First Circuit Concludes That EPA Did Not Fail To Perform Nondiscretionary Duties In Connection With TMDLs

On January 24, the U.S. Court of Appeals for the First Circuit decided the case of Conservation Law Foundation, Inc., v. Pruitt. The Pruitt case involves a consolidated appeal from the decisions of the U.S. District Courts in Massachusetts and Rhode Island dismissing the Clean Water Act (CWA) Citizen Suits filed against the Environmental Protection Agency (EPA) and its administrator, Scott Pruitt. These cases involve EPA’s approval of total maximum daily loads (TMDLs) which establish the maximum amount of a particular pollutant that can be released by storm water discharges into a designated body of water located in Massachusetts and Rhode Island.

Plaintiffs claimed that EPA’s failure to send a written notice to a discharger of storm water, as determined in the total maximum daily loads (TMDLs) process, that an individual storm water discharge permit was required, was a violation of a non-discretionary duty placed on the Administrator by the CWA. EPA’s TMDL program followed the 1987 storm water amendments to the CWA. While the states are primarily responsible for creating TMDLs, EPA has an important role to play in confirming that the TMDL at issue meets the requirements of Section 303(d) of the CWA.

As the Court of Appeals points out, EPA’s findings do not identify a specific dischargers who is required to obtain an individual National Pollutant Discharge Elimination System (NPDES) permit. As the Court of Appeals notes, “Simply put, there is nothing in the TMDLs themselves … that even suggest an undertaking to make individualized determinations.” Accordingly, the Court of Appeals concluded that, as these complaints allege no failure by EPA to perform a nondiscretionary duties, they must be dismissed.