDLs in Massachusetts and Rhode Island.
- EPA-approved TMDLs (2005–2011) addressed stormwater-related pollutant loadings via aggregate wasteload allocations rather than identifying specific dischargers.
- Plaintiffs argued EPA’s involvement in developing and approving TMDLs amounted to a determination under 40 C.F.R. § 122.26(a)(9)(i)(C)–(D) that certain stormwater dischargers require NPDES permits, triggering § 124.52(b)’s mandatory notice duty.
- EPA responded that TMDL approval is not an individualized decision that an individual permit is required and that § 124.52(b) is triggered only by a case‑by‑case determination.
- District courts dismissed both suits for lack of jurisdiction, holding plaintiffs failed to allege a nondiscretionary duty by EPA under the Clean Water Act citizen‑suit waiver (33 U.S.C. § 1365(a)(2)).
- The First Circuit consolidated the appeals and affirmed dismissal, concluding TMDL approvals do not constitute the required individualized decision to trigger § 124.52(b).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether EPA's approval of state TMDLs constitutes a decision that individual NPDES permits are required under 40 C.F.R. § 124.52(b) | Approval of TMDLs (and EPA involvement) effectively determines stormwater controls or contributions to violations, triggering § 124.52(b) notice duty | TMDL approval is programmatic/aggregate and not an express, case‑by‑case decision that individual permits are required; § 124.52(b) requires an individualized determination | Held: No — TMDL approval is not a decision that an individual permit is required and does not trigger § 124.52(b) notice duty |
| Whether a duty created by EPA regulations (rather than statute) is enforceable in a citizen suit under 33 U.S.C. § 1365(a)(2) | Plaintiffs assume § 124.52(b) is a nondiscretionary duty enforceable via citizen suit | EPA argues regulatory duties may not be subject to citizen‑suit enforcement and/or are discretionary without a deadline | Court did not decide this issue; resolved case on ground that no nondiscretionary § 124.52(b) duty was triggered by TMDL approvals |
| Whether aggregate wasteload allocations in TMDLs suffice to identify "dischargers" for notice purposes | TMDLs' categories/geographic scope are sufficient to identify categories of dischargers; EPA can readily identify specific owners/operators from maps/data | TMDLs do not identify named or particular operators; § 124.52(b) is triggered only by case‑by‑case determinations or formal residual designations | Held: TMDLs' aggregate allocations are insufficient; EPA must make a separate, particularized determination to trigger § 124.52(b) |
| Whether EPA could be compelled to require individual rather than general permits so notice would be meaningful | Plaintiffs argued lack of general permits means individual permits are the only option | EPA noted it retains discretion to adopt general permits and historically uses residual designation petitions for individualized decisions | Held: Because EPA could lawfully adopt general permits, there is no nondiscretionary duty to notify for individual permits upon TMDL approval |
Key Cases Cited
- Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832 (9th Cir. 2003) (discusses EPA residual designation authority)
- U.S. Dep't of Energy v. Ohio, 503 U.S. 607 (1992) (waiver of sovereign immunity construed strictly)
- McMahon v. United States, 342 U.S. 25 (1951) (strict construction of government waivers)
- Esso Standard Oil Co. (Puerto Rico) v. Rodríguez‑Pérez, 455 F.3d 1 (1st Cir. 2006) (standards of appellate review)
- Paul Revere Life Ins. Co. v. Bromberg, 382 F.3d 33 (1st Cir. 2004) (standards of appellate review)
- Auer v. Robbins, 519 U.S. 452 (1997) (deference to agency's interpretation of its regulations)
- Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597 (2013) (Auer deference where consistent with agency practice)
- Whitman v. American Trucking Ass'ns, 531 U.S. 457 (2001) (principle against reading major policy shifts into ambiguous provisions)
- Michigan v. EPA, 135 S. Ct. 2699 (2015) (consideration of agency administrative practice in interpretation)