News & Insights

Eleventh Circuit Rules Alabama’s Npdes Permitting Partnership With Epa Can Continue

The Eleventh Circuit has determined the U.S. Environmental Protection Agency (EPA) does not have to withdraw from a partnership with Alabama that allows the state to issue permits under the Clean Water Act (CWA), even though environmental groups have claimed Alabama’s program has failed to comply with the federal law’s requirements over the years.  Cahaba Riverkeeper et al. v. U.S. Environmental Protection Agency, Case No. 17-11972 (11th Cir.).

The National Pollution Discharge Elimination System (NPDES) program was created by the Federal Clean Water Act in 1972.  The EPA has authority under the CWA to issue NPDES permits for point sources that discharge pollutants into waterways.  Under the CWA, a state may administer NPDES permitting within its borders.  EPA partnered with Alabama in 1979, and the Alabama Department of Environmental Management (ADEM) has issued NPDES permits since its creation in 1982.

In 2010, several environmental groups filed a petition with EPA challenging the partnership, citing numerous alleged violations of the permit program by the state.  In 2014, EPA issued an interim decision dismissing the majority of the grounds, but deferring a decision on the remaining six. 

In 2017, EPA issued its final decision on the 2010 petition, determining the issues raised by the environmental groups did not warrant ending the partnership with Alabama. The environmental groups sought review of the decision by the Eleventh Circuit.

In an issue of first impression, a unanimous panel held the CWA does not require EPA to separate from its partnership, with Alabama even though its permit program has not always complied with the CWA’s requirements.  After reviewing four of the alleged violations by Alabama, the Court concluded none were severe enough to warrant ending the partnership.  The panel also concluded the EPA is not required by statute to commence withdrawal proceedings over any single violation, and that the proper standard is whether EPA’s decision-making is reasonable.

Attorneys for the environmental groups state the decision effectively allows EPA to excuse non-compliance with the minimum federal requirements of NPDES program regulations.  The decision ends years of uncertainty for ADEM, which has continued to administer the NPDES permit program in Alabama during the pendency of the proceedings.