Last week, a federal district court in Rhode Island dismissed a citizen suit that sought to radically expand Clean Water Act stormwater permitting programs. In Conservation Law Found’n v. U.S. Environmental Protection Agency, Civil Action No. 15-165-ML, the plaintiff attempted to invoke a rarely used provision in the Clean Water to mandate that the U.S. EPA regulate stormwater discharges to impaired waterbodies with approved Total Maximum Daily Loads (TMDLs). The court granted the government’s motion to dismiss in what appears to be a case of first impression for the federal courts.
33 U.S.C. Section 1342(p) grants the U.S. EPA authority to regulate stormwater discharges where it has determined that those discharges “contribute to a violation of a water quality standard or is a significant contributor of pollutants to waters of the United States.” Referred to as “Residual Designation Authority,” this provision has been exercised in only two instances (both at the instigation of environmental groups) to address water quality impacts from stormwater discharges.
In this case, Conservation Law Foundation (CLF) sued the U.S. EPA to force the agency to require permits for stormwater discharges to five impaired waterbodies in Rhode Island. Under 33 U.S.C. Section 1313(d), states must develop TMDLs for such impaired waterbodies, which essentially act as pollution budgets to help ensure that the impaired waterbodies achieve state water quality standards. CLF argued that, by approving the TMDLs for the impaired waterbodies, the U.S. EPA had made a “determination” that stormwater discharges to those waterbodies “contribute to a violation of a water quality standard or is a significant contributor of pollutants to waters of the United States.” According to CLF, that determination triggered a non-discretionary duty to exercise the U.S. EPA’s Residual Designation Authority and required permits for stormwater discharges from commercial and industrial facilities to those impaired waterbodies.
The court rejected that claim, based on a close examination of the five TMDLs in question, none of which the court concluded rose to the level of an actual determination that stormwater discharges to those waterbodies were contributing to a violation of a water quality standard or otherwise were a significant contributor of pollutants to waters of the United States. On that basis, the court dismissed CLF’s suit. CLF has not yet appealed, and may not appeal, that decision.
Beyond being a case of first impression for a federal court, this case is significant for two other reasons. First, CLF has filed a similar case in Massachusetts, seeking to compel the U.S. EPA to regulate stormwater discharges to the Charles River based on TMDLs the U.S. EPA previously approved for that watershed. The government has moved to dismiss that case as well and a hearing on that motion is scheduled for January 2017. Last week’s ruling, though tied to the specific TMDLs at issue in Rhode Island, may have some persuasive authority for the Massachusetts federal district court.
Second, there are thousands of approved TMDLs around the United States, and an even larger backlog of impaired waterbodies that require TMDLs which have not yet been approved. If taken literally, CLF’s claims would mandate that the U.S. EPA (or the delegated state permitting agency) establish stormwater permitting programs for each TMDL for which stormwater is determined to “contribute to a violation of a water quality standard or is a significant contributor of pollutants to waters of the United States.” CLF and other environmental groups have repeatedly petitioned the U.S. EPA to exercise its Residual Designation Authority, which the U.S. EPA has declined to do. The Rhode Island and Massachusetts cases reveal that those environmental groups are now turning to the federal courts to force the regulatory outcome they have been seeking. In the first court ruling to address it, that strategy has been rejected.