Promulgation of TMDLs Does Not Create a Non-Discretionary Duty to Require NPDES Permits

When EPA approved total maximum daily loads for the Charles River, but failed to require NPDES permits for persons discharging stormwater to the Charles, CLF sued.  CLF alleged that EPA violated a non-discretionary duty when it failed to require the permits.  Last Friday, Judge Richard Stearns dismissed CLF’s suit.

EPA’s regulations provide that it will issue NPDES permits where it:

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.

CLF argued the nature of the TMDL process means that, in approving the TMDLs, EPA necessarily made a determination that certain stormwater discharges were contributing to violations of water quality standards and thus that permits were required.  EPA took the position that its regulations require a separate and explicit determination that any particular source or category of sources requires a permit.

The Court rightly sided with EPA.  As the court noted, the regulations provide that an RDA determination may be:

based on wasteload allocations that are part of ‘total maximum daily loads’ (TMDLs) that address the pollutant(s) of concern.” This language clearly implies that the RDA will be exercised separately from the TMDL process; it would be an oddity, if not an outright oxymoron, to say that a determination is “based on” a TMDL’s wasteload allocations if the TMDL itself constitutes the determination.

In other words, to say that the RDA determination should be “based on” the TMDL by definition means that it is a decision separate and apart from the issuance of the TMDL itself.

This was more than enough for the Court, since EPA’s interpretation of its own regulations is entitled to deference under Auer v. Robbins.  Since the word “determines” is used in the CWA itself, the Court noted that Chevron deference also supports EPA’s position.

In short, this case, while important in its own right, also qualifies as Chapter 4 in the conservative case for Chevron deference and Chapter 2 in the conservative case for Auer deference.

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