EPA Wins a Round Against CLF in Residual Designation Authority Litigation

Earlier this week, Judge Mary Lisi, of the District Court of Rhode Island, dismissed the Conservation Law Foundation’s Residual Designation Authority law suit against EPA.  CLF had asked the Court to order EPA to require permits from stormwater dischargers alleged by CLF to be contributing to exceedances of the Total Maximum Daily Load established by Rhode Island for certain impaired water bodies. spectacle-pond

CLF alleged that EPA’s approval of the TMDLs constituted a determination that certain stormwater dischargers were contributing to exceedances of water quality criteria and that the controls on these dischargers are necessary to meet the TMDL and thus attain the water quality criteria.

The Court disagreed, finding that approval of the TMDLs does not by itself constitute a decision by EPA that any stormwater source or sources necessarily have to be regulated.  Seems right to me.  Here’s what the relevant EPA regulations say.  They require an NPDES permit when:

(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.

The Court reviewed the TMDL reports and EPA’s decision and concluded that:

Nothing in the EPA approval document indicates (1) that EPA has conducted its own analysis or fact finding; that (2) that EPA has made an independent determination that the stormwater discharge into Mashapaug Pond contributes to a violation of water quality standards.

I agree, but I think that there’s an even simpler path to the same decision.  If EPA had intended to require a permit any time it approved a TMDL, then the regulations could simply have said that an NPDES permit is required “for any stormwater discharge to a water of the United States for which a TMDL has been established.”  The regulations don’t do that.  Instead, they contemplate a two-step process.  First, the TMDL is established.  Only if the TMDL is established, and only if, after that, EPA determines that “storm water controls” are needed…”, is a permit required.

Because EPA has not made the second-step determination, it has no non-discretionary duty to require permits.

It will be interesting to see what impact this decision has on other RDA litigation around the country.

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