United States Court of Appeals
For the First Circuit
No. 17-1166
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.
No. 17-1354
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]
Before
Torruella, Lipez, and Kayatta,
Circuit Judges.
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.
January 24, 2018
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:
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(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
1
Congress's initial grant of residual designation authority
applied during the implementation period of the storm water
permitting rules. During that period, storm water permits were
generally not required unless an exception applied; one such
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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. § 122.26(a)(9)(i)(C)–(D). Additional regulations
implementing the permitting requirements provide:
(a) Various sections of part 122, subpart B
allow the Director to determine, on a case-
by-case basis, that certain . . . storm water
exception was the exercise of residual designation authority. 33
U.S.C. § 1342(p)(2)(E). Pursuant to a statutory directive, the
EPA subsequently promulgated implementing regulations that
preserved the agency's residual designation authority. 40 C.F.R.
§ 122.26(a)(9)(i)(C)–(D); see also NPDES -- Regulations for
Revision of the Water Pollution Control Program Addressing Storm
Water Discharges, 64 Fed. Reg. 68,722, 68,781 (Dec. 8, 1999) ("The
NPDES permitting authority's existing designation authority . . .
[is] being retained."). These regulations are the basis for
plaintiffs' suits.
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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.
40 C.F.R. § 124.52(a)–(b).
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. 33 U.S.C. §§ 1313(a), 1313(d)(1)(A)–
(B). In order to bring impaired waters into compliance, states
are further directed to develop "total maximum daily loads," which
represent the maximum amount of a particular pollutant that can be
released into a waterway while still maintaining water quality
standards. 33 U.S.C. § 1313(d)(1)(C). TMDLs are further
subdivided into wasteload allocations and load allocations. 40
C.F.R. § 130.2(i). A wasteload allocation is "[t]he portion of a
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receiving water's loading capacity that is allocated to one of its
existing or future point sources of pollution." 40 C.F.R.
§ 130.2(h). A load allocation is "[t]he portion of a receiving
water's loading capacity that is attributed either to one of its
existing or future nonpoint sources of pollution or to natural
background sources." 40 C.F.R. § 130.2(g). The sum of all
wasteload allocations and load allocations for a particular water
make up the TMDL, see 40 C.F.R. § 130.2(i), which when completed
is submitted to the EPA for approval. See 33 U.S.C. § 1313(d)(2).
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.
33 U.S.C. § 1365(a).
As set forth more fully below, plaintiffs' suits attempt
to pull together these three components of the Clean Water Act --
the EPA's residual designation authority for storm water
permitting, the development and approval of TMDLs, and the citizen-
suit provision -- to force the EPA to require certain third-party
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storm water dischargers in Rhode Island and Massachusetts to secure
NPDES permits.
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
2
Plaintiffs' complaint in the district of Massachusetts also
requested the same notice for high-density residential
dischargers. Plaintiffs have maintained on appeal that the EPA's
duty extends to high-density residential sources, but presumably
only within the Charles River watershed, since there was no mention
of these dischargers in the Rhode Island case.
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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." 33
U.S.C. § 1365(a)(2). The courts thus found that the suits had no
toehold in the Act's limited authorization of citizen suits against
the EPA, which is otherwise immune as an agency of the sovereign.
They therefore dismissed the cases for want of jurisdiction. See
Conservation Law Found., Inc. v. EPA, 223 F. Supp. 3d 124, 129–34
(D. Mass. 2017); Conservation Law Found. v. EPA, No. 15-165-ML,
2016 WL 7217628, at *9 (D.R.I. Dec. 13, 2016). Plaintiffs appealed
and their suits were consolidated for review in this court.
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. 33
U.S.C. § 1365(a)(2). Because section 1365(a)(2) is a waiver of
sovereign immunity, see U.S. Dep't of Energy v. Ohio, 503 U.S.
607, 615 (1992), it is to be "construed strictly" in favor of the
EPA, id. at 615 (quoting McMahon v. United States, 342 U.S. 25, 27
(1951)); see also Massachusetts v. U.S. Veterans Admin., 541 F.2d
119, 123 (1st Cir. 1976). Our standard of review, in turn, is de
novo. See Esso Standard Oil Co. (Puerto Rico) v. Rodríguez-Pérez,
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455 F.3d 1, 4 (1st Cir. 2006); Paul Revere Life Ins. Co. v.
Bromberg, 382 F.3d 33, 34 (1st Cir. 2004).
Plaintiffs' position can be summarized in three steps.
According to plaintiffs, the EPA -- in helping to develop and in
approving the TMDLs at issue -- made a determination that "storm
water controls are needed" for discharges identified in the TMDLs,
see 40 C.F.R. § 122.26(a)(9)(i)(C), and/or that "the [storm water]
discharge[] or category of discharges" identified in the TMDLs
"contributes to a violation of a water quality standard," see 40
C.F.R. § 122.26(a)(9)(i)(D). This determination, say plaintiffs,
triggered a duty by the EPA to "notify the discharger in writing"
of its decision that the discharger is required to obtain a permit
and to "send an application form with the notice." 40 C.F.R.
§ 124.52(b). Finally, plaintiffs contend that the EPA's duty to
notify storm water dischargers is nondiscretionary and therefore
is properly the subject of a Clean Water Act citizen suit.
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 40 C.F.R. § 124.52(b).3 Because we find this last
3 The EPA focuses primarily in its briefing, as it did in oral
argument, on 33 U.S.C. § 1342(p), the statutory provision
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argument to be persuasive, we need not consider the EPA's other
arguments.
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 33 U.S.C.
§§ 1313(d)(2), (e)(1). Plaintiffs fairly claim that the EPA
sometimes gets involved in the TMDL development process (prior to
the approval stage) and, indeed, that the EPA did so here with
respect to some of the TMDLs at issue. But plaintiffs offer no
reasoned basis for concluding that any such involvement expands
the scope of the express determination the EPA makes in approving
a TMDL. And that express determination is limited to confirming
that the TMDLs "meet the requirements of § 303(d) of the Clean
Water Act (CWA), and of EPA's implementing regulations."
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
governing residual designation authority. However, plaintiffs'
claims rely on the applicable regulations, which the EPA also
addresses, albeit briefly. We therefore focus on the regulations.
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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 that "it [was] also
acceptable to include both discharges subject to NPDES as well as
nonpoint source runoff in th[e] aggregate wasteload category."
Certainly this language -- which sanctions not only the aggregation
of all storm water point sources within the wasteload allocation
but also their inclusion along with sources that are entirely
unregulated under the Act -- falls short of qualifying as a
determination that any particular discharges must be permitted,
either because storm water controls are needed for the discharges,
see 40 C.F.R. § 122.26(a)(9)(i)(C), or because they contribute to
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a violation of water quality standards, see 40 C.F.R.
§ 122.26(a)(9)(i)(D).
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 124.52(b) to every
landowner and business in the area covered by each TMDL.4
4
Plaintiffs formally limit their request to industrial,
commercial, and certain residential dischargers. But, as
plaintiffs' counsel conceded at oral argument, the logic of their
argument extends to every property owner in a given watershed.
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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." 40 C.F.R.
§ 124.52(a). Simply put, there is nothing in the TMDLs themselves
-- and hence nothing in the EPA's approval of the TMDLs -- that
even suggests an undertaking to make individualized
determinations. Rather, the TMDLs address discharges at the
abstract level of source type. A TMDL could certainly provide
information that would make a decision to require individual
permits quite easy; this appears to be what is contemplated by the
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statement in section 122.26 that a determination that storm water
controls are needed can be "based on" wasteload allocations in
TMDLs. See 40 C.F.R. § 122.26(a)(9)(i)(C). But that is simply
not the same as saying that the approval 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. 40 C.F.R. § 124.52(b). Even if the TMDLs (and their
approvals) did constitute a determination that storm water
controls are needed or that storm water discharges are contributing
to a water quality standard violation, thus satisfying section
122.26, all that determination requires is that the
"operator[] . . . obtain a NPDES permit." 40 C.F.R.
§ 122.26(a)(9)(i).5 This could take the form of either a general
permit (covering multiple dischargers), see 40 C.F.R. § 122.28(a),
or an individual permit -- but only the latter would trigger
section 124.52. See 40 C.F.R. § 124.52(b) (requiring notice
"[w]henever the Regional Administrator decides that an individual
permit is required") (emphasis added). Plaintiffs contend that
because the EPA has not adopted general permits for the discharges
at issue in this case, "the only means for the sources of these
discharges to obtain a permit is to apply for individual permits."
5 At no point have plaintiffs identified the supposed
"operators."
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But plaintiffs do not explain why the EPA could not choose, even
at this stage, to require general permits, as they have for various
municipal storm sewer systems in Rhode Island and Massachusetts.
This alone is fatal to plaintiffs' position because if the EPA
could require a general permit as opposed to an individual one,
then one cannot conclude that it has a nondiscretionary duty to
inform dischargers that they must secure the latter.
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
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regulated entities -- or plaintiffs for that matter -- viewed the
storm water regulations as having such a far-reaching
ramification. Cf. Michigan v. EPA, 135 S. Ct. 2699, 2708 (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, 134 S. Ct.
2427, 2448 (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/longcreekrd.pdf; see also 40 C.F.R. § 122.26(f) ("Any
person may petition the Director to require a NPDES permit for a
discharge which is composed entirely of storm water which
contributes to a violation of a water quality standard or is a
significant contributor of pollutants to waters of the United
States."). These designations are formal documents containing
independent analyses by the EPA and, unlike the TMDL approval
documents, identify with particularity the dischargers or
categories thereof that are required to secure permits. See United
States Envtl. Protection Agency, Preliminary Residual Designation
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Pursuant to Clean Water Act Region I 1,
https://www.epa.gov/sites/production/files/2015-
11/documents/longcreekrd.pdf. This practice aligns with EPA's
position here that section 122.26 requires a "separate, express
determination" by the agency. Plaintiffs have provided no reason
why they could not, pursuant to regulation, petition the EPA for
such a designation. Instead, they ask us to find that in approving
state-developed TMDLs, the EPA has implicitly done what it normally
does through an entirely different process. It has been said that
Congress does not hide elephants in mouseholes. See Whitman v.
American Trucking Ass'ns, 531 U.S. 457, 468 (2001). Here, we think
it even less likely that the EPA hid a herd of elephants in a
mousehole, much less a herd that remained unnoticed for several
decades.
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 (1997) (quoting Robertson v. Methow Valley Citizens
Council, 490 U.S. 332, 359 (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 (2013) ("There is another
reason to accord Auer deference to the EPA's interpretation: there
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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.
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