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March 1st, 2018
environmental
EPA APPROVAL OF TMDLs DOES NOT REQUIRE IT TO MAKE PERMITTING DETERMINATIONS

The United States Court of Appeals for the First Circuit has affirmed a lower court’s decision that the Environmental Protection Agency is under no obligation to require permits of landowners contributing to violations of state-developed Total Maximum Daily Loads (“TMDLs”).  Conservation Law Foundation v. EPA, 48 ELR 20013 (1st Cir. 2018).

In this consolidated appeal, Plaintiffs challenged the dismissal of their claims against the EPA. Plaintiffs' suits focused on 40 C.F.R. § 124.52(b), a regulation promulgated under the Clean Water Act. The regulation called for the EPA to send 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 the Court was whether the EPA's role in developing and approving several TMDLs in Massachusetts and Rhode Island constituted a decision that required the EPA to send Section 124.52(b) notices.

The First Circuit rejected Plaintiffs’ argument that the EPA committed itself to notifying a very large number of companies and individuals as it approved TMDLs covering storm water discharges across the county.  In affirming dismissal of Plaintiffs’ claims, the Court noted the EPA’s approval of the TMDLs did not identify specific dischargers contributing to the problem.  Rather, the TMDLs specifically stated there was insufficient information from which to apportion phosphorous loading to individual sources.  Finally, the Court found no suggestion in the record that the EPA, the states or the regulated entities viewed the storm-water regulations as having such far-reaching ramifications.  The decision reinforces the view that the EPA’s interpretation of its own regulations is entitled to significant deference.

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