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Conservation Law Foundation v. Environmental Protection Agency

ELR Citation: 47 ELR 20195
Nos. 15-165-ML, (D. R.I. , 12/13/2016) (Lisi, J)

A district court held that EPA did not fail to carry out non-discretionary duties under the CWA when it failed to notify certain industrial and commercial dischargers that they are required to obtain discharge permits under the Rhode Island Pollution Discharge Elimination System and to provide them with applications for permit coverage. An environmental group filed suit contending that EPA’s approval of TMDLs for certain Rhode Island water bodies constitutes a determination that the dischargers are contributing to water quality violations and require stormwater controls, thereby triggering the Agency’s non-discretionary duties under the CWA. But the court held that because EPA’s approval of the TMDLs contained no independent determinations by the Agency that the stormwater discharges contribute to water quality violations or that they constitute significant contributors of pollutants to those waters, EPA could not be said to have made an affirmative determination. EPA’s election not to require permitting for stormwater discharges therefore does not constitute a failure to perform a non-discretionary duty under the CWA.