Conservation Law Found., Inc. v. Pruitt

881 F.3d 24

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.

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.

No. 17-1166

No. 17-1354

United States Court of Appeals, First Circuit.

January 24, 2018

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.

Before Torruella, Lipez, and Kayatta, Circuit Judges.

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: (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 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 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 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 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 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, 112 S.Ct. 1627, 118 L.Ed.2d 255 (1992), it is to be "construed strictly"...