Conservation Law Foundation, Inc. v. United States Environmental Protection Agency
223 F. Supp. 3d 124
D. Mass.2017Background
- Plaintiffs (Conservation Law Foundation and Charles River Watershed Association) sued EPA under the Clean Water Act citizen-suit provision, alleging EPA failed to require NPDES permits for stormwater point sources discharging to the Charles River.
- EPA approved three Charles River TMDLs (two for nutrients, one for pathogens) identifying stormwater as a major source of pollution and prescribing significant pollutant reductions for land-use categories.
- Plaintiffs argue the approved TMDLs amount to an EPA "determination" under the EPA’s residual designation authority (RDA), triggering a nondiscretionary duty to notify dischargers and distribute permit applications under 40 C.F.R. §122.26 and §124.52.
- EPA contends that a TMDL approval does not itself constitute an RDA ‘‘determination’’; the RDA requires a separate, affirmative exercise (with its own procedural steps), and the agency’s interpretation is entitled to deference.
- Plaintiffs sought leave to amend to add a claim that EPA failed to decide a citizen petition filed in 2013 within the regulatory 90-day period; the court found the proposed amendment defective because plaintiffs’ prior 60-day notice did not identify the 2013 petition.
- The court dismissed for lack of subject-matter jurisdiction (CWA citizen-suit prerequisite: a clearly mandated, nondiscretionary duty) and denied leave to amend as futile for failure to satisfy the notice requirement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether approval of TMDLs constitutes an RDA "determination" that creates a nondiscretionary duty to require NPDES permits for stormwater point sources | TMDLs include wasteload allocations that identify stormwater point sources and quantify contributions; those allocations "determine" that unpermitted stormwater contributes to violations, so EPA must notify dischargers and distribute permit forms | RDA requires an independent, affirmative determination separate from TMDL approval; the regulatory text contemplates RDA exercised "based on" TMDLs, not automatically by them | Court: TMDLs alone do not constitute an RDA determination; plaintiffs’ reading is not compelled by the text and would collapse statutory distinctions; EPA interpretation stands |
| Whether the court must defer to EPA’s interpretation of its RDA regulation | Plaintiffs: "determines" is unambiguous and does not permit extra procedural steps; Auer deference should not apply | EPA: its interpretation is reasonable, consistent with regulatory context and statutory scheme; entitled to Auer/agency deference | Court: EPA’s interpretation is reasonable and entitled to deference; plaintiffs’ contrary reading is at best ambiguous |
| Whether plaintiffs’ proposed amendment asserting EPA’s failure to decide the 2013 citizen petition is timely and sufficiently noticed | Amendment asserts EPA missed the 90-day regulatory deadline for the 2013 petition; plaintiff seeks to add claim now | EPA: amendment is futile because plaintiffs’ required 60-day notice to the Administrator did not identify the 2013 petition and thus failed the notice precondition to suit | Court: Denied amendment as futile — plaintiff’s earlier notice concerned a different (2009) petition and did not give "reasonable specificity" about the 2013 petition |
| Whether the suit may proceed under CWA citizen-suit waiver of sovereign immunity (jurisdiction) | Plaintiffs: EPA’s failure to act on TMDL-based RDA obligations is a nondiscretionary duty, waiving sovereign immunity | EPA: no nondiscretionary duty arises because it has discretion whether and how to exercise RDA; sovereign immunity bars suit absent clear nondiscretionary duty | Court: Dismissed for lack of subject-matter jurisdiction; no nondiscretionary duty shown |
Key Cases Cited
- Auer v. Robbins, 519 U.S. 452 (1997) (agency’s interpretation of its own regulation generally controlling unless plainly erroneous or inconsistent)
- Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597 (2013) (CWA gives EPA broad discretion in stormwater regulation)
- Am. Farm Bureau Fed’n v. U.S. E.P.A., 792 F.3d 281 (3d Cir. 2015) (TMDLs standing alone do not create legally enforceable obligations)
- Miccosukee Tribe of Indians of Fla. v. U.S. E.P.A., 105 F.3d 599 (11th Cir. 1997) (CWA citizen suits require a clearly mandated, nondiscretionary duty)
- Hallstrom v. Tillamook County, 493 U.S. 20 (1989) (60-day notice serves to allow agency chance to address alleged failure and avoid citizen suit)
- Paolino v. JF Realty, LLC, 710 F.3d 31 (1st Cir. 2013) (notice requirement is mandatory condition precedent to CWA citizen suit)