Conservation Law Foundation, Inc. et al v. United States Environmental Protection Agency

Filing 52

Judge Richard G. Stearns: ORDER entered denying 46 Motion to Amend; granting 22 Motion to Dismiss for Lack of Jurisdiction. (RGS, law1)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 16-10397-RGS
CONSERVATION LAW FOUNDATION, INC. &
CHARLES RIVER WATERSHED ASSOCIATION, INC.
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY ET AL.
MEMORANDUM AND ORDER ON
DEFENDANTS’ MOTION TO DISMISS
March 24, 2017
STEARNS, D.J.
This case tests the limits of a federal court to require an agency of the
executive branch to do something that it is has decided not to do, no matter
how compelling might be the circumstances. Plaintiffs Conservation Law
Foundation, Inc., and Charles River Watershed Association, Inc., brought
this citizen suit under the Clean Water Act (CWA) against the Environmental
Protection Agency (EPA), the EPA’s Region 1 Office, Gina McCarthy (EPA’s
Administrator at the time the lawsuit was filed), and H. Curtis Spalding (the
Regional Administrator of the EPA’s Region 1 Office), contending that the
EPA1 has abdicated a nondiscretionary duty to require stormwater

For the sake of simplicity, defendants will be referred to collectively
as “the EPA” throughout this opinion.
1

dischargers along the Charles River to apply for pollution discharge permits.
The EPA now moves to dismiss the Complaint for lack of subject matter
jurisdiction and failure to state a claim. Fed. R. Civ. P. 12(b)(1), (6). After a
hearing on the motion to dismiss, plaintiffs moved to amend the Complaint,
seeking to add a claim that the EPA has failed to respond to a petition that
plaintiffs filed in 2013 seeking designation of a number of stormwater point
sources. The EPA opposes the motion, chiefly contending that amendment
would be futile.
BACKGROUND
The relevant facts are largely undisputed, but the parties vigorously
disagree over their fit in the overarching regulatory framework. Under the
CWA, each state is required to set water quality standards for bodies of water
within its boundaries. 33 U.S.C. § 1313(c). Once these standards are defined,
the state determines which water bodies do not meet the quality standards
for each of a list of pollutants. Id. § 1313(d)(1)(A). If a pollutant exceeds the
acceptable level, the state must then establish the “total maximum daily
load” (TMDL) of the pollutant that the water body can absorb and still meet
water quality standards. Id. § 1313(d)(1)(C).
TMDLs allocate the daily load between point sources (such as a pipe or
ditch, id. § 1362(14)) and all other sources, creatively referred to as nonpoint
2

sources. A TMDL is the sum of acceptable “wasteload allocations” from point
sources and “load allocations” from nonpoint sources. 40 C.F.R. § 130.2(g)(i). Once a TMDL is designed, it is submitted to the EPA for approval. 33
U.S.C. § 1313(d)(2).
A separate section of the CWA establishes a permitting system for the
discharge of pollutants from point sources. 33 U.S.C. §§ 1311(a), 1342(a).
Under the National Pollutant Discharge Elimination System (NPDES),
dischargers must obtain a permit that, among other restrictions, limits the
quantity and type of pollutants that can be discharged into a protected body
of water. 40 C.F.R. § 122.1(b). These limits must be “consistent with the
assumptions and requirements of any available wasteload allocation for the
discharge” set by the relevant TMDL. Id. § 122.44(d)(1)(vii)(B).
Point sources of stormwater discharges, however, are not treated like
the mine-run of point sources. Instead, they are subject to special permitting
rules established by a 1987 amendment to the CWA.

Under the 1987

amendment, only certain types of stormwater discharge require a permit,
most notably those associated with industrial activity and municipal sewer
systems. 33 U.S.C. § 1342(p)(2). The amendment also gave the EPA the
authority to identify and regulate other sources of stormwater discharge. Id.
§ 1342(p)(6).

Exercising this authority, the EPA added two types of
3

stormwater discharges to the NPDES permitting system, 40 C.F.R. §
122.26(a)(9)(i)(A), (B), and instituted an ad hoc procedure for permitting
where: (1) the EPA2 “determines that storm water controls are needed for the
discharge based on wasteload allocations that are part of ‘total maximum
daily loads’ (TMDLs) that address the pollutant(s) of concern”; or (2) where
the EPA “determines that the discharge, or category of discharges within a
geographic area, contributes to a violation of a water quality standard or is a
significant contributor of pollutants to waters of the United States.” Id. §
122.26(a)(9)(i)(C), (D).

These provisions make up the EPA’s “residual

designation authority” (RDA).
Plaintiffs contend that under the RDA, the EPA is required to take
urgent action to address stormwater discharges into the Charles River.
Plaintiffs point to three Charles River TMDLs approved by the EPA in recent
years. The first two TMDLs address “nutrient” pollution in the Charles.
These TMDLs divide the Charles into two stretches: the Upper/Middle
Charles (flowing from Hopkinton to the Watertown Dam), and the Lower
Charles (flowing from the Watertown Dam to the New Charles River Dam).

Under the CWA, states can create their own NPDES permitting
authority under the auspices of the EPA and take responsibility for
determining when permits are needed for stormwater discharges. See 33
U.S.C. § 1342(b). Massachusetts to this point has opted not to create its own
permitting process.
4
2

In both stretches, nutrient pollution (primarily from phosphorus) has
fostered “cultural” or “accelerated eutrophication,” a process by which a body
of water produces overabundant plant life, including toxic algae, thereby
degrading water quality and deterring recreational use. Defs.’ Ex. 1, Dkt.
#22-2, at 5-6, 19-20; Defs.’ Ex. 2, Dkt. # 22-3, at 2, 13-14. Both TMDLs
identify stormwater as a major source of nutrient discharge into the Charles.
Defs.’ Ex. 1 at 43; Defs.’ Ex. 2 at 46-51.
The third TMDL addresses pathogen pollution, including bacteria such
as fecal coliform and E. coli. Pathogens endanger the health of persons who
drink or are otherwise exposed to the polluted water. Defs.’ Ex. 3, Dkt. #224, at 3. The TMDL identifies stormwater as a major source of pathogens,
primarily because it washes animal waste and other pathogen hosts into the
Charles. Id. at 39.
All three TMDLs and the recitations in plaintiffs’ Complaint identify
significant threats to the vitality of the Charles — the amelioration of which
will require severe reductions in the levels of nutrient and pathogen pollution
contributed to the River by stormwater. Nutrient pollution has caused toxic
algal blooms in the Charles, leading state and local authorities to warn
citizens and their pets to avoid any contact with River water. Am. Compl. ¶¶
48, 81. Plaintiffs also note that high levels of pathogen pollution have forced
5

the cancellation of public swimming events. Am. Compl. ¶ 52. The Lower
Charles nutrient TMDL implementation plan will require “Commercial,”
“Industrial,” and “High Density Residential” land users to reduce
phosphorous loading by 65% from 1998-2002 levels, while cities and towns
along the Charles will be required to achieve reductions in excess of 60% of
1998-2002 levels. Defs.’ Ex. 1 at 106-112. The implementation plan for the
Upper/Middle Charles nutrient TMDL also calls for severe reductions in
nutrient contributions by “Commercial/Industrial/Transportation” and
“High Density/Medium Density/Multi-Family Residential” land users on
“the same [scale] as those called for in the Lower Charles Nutrient TMDL.”
Defs.’ Ex. 2 at 84. The pathogen TMDL, for its part, envisions reductions of
41.2%-98.8% in bacteria loading and reductions of 97.1%-97.6% in fecal
coliform loading for comparable land use categories. Defs.’ Ex. 3 at 40.
Plaintiffs filed this lawsuit on February 25, 2016, and amended the
Complaint on June 20, 2016. The court heard oral argument on the EPA’s
motion to dismiss on February 3, 2017. At the conclusion of the argument,
the court invited additional comments concerning the relationship between
this suit and the citizen petition provision of the EPA’s regulations
implementing the RDA.

See 40 C.F.R. § 122.26(f)(2).

Both parties

responded, and plaintiffs, together with their response, sought leave to add
6

an additional count to the Complaint. That count would assert that the EPA
has failed to fulfill the nondiscretionary duty imposed under the RDA to
make a final determination on citizen petitions for point source designations
within 90 days of receipt. See id. § 122.26(f)(5). Specifically, plaintiffs
contend that the EPA has yet to issue a final determination on a petition filed
on July 10, 2013, requesting the EPA to require permits for commercial,
industrial, and institutional stormwater discharges at some 1,711 locations in
New England.
DISCUSSION
Relying on the citizen suit provision of the CWA, 33 U.S.C. § 1365,
plaintiffs allege that the EPA has failed under 40 C.F.R. § 124.52 to distribute
NPDES permit applications to various commercial, industrial, institutional,
and high-density residential stormwater point sources along the Charles (the
EPA does not contest the fact that it has not done so). The essence of
plaintiffs’ argument is that the EPA, in approving the Charles River TMDLs,
made an implicit determination under its RDA that stormwater dischargers
along the River must obtain NPDES permits.
As a general proposition, sovereign immunity bars suits against federal
agencies and their officials. Commonwealth of Puerto Rico v. United States,
490 F.3d 50, 57 (1st Cir. 2007). Congress may waive that immunity, and it
7

has done so under the CWA to the extent that citizens are authorized to bring
suits to compel the EPA Administrator to carry out “any act or duty . . . which
is not discretionary.” 33 U.S.C. § 1365(a)(2). Stated in the obverse, “[a]
clearly mandated, nondiscretionary duty imposed on the Administrator is a
prerequisite for federal jurisdiction under the CWA citizen suit provision.”
Miccosukee Tribe of Indians of Fl. v. U.S. E.P.A., 105 F.3d 599, 602 (11th Cir.
1997); accord Sierra Club v. Whitman, 268 F.3d 898, 901 (9th Cir. 2001).
The jurisdictional question in this case turns on the contextual
meaning of the word “determines” as it appears in the RDA. 40 C.F.R. §
122.26(a)(9)(i)(C), (D). Plaintiffs maintain that the EPA, by approving the
TMDLs at issue, made the necessary determinations. Plaintiffs emphasize
that the process of approving a TMDL necessarily involves reviewing and
approving the underlying load and wasteload allocations for nonpoint and
point sources, respectively. All three TMDLs include stormwater flows (in
whole or in part) in their wasteload allocations, implying that at least some
stormwater comes from point sources. Defs.’ Ex. 1 at 88; Defs.’ Ex. 2 at 7475; Defs.’ Ex. 3 at 58. Moreover, plaintiffs point to the findings in the TMDLs
or their implementation plans regarding phosphorous and pathogen loading
contributed by stormwater runoff from various land uses and the setting of
concrete goals for the containment and reduction of these contributions.
8

Defs.’ Ex. 1 at 99-104; Defs.’ Ex. 2 at 75; Defs.’ Ex. 3 at 39-40. Thus, the
argument goes, the TMDLs, with their underlying wasteload allocations and
targeted reductions in contaminants, amount to a determination that
unpermitted stormwater discharges are contributing to violations of water
quality standards.3 It follows, plaintiffs assert, that the EPA must carry out
its duty to “notify the discharger in writing” of its determination and “send
[a permit] application form with the notice.” 40 C.F.R. § 124.52(b).
Under plaintiffs’ theory, a nondiscretionary duty logically attaches if
the TMDLs constitute determinations under the RDA. The EPA sees this
argument as the weak link in plaintiffs’ logical chain. Although the EPA
acknowledges that the TMDL process results in the identification of sources
of pollution of bodies of water, and even further, that a TMDL could provide

Plaintiffs rest their argument on both subsections (C) and (D) of the
RDA. The precise relationship between these provisions is unclear.
Subsection (C) describes determinations “based on wasteload allocations
that are part of ‘total maximum daily loads’ (TMDLs) that address the
pollutant(s) of concern,” while subsection (D) refers generally to
determinations that a discharge “contributes to a violation of a water quality
standard or is a significant contributor of pollutants to waters of the United
States.” 40 C.F.R. § 122.26(a)(9)(i)(C), (D). At oral argument, the EPA
stated that reading (D) to apply only to waters without an approved TMDL
would be reasonable, though it did not advance that reading as an
authoritative interpretation. Plaintiffs contended that the two provisions are
overlapping in their application to waters (like the Charles) for which
approved TMDLs are in place. As this case ultimately turns on the meaning
of “determines,” which appears in both parts of the RDA, the court need not
conclusively determine the interplay of subsections (C) and (D).
9
3

a basis on which the EPA could exercise its RDA, that exercise, in the EPA’s
view, requires an “express determination” resulting from an “affirmative
exercise[]” of the RDA that is independent of the TMDL process. Defs.’ Mem.
at 14; see Reply at 2-3.
Here is the crux of the matter. While an agency cannot take a position
which contradicts the plain text of a regulation, see United States v. Coal. for
Buzzards Bay, 644 F.3d 26, 33 (1st Cir. 2011), an agency’s interpretation of
its own regulations is generally “controlling unless ‘plainly erroneous or
inconsistent with the regulation,’” Auer v. Robbins, 519 U.S. 452, 461 (1997),
quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359
(1989). This is true even if the agency interpretation appears for the first
time in a legal brief. Chase Bank USA, N.A. v. McCoy, 562 U.S. 195, 208209 (2011).4
Plaintiffs contend that the EPA’s interpretation of the exercise of RDA
contradicts the regulation itself and the underlying statutory authority upon
which it draws. Specifically, plaintiffs maintain that “determines” means

The court is not required, however, to defer to agency interpretations
that conflict with a prior authoritative interpretation, advocate a position
only to gain advantage in a particular litigation, or represent a transparent
attempt to rationalize some previous agency action. Christopher v.
SmithKline Beecham Corp., 132 S. Ct. 2156, 2166-2167 (2012).
4

10

that NPDES permits for stormwater are required “whenever EPA
substantively determines that the permit triggers are met, regardless of the
process leading to that conclusion.” Opp’n at 9. In support of this argument,
plaintiffs place particular emphasis on the fact that the regulations and the
CWA use the word “determines,” rather than the phrase, “makes a
determination” (which plaintiffs agree would imply the existence of an
independent process for exercising the RDA). But given the actual word
used, they argue that the EPA has no “discretion to impose additional ad hoc
procedural hurdles or distinctions” to the exercise. Id.
Nothing in the plain text of the CWA or regulations, however, precludes
the EPA’s reading. As plaintiffs concede, neither source explicitly speaks to
how the RDA is to be exercised. Id. Nor is their reading of “determines” so
plainly obvious when the regulation is read, as it must be, as a whole.
Although in an appropriate context, meaning might be ascribed to the EPA’s
choice of “determines” rather than “makes a determination,” any interpretive
weight given to that choice is outweighed by the sole reference to the TMDL
procedure in the RDA. 40 C.F.R. § 122.26(a)(9)(i)(C) provides that an RDA
determination may be “based on wasteload allocations that are part of ‘total
maximum daily loads’ (TMDLs) that address the pollutant(s) of concern.”
This language clearly implies that the RDA will be exercised separately from
11

the TMDL process; it would be an oddity, if not an outright oxymoron, to say
that a determination is “based on” a TMDL’s wasteload allocations if the
TMDL itself constitutes the determination. At best, plaintiffs’ argument
demonstrates that the meaning of “determines” is ambiguous, which renders
the EPA’s interpretation of the term, which is not outlandish or
unreasonable, the tiebreaker for the court.

See Visiting Nurse Ass’n

Gregoria Auffant, Inc. v. Thompson, 447 F.3d 68, 72-73 (1st Cir. 2006).
In addition to the textual cues, the EPA’s reading comports with other
aspects of the statutory treatment of wastewater discharges and the TMDL
process. Unlike most discharges, which are subject to a default rule requiring
NPDES permits, see 33 U.S.C. §§ 1311(a), 1342(a), the CWA itself requires
permits only for certain statutorily designated stormwater sources, id. §
1342(p)(1)-(2). The statute also tasks the EPA with identifying additional
stormwater discharges and establishing “a comprehensive program to
regulate such designated sources.” Id. § 1342(p)(6). The EPA subsequently
designated two such sources, and also created the RDA to retain the
flexibility to require permits on an ad hoc basis. 40 C.F.R. § 122.26(a)(9)(i).
Viewing the statutorily mandated creation of a TMDL as constituting a
determination under the RDA would collapse the distinction between the
largely discretionary stormwater permitting system envisioned by Congress
12

and the default rule requiring permits from other discharges. Cf. Decker v.
Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 1338 (2013) (the CWA gives the EPA
“broad discretion . . . in the realm of stormwater runoff”).
This conclusion is strengthened by the fact that courts have regularly
held that TMDLs, standing alone, do not create legally enforceable
obligations (albeit in addressing different questions under the CWA). See
Am. Farm Bureau Fed’n v. U.S. E.P.A., 792 F.3d 281, 291 & n.4 (3d Cir. 2015)
(collecting cases), cert. denied, 136 S. Ct. 1246 (2016). This approach makes
sense because under the CWA and its implementing regulations, a TMDL
sets the total load of a given pollutant that a waterbody can sustain and then
divides that amount between point and nonpoint sources. 33 U.S.C. §
1313(d)(1)(C); 40 C.F.R. § 130.7(a), (c)(1). These conclusions inform the
state’s water quality management plan, which in turn is “used to direct
implementation” of the steps needed to bring degraded waterbodies into
compliance. 40 C.F.R. § 130.6(b); see id. § 130.7(d)(2). Thus, although the
purpose of a TMDL is to evaluate sources of water pollution, there is nothing
leading inexorably to the conclusion that the analysis underlying a TMDL is
itself a determination under the RDA.5

The parties have treated this case as implicating Auer deference,
although plaintiffs observe that “determines” appears in the CWA as well.
See 33 U.S.C. § 1342(p)(2)(E). To the extent that plaintiffs suggest that the
13
5

Finally, the logic of the EPA’s interpretation is reinforced by the
TMDLs at issue in this case. These evince no intention to exercise the RDA.
Although the TMDLs note that stormwater runoff leads to pollution in the
Charles River, they do not state that NPDES permits for stormwater
discharges are necessary in order to meet water quality targets, nor do they
identify a particular category or list of point sources for which permits are
required. See Conservation Law Found. v. U.S. EPA, 2016 WL 7217628, at
*8-9 (D.R.I. Dec. 13, 2016) (holding that TMDLs in a substantively similar
suit by one of the instant plaintiffs did not constitute determinations or an
exercise of the EPA’s RDA).

All three TMDLs are accompanied by

implementation plans that do nothing more than acknowledge the EPA’s
RDA. Defs.’ Ex. 1 at 113 (“Some stormwater point sources . . . may have to be
addressed through other regulatory vehicles available to EPA . . . including,
b[u]t not limited to EPA’s exercise of its residual designation authority to
require NPDES permits . . . .”); accord Defs.’ Ex. 3 at 69; see Defs.’ Ex. 2 at
96 (“EPA has the authority to require non-regulated point source storm
water discharges to obtain NPDES permits if it determines that such storm
water discharge causes or contributes to a water quality violation, or is a

word “determines” in the CWA is unambiguous at step one of the Chevron
analysis, that argument fails in view of the statutory context.
14

significant contributor of pollutants, or where controls are needed based on
a waste load allocation . . . .” (emphasis added)); Defs.’ Ex. 3 at 74 (same).6
Plaintiffs muster two additional arguments against the EPA’s brief.
First, they argue that the EPA has no consistent practice for invoking its RDA
and therefore is not entitled to deference in the matter. The EPA counters
that it has never interpreted a TMDL as constituting a determination under
its RDA, Reply at 3, and plaintiffs are hard pressed to say otherwise. The
EPA also provides two examples of determinations made independent of the
TMDL process: one in the Long Creek watershed in Maine, and another
preliminary determination (never finalized) to exercise the RDA to limit
stormwater discharges along the Upper/Middle Charles. Defs.’ Mem. at 1415, 17 n.16. These examples are of limited value, as in both cases, while the
determinations invoke the RDA, neither affected body of water had an
approved TMDL in place.

See EPA, Preliminary Residual Designation

Pursuant

Water

to

Clean

Act,

Long

Creek

(2008),

https://www3.epa.gov/region1/npdes/stormwater/assets/pdfs/LongCreek
RD.pdf; EPA, Charles River Preliminary Residual Designation Pursuant to

The EPA emphasizes that it does not approve or disapprove
implementation plans, although they do inform its approval of the overall
TMDL. Defs.’ Ex. 4, Dkt. #22-5, at 19, 21, 22; Defs.’ Ex. 5, Dkt. #22-6, at 11;
Defs.’ Ex. 6, Dkt. #22-7, § 9.
6

15

Clean Water Act (2008), https://www.epa.gov/sites/production/files/201503/documents/rodfinalnov12.pdf.

Nevertheless,

the

mostly

empty

historical record is of no help to plaintiffs. The relevant question is not
whether the EPA has a long history of exercising the RDA, but whether its
past practice conflicts with its present interpretation or demonstrates that
the EPA’s interpretation is a post hoc rationalization of its prior behavior.
See SmithKline Beecham, 132 S. Ct. at 2166-2167. Neither is the case here;
the fact that the EPA has not previously viewed the approval of a TMDL as
an exercise of the RDA demonstrates consistency, not conflict. See Decker,
133 S. Ct. at 1337-1338.
Second, plaintiffs rely on a decision of the Vermont Environmental
Board involving NPDES permits for stormwater dischargers, In re
Stormwater NPDES Petition, 2008 WL 4097449 (Vt. Envtl. Bd. Aug. 28,
2008). In that case, the Board ordered the Vermont Agency of Natural
Resources (ANR) to determine which stormwater point sources in certain
watersheds were required to obtain NPDES permits. Id. at *25-26. In
particular, plaintiffs focus on language from the Board’s opinion
emphasizing that the duty to require permits is nondiscretionary once a
determination has been made that a stormwater source is a contributor to
water quality violations.

Id. at *23 (“[O]nce the currently unregulated
16

discharges that contribute pollutants are identified, exercise of RDA is not
optional.”).
The Vermont decision does not take plaintiffs very far. The Board did
not hold that the relevant TMDLs, standing alone, constituted an exercise of
the RDA. Nor did it address the question of whether a determination under
the RDA is a procedure separate from the TMDL process. This is likely
explained by the fact that the case arose as an appeal from the ANR’s denial
(for the second time) of a citizen petition seeking the issuance of NPDES
permits for the affected bodies of water — a petition authorized by EPA
regulations. Id. at *3-5; see 40 C.F.R. § 122.26(f)(2). The ANR was under
instructions from the Vermont Supreme Court to undertake a fact-specific
inquiry in response to the petition to determine whether each discharge
identified in the petition contributed to a water quality violation (and thus
required an NPDES permit). In re Stormwater NPDES Petition, 2008 WL
4097449, at *19-20. In other words, the Board’s order simply skipped over
the first stage of the EPA’s internal process.7

Even if the Board’s decision had addressed the question of what
procedure is envisioned by the RDA, that decision would be entitled to
minimal weight in this court’s analysis. Pursuant to Vermont law, the Board
exercised de novo review of the ANR’s interpretation of federal law and
federal regulations, affording the agency no deference. In re Stormwater
NPDES Petition, 2008 WL 4097449, at *16. Here, however, for the reasons
17
7

This leaves plaintiffs’ motion to amend. Leave to amend at this stage
of the litigation should be freely given, see Fed. R. Civ. P. 15(a)(2), unless in
the totality of the circumstances, the court concludes that the request is
unduly delayed, made in bad faith, futile, or reflects an absence of due
diligence by the moving party, Palmer v. Champion Mortg., 465 F.3d 24, 3031 (1st Cir. 2006).
On July 10, 2013, plaintiff Conservation Law Foundation, in
conjunction with two other environmental organizations, submitted a citizen
petition pursuant to EPA regulation 40 C.F.R. § 122.26(f)(2), requesting that
the EPA exercise its RDA over commercial, industrial, and institutional
“non-de minimis” stormwater discharges in a large swath of waters
throughout New England, including the Charles. Dkt. #51-2 at 2, 11. The
petition identified a range of pollutants of concern, including nutrients. Dkt.
#51-2 at 11-20. The EPA is formally required to issue a final decision on such
petitions within 90 days of receipt. Id. § 122.26(f)(5). The EPA Region I
Office responded to the petition several months later on March 11, 2014,
declaring that it was “neither granting the petition as it is currently framed,
nor is it denying the petition.” Dkt. #45-2 at 2. Instead, the EPA announced

explained above, the EPA is entitled under controlling law to deference in
interpreting its own regulations.
18

its intention “to evaluate individual watersheds, focusing on the nature of the
impairment and the extent to which stormwater discharges from
[commercial, industrial, and institutional] sites are contributing to any such
impairment, to determine whether and the extent to which exercise of RDA
is appropriate.” Id. Plaintiffs’ proposed amendment adds a claim that the
EPA failed to issue a final decision on the 2013 petition within the mandated
90-day period or since.
A prerequisite to the waiver of sovereign immunity in the CWA’s citizen
suit provision is that a plaintiff cannot bring suit until 60 days after providing
notice to the EPA Administrator of the alleged failure to fulfill a
nondiscretionary duty. See 33 U.S.C. § 1365(b)(2); Paolino v. JF Realty,
LLC, 710 F.3d 31, 36 n.4 (1st Cir. 2013) (satisfaction of the notice
requirement is a “mandatory condition[] precedent to the filing of a citizen
suit”). EPA regulations require that the notice “describe with reasonable
specificity the action taken or not taken by the Administrator which is alleged
to constitute a failure to perform such act or duty.” 40 C.F.R. § 135.3(b).
Plaintiffs suggest that they satisfied this requirement by means of the
notice of suit that authorized the filing of this case. That notice, however,
asserted that the EPA had failed to render a final decision on a petition
plaintiffs submitted in February of 2009. Dkt. #48-1 at 1-2, 7. The 2009
19

petition requested that the EPA exercise its RDA on all commercial,
industrial, institutional, and high-density residential sources of stormwater
discharges that contain one acre or more of impervious surface area located
within the Charles River watershed. Id. at 1, 7; Dkt. #51-2 at 2. Plaintiffs
withdrew the petition by letter dated February 25, 2016 (the same day this
suit was filed), Dkt. #48-2 at 1, which may explain why no claim based on
that petition was brought in this case. The letter of notice made no mention
of the 2013 petition described in the proposed new count.
While plaintiffs object to any elevation of form over substance, this
unfairly devalues the importance of the notice obligation.

Many

environmental statutes contain an identical 60-day notice requirement, and
the Supreme Court has made clear that notice serves two valuable purposes.
First, the notice requirement “allows Government agencies to take
responsibility for enforcing environmental regulations, thus obviating the
need for citizen suits.” Hallstrom v. Tillamook County, 493 U.S. 20, 29
(1989).

Second, the notice requirement “gives the alleged violator ‘an

opportunity to bring itself into complete compliance with the Act and thus
likewise render unnecessary a citizen suit.’”

Id., quoting Gwaltney of

Smithfield, Inc. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 60 (1987).

20

The second purpose is controlling here. Where the EPA faces a suit
premised on its failure to fulfill a nondiscretionary duty, it deserves notice of
the duty it is alleged to have abdicated and the action sought by the
prospective plaintiff so that it may avoid a suit through compliance. See
Allegheny Cty. Sanitary Auth. v. U.S. E.P.A., 732 F.2d 1167, 1177 (3d Cir.
1984). The notice given in this case, which focused on the 2009 petition, did
not provide “reasonable notice” of a claim based on the Administrator’s
alleged failure to act on the 2013 petition. 40 C.F.R. § 135.3(b). The 2013
and 2009 petitions differ in geographic scope, the pollutants identified, the
classes of dischargers targeted, the identity of the petitioners, and the
procedural posture of the petition before the agency. The 2013 petition on
which plaintiffs now seek to sue does not discuss or identify pathogens as a
pollutant of concern, despite the fact that pathogen pollution is the basis for
Count III of the original Complaint. It follows that the proposed amendment
would be futile because the notice plaintiffs filed does not inform the
Administrator that the claim involves a failure to act on the 2013 petition.
The court concludes by noting that its ruling in favor of the EPA is not
necessarily the last word on the matter. As plaintiffs are well aware, the
citizen petition procedure remains open to them. Both the Long Creek and
Vermont designations discussed above were the product of citizen petitions
21

brought by plaintiff Conservation Law Foundation.

Although plaintiffs

suggested at oral argument that the 90-day deadline for decisions is
frequently ignored by the EPA, there is less justification for delay by the EPA
in this instance, where the TMDLs already contain highly detailed
information regarding stormwater discharges, their severe impact on the
Charles, and the reductions required from major land use categories to
achieve water quality standards.8 In any event, the issue of the EPA’s
responsiveness is a matter for another day.
ORDER
For the foregoing reasons, plaintiffs’ motion to amend is DENIED. The
EPA’s motion to dismiss for lack of subject matter jurisdiction is ALLOWED
without prejudice. The clerk will enter the dismissal and close the case.
SO ORDERED.
/s/ Richard G. Stearns
__________________________
UNITED STATES DISTRICT JUDGE

The court also observes that the citizen petition procedure has the
benefit of allowing public comment on a proposed exercise by the EPA of its
RDA. See, e.g., Long Creek Preliminary Residual Determination at 1.
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8