EPA Approvals Of TMDLs Are Not "Drive-By Permitting Determinations"

Last week, the First Circuit Court of Appeals rejected the Conservation Law Foundation's argument that EPA's acceptance of TMDLs in Rhode Island and Massachusetts carried with it a concomitant obligation to require permits of landowners contributing to violations of the TMDLs. Easy cases make good law.

CLF's position was simple. EPA's approval of the TMDLs meant that EPA had determined that stormwater controls are needed. This determination, in turn triggered a duty to notify the dischargers contributing to the waste load allocation that they need to apply for a permit.

To which the Court said "Holy non-discretionary duty, Batman!"

As the Court made clear, EPA's approval of the TMDLs did not identify specific dischargers contributing to the problem. To the contrary, the TMDLs specifically found that there was no sufficient information to apportion phosphorous loading. Since the duty CLF sought to impose on EPA is triggered when an individual permit is required,