A federal court in Rhode Island recently held for the EPA on the scope of its non-discretionary duties regarding stormwater discharges.  The case arises out of the EPA’s failure to (i) notify certain commercial and industrial polluters that they must obtain stormwater discharge permits and install operational controls, and (ii) provide them with applications for permit coverage.  The Conservation Law Foundation (“CLF”) claimed that because the EPA had already determined that the polluters were contributing to the impairment of a number of Rhode Island water bodies, the agency’s duty to enforce its permit program was non-discretionary.  The CLF specifically contended that the EPA’s approval of the Rhode Island Department of Environmental Management’s (“RIDEM”) Total Maximum Daily Load (“TMDL”) reports constituted a determination that commercial and industrial polluters contributed to the violation of water quality standards, and as a result, that stormwater controls were required for the discharges from such facilities.  The EPA claimed that simply because it approved the TMDLs at issue, it did not assume any legal requirement to notify discharges of their permit requirements or send them permit applications.  That requirement only would come about if a competent regulatory authority determined that “the stormwater discharge contributes to a violation of a water quality standard or is a significant contributor of pollutants to water of the United States.”

In her December 13 decision, Judge Mary Lisi agreed with the agency, noting that CLF could not “close the gap between RIDEM’s assessments of the impaired water bodies  and the EPA’s alleged duty to notify stormwater dischargers of NPDES permit requirements or to provide them with permit applications.”   The EPA’s decision not to require permitting for stormwater discharges does not constitute a failure to perform a non-discretionary duty under the CWA.

The case is Conservation Law Foundation v. McCarthy et al. (C.A. No. 15-165-ML) (D.R.I. Dec. 13, 2013) and the order can be accessed here.