EPA Approvals of TMDLs Are Not “Drive-by Permitting Determinations”

Last week, the First Circuit Court of Appeals rejected the Conservation Law Foundation’s argument that EPA’s acceptance of TMDLs in Rhode Island and Massachusetts carried with it a concomitant obligation to require permits of landowners contributing to violations of the TMDLs.  Easy cases make good law.

CLF’s position was simple.  EPA’s approval of the TMDLs meant that EPA had determined that stormwater controls are needed.  This determination, in turn triggered a duty to notify the dischargers contributing to the waste load allocation that they need to apply for a permit.

To which the Court said “Holy non-discretionary duty, Batman!”

As the Court made clear, EPA’s approval of the TMDLs did not identify specific dischargers contributing to the problem.  To the contrary, the TMDLs specifically found that there was no sufficient information to apportion phosphorous loading.  Since the duty CLF sought to impose on EPA is triggered when an individual permit is required, how can such a duty exist when EPA does not know which property owners in fact require individual permits?

EPA also noted that the practical consequences of CLF’s position would be vast:

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.

Finally, EPA noted that Auer deference – the doctrine, like Chevron, that is under siege from conservatives – also supports EPA’s interpretation, since it requires deference to EPA’s interpretation of its own regulations, so long as it is not “plainly erroneous.”

The TMDL provisions of the CWA may be deeply flawed.  It is not, however, the courts’ responsibility to amend them to CLF’s specifications.

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