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.
No. 17-1166, No. 17-1354
United States Court of Appeals, First Circuit.
January 24, 2018
In sum, even assuming that intentional ABDW is a separate, divisible form of Massachusetts ABDW, the record to which we are allowed to look does not plainly show that Kennedy pled guilty to that form of the offense. Mathis, 136 S.Ct. at 2257. Therefore, Kennedy‘s ABDW conviction cannot serve as his third ACCA predicate and, since the government does not point to any other crime that could qualify, Kennedy was improperly sentenced as an armed career criminal. We therefore vacate the mandatory minimum sentence imposed by the district court and remand for resentencing without the ACCA enhancement.3
III. Conclusion
For the foregoing reasons, we affirm Kennedy‘s conviction and vacate his sentence.
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
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.”
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,”
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.
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.
(a) Various sections of part 122, subpart B allow the Director to determine, on a case-by-case basis, that certain storm water discharges (§ 122.26) that do not generally require an individual permit may be required to obtain an individual permit because of their contributions to water pollution.
(b) Whenever the Regional Administrator decides that an individual permit is required under this section, except as provided in paragraph (c) of this section, the Regional Administrator shall notify the discharger in writing of that decision and the reasons for it, and shall send an application form with the notice. The discharger must apply for a permit under § 122.21 within 60 days of notice, unless permission for a later date is granted by the Regional Administrator. The question whether the designation was proper will remain open for consideration during the public comment period under § 124.11 and in any subsequent hearing.
2.
In a separate section of the Act, Congress set forth the second regulatory tool relevant to this case. States are required to establish water quality standards and to identify waters that fail to meet those standards.
3.
In order to increase the likelihood that these and other requirements are implemented and enforced, the Act contains a citizen-suit provision that provides, in relevant part:
[A]ny citizen may commence a civil action on his own behalf—
. . .
(2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator.
As set forth more fully below, plaintiffs’ suits attempt to pull together these three
B.
We turn now to the facts and procedural history leading to this appeal. From 2005 to 2011, the Rhode Island Department of Environmental Management developed a number of TMDLs at issue in this case, including TMDLs for Mashapaug Pond and portions of the Sakonnet River. In 2007, the Massachusetts Department of Environmental Protection (“MassDEP“) developed two TMDLs for the Charles River and in 2011, developed a third TMDL for the river. The EPA approved all of these TMDLs, finding that they met the requirements of the Act and its implementing regulations. Most of the TMDLs were approved by the end of 2007, with two approved in 2011.
Years later, in April 2015, CLF sued the EPA in the District of Rhode Island. CLF, along with CRWA, also sued the EPA in the District of Massachusetts ten months later. Both suits sought a court order requiring the EPA to notify commercial and industrial dischargers of storm water within the watersheds covered by the TMDLs that they must obtain discharge permits.2 The two district courts determined, for slightly different reasons, that the EPA‘s challenged conduct (not sending written notices to storm water dischargers) did not constitute a “failure . . . to perform any act or duty . . . which is not discretionary.”
II.
To decide whether these suits against the federal government may proceed under the citizen-suit provision of the Act, we need determine whether plaintiffs have “alleged a failure of the Administrator” to perform a nondiscretionary duty.
Plaintiffs’ position can be summarized in three steps. According to plaintiffs, the EPA—in helping to develop and in approv
The EPA responds with an array of arguments. It contends that duties established by EPA regulations rather than statutory mandates may not be enforced in a citizen suit; that a duty without a deadline is not mandatory; and that its approval of the TMDLs is not a decision that an individual permit is required within the meaning of
Our reasoning begins with the TMDLs themselves. TMDLs are developed by state agencies and are incorporated into the state‘s planning process for overall water quality. See
More tellingly, even were one to construe the EPA‘s involvement in preparing and then approving a TMDL as an adoption by the EPA of the “findings” contained in the TMDL, those findings do not identify specific dischargers from whom individual permits are required. The TMDL approval documents contained in the record illustrate this point. Each approval follows a repetitive structure whereby the EPA recites a particular statutory or regulatory requirement for the TMDL, summarizes the state‘s research related to that requirement, and includes a brief “assessment” of the state‘s analysis. The Lower Charles River TMDL approval illustrates the length and level of specificity of the EPA‘s assessments. Regarding the requirement that the TMDL include wasteload allocations “which identify the portion of the loading capacity allocated to existing and future point sources,” the EPA observed that “MassDEP has determined there is currently insufficient information and detail available to confidently apportion the total phosphorous loading to individual sources.” It also noted that there was insufficient data “to separate out the parcels that generate storm water that are not subject to NPDES permits.” In its related assessment, the EPA concluded that “it [was] acceptable to group all NPDES eligible storm water discharges into aggregate wasteload allocations” and
Indeed, the gap between the TMDL approvals in this case and a determination that a storm water discharger requires a permit appears even wider when we consider precisely what plaintiffs seek. Plaintiffs ask us to conclude that the EPA must send notice and application forms to specific, “identified” dischargers, even though the TMDLs do not identify who those dischargers are. To varying degrees of specificity, the TMDLs in the record describe the geographic area from which storm water discharges originate and the types of enterprises (e.g., commercial, industrial, residential, etc.) that generate those discharges. 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
At oral argument, plaintiffs offered two reasons why the lack of specificity in the TMDLs is not fatal to their argument. First, section 122.26(a)(9)(i)(D) allows the EPA to determine that a “category of discharges within a geographic area[] contributes to a violation of a water quality standard,” and, plaintiffs argue, the TMDLs at the very least do that. Second, even assuming that the EPA must identify particular dischargers, it can easily do so here based on information already within its possession. All the EPA needs to do, plaintiffs seem to suggest, is take one of the maps provided in the TMDLs and collate it with other data to determine the names and addresses of the landowners and businesses in the watershed.
These arguments do not get the horseshoe close to the stake. Although section 122.26 refers to categories of dischargers, section 124.52 (the provision containing the duty plaintiffs seek to enforce) makes clear that it is triggered by a determination made on a “case-by-case basis.”
proval of the TMDL must be deemed to be such a decision.
Moreover, the duty plaintiffs are asking us to enforce is triggered only when the EPA decides that an individual permit is required.
Practical consequences and past practice in this highly regulated arena also counsel against treating the approval of TMDLs as drive-by permitting determinations by the EPA. As noted, plaintiffs’ argument, functionally, would require the EPA to notify all property owners in a watershed covered by a TMDL that they must secure a permit because of their contribution to polluted storm water. This mandate would seem to extend not only to every storm water-related TMDL that the EPA approves moving forward, but also to all such TMDLs already approved. The EPA estimates that it has approved or established more than 70,000 TMDLs since the passage of the Clean Water Act, many of which involve storm water discharges. Under plaintiffs’ view of the case, in 1990, by enacting the regulations cited in this opinion, the EPA committed itself to notifying a very large number of companies and persons (perhaps as many as tens of millions) as it approved TMDLs covering storm water discharges across the country. Yet the record contains no suggestion whatsoever that either the EPA or the states or the regulated entities—or plaintiffs for that matter—viewed the storm water regulations as having such a far-reaching ramification. Cf. Michigan v. EPA, — U.S. —, 135 S.Ct. 2699, 2708, 192 L.Ed.2d 674 (2015) (weighing the EPA‘s “established administrative practice” in determining the reasonableness of the agency‘s interpretation of the Clean Air Act); Util. Air Regulatory Grp. v. EPA, — U.S. —, 134 S.Ct. 2427, 2448, 189 L.Ed.2d 372 (2014) (emphasizing that “[w]e are not talking about extending EPA jurisdiction over millions of previously unregulated entities“).
The EPA has historically engaged in a practice of issuing residual designations in response to citizen petitions, as it did for Long Creek in Maine. See United States Envtl. Protection Agency, Preliminary Residual Designation Pursuant to Clean Water Act Region I 1, https://www.epa.gov/sites/production/files/2015-11/documents/
Ultimately, we need not conclude that the EPA‘s reading of its own regulations is the best reading. Rather, we follow that reading so long as it is not “plainly erroneous or inconsistent with the regulation[s].” Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989)). And the fact that the EPA‘s reading accords with its longstanding practice is yet another reason to apply such a modicum of deference. See Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597, 614, 133 S.Ct. 1326, 185 L.Ed.2d 447 (2013) (“There is another reason to accord Auer deference to the EPA‘s interpretation: there is no indication that its current view is a change from prior practice or a post hoc justification in response to litigation.“). For the foregoing reasons, we see no good reason to overbear that deference. 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.
III.
For the foregoing reasons, we affirm the dismissal of both cases comprising this consolidated appeal.