FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATURAL RESOURCES DEFENSE 

COUNCIL; WATERKEEPER ALLIANCE,

Plaintiffs-Appellees,

and

STATE OF CONNECTICUT; NEW YORK

STATE DEPARTMENT OF

ENVIRONMENTAL CONSERVATION;

STATE OF NEW YORK, Nos. 07-55183

Plaintiffs-intervenors-Appellees, 07-55261

v.  D.C. No.

CV-04-08307-GHK UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY; STEPHEN L. OPINION

JOHNSON,

Defendants-Appellants,

and

NATIONAL ASSOCIATION OF HOME

BUILDERS; ASSOCIATED GENERAL

CONTRACTORS OF AMERICA,

Defendants-intervenors-Appellants. 

Appeal from the United States District Court

for the Central District of California

George H. King, District Judge, Presiding

Argued and Submitted

July 17, 2008—Pasadena, California

Filed September 18, 2008

Before: Barry G. Silverman, Johnnie B. Rawlinson, and

Milan D. Smith, Jr., Circuit Judges.

13145
Opinion by Judge Milan D. Smith, Jr.

13146 NRDC v. USEPA
COUNSEL

Robert Lundman, United States Department of Justice, Washington, D.C., for the defendants-appellants. 

Jeffrey Longworth, Barnes & Thornburg LLP, Washington,

D.C., for the defendants-intervenors-appellants. 

Kim Landsman, Patterson Belknap Webb & Tyler LLP, New

York, New York, & Melanie Shepherdson, National

Resources Defense Council, Washington, D.C., for the

plaintiffs-appellees. 

Douglas P. Carstens, Chatten Brown & Carstens, Santa Monica, California, & Richard Dearing, State of New York, New

York, New York, for the plaintiffs-intervenors-appellees.

OPINION

MILAN D. SMITH, JR., Circuit Judge: 

Plaintiffs-Appellees, National Resources Defense Council

(NRDC) and Waterkeeper Alliance Inc. (collectively,

NRDC), sued Defendants-Appellants, the United States EnviNRDC v. USEPA 13149
ronmental Protection Agency and its administrator (collectively, EPA), under the Clean Water Act (CWA) and the

Administrative Procedure Act (APA), seeking to compel the

EPA to promulgate effluent limitation guidelines (ELGs) and

new source performance standards (NSPSs) for storm water

pollution discharges caused by the construction and development industry (construction industry). The States of Connecticut and New York, and the New York State Department of

Environmental Conservation (collectively, state-intervenors)

intervened on behalf of NRDC; the National Association of

Home Builders and Associated General Contractors of America (collectively, industry-intervenors) intervened on behalf of

the EPA. 

The district court exercised its jurisdiction under the Clean

Water Act’s citizen-suit provision, CWA § 505(a)(2), 33

U.S.C. § 1365(a)(2),1 denied Defendants’ motion to dismiss,

granted Plaintiffs partial summary judgment on their claim

that the CWA requires the EPA to issue ELGs and NSPSs for

the construction industry, and issued a permanent injunction

compelling the EPA to do so.2 We have jurisdiction to review

these decisions under 28 U.S.C. §§ 1291 and 1292(a), and we

affirm. 

BACKGROUND

A. Statutory Background 

Congress enacted the CWA “to restore and maintain the

chemical, physical, and biological integrity of the Nation’s

1We cite to the original Act throughout this opinion, and provide a parallel cite to the U.S. Code only the first time we cite each CWA provision.

See Our Children’s Earth Found. v. EPA, 527 F.3d 842, 845 n.1 (9th Cir.

2008) [hereinafter OCEF]. 

2As used throughout this opinion, the term “Defendants” refers to the

EPA and industry-intervenors. The term “Plaintiffs” refers to NRDC and

state-intervenors. 

13150 NRDC v. USEPA
waters.” 33 U.S.C. § 1251(a). In furtherance of the CWA’s

objective of eliminating the “discharge of pollutants into the

navigable waters,” id., the Act prohibits the “discharge of any

pollutant.” CWA § 301(a), 33 U.S.C. § 1311(a). The CWA

defines the “discharge of a pollutant” as “any addition of any

pollutant to navigable waters from any point source.” CWA

§ 502(12), 33 U.S.C. § 1362(12). A “point source” is “any

discernable, confined and discrete conveyance, including but

not limited to[,] any pipe, ditch, channel . . . from which pollutants are or may be discharged.” CWA § 502(14). 

Despite § 301(a)’s general prohibition on the discharge of

pollutants, the CWA also establishes a permit system that

authorizes the discharge of some pollutants—the National

Pollutant Discharge Elimination System (NPDES). See CWA

§ 402, 33 U.S.C. § 1342. Under the NPDES, the EPA and

approved states may issue permits for the discharge of pollutants that meet certain requirements outlined in § 402. Taken

together, §§ 301(a) and 402 “ ‘prohibit[ ] the discharge of any

pollutant from a point source into navigable waters of the

United States without an NPDES permit.’ ” N.W. Envt’l Advocates v. EPA, __ F.3d __, Nos. 03-74795, 06-17187, 06-

17188, 2008 WL 2813103, at *1 (9th Cir. July 23, 2008)

(quoting N. Plains Res. Council v. Fidelity Exploration &

Dev. Co., 325 F.3d 1155, 1160 (9th Cir. 2003)). 

NPDES permits “place limits on the type and quantity of

pollutants that can be released into the Nation’s waters,” S.

Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541

U.S. 95, 102 (2004), and must set forth “effluent limitations,”

OCEF, 527 F.3d at 848. “Effluent limitations” are “restriction[s] . . . on [the] quantit[y], rates, and concentration[ ] of

chemical, physical, biological, and other constituents which

are discharged from point sources into navigable waters.”

CWA § 502(11). 

The specific effluent limitations in an NPDES permit are

determined according to the more general ELGs and NSPSs,

NRDC v. USEPA 13151
guidelines that are separately promulgated by the EPA. CWA

§ 304(b), 33 U.S.C. § 1314(b); CWA § 306(b), 33 U.S.C.

§ 1316(b); E.I. duPont de Nemours & Co. v. Train, 430 U.S.

112, 116-17 (1977). ELGs are technology-based restrictions

on water pollution that apply to sources of pollution already

in existence, see CWA § 304(b); NSPSs are technology-based

restrictions that apply to “new sources” of pollution. CWA

§ 306(a)(2). “A technology-based approach to water quality

focuses on the achievable level of pollutant reduction given

current technology.” OCEF, 527 F.3d at 845; see also

Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486, 491-92 (2d

Cir. 2005) (stating that ELGSs and NSPSs “are technologybased, because they are established in accordance with various technological standards that the Act statutorily provides”

—for example, “the best available technology economically

achievable” or “the best conventional pollutant control

technology”—and that these standards “vary depending upon

the type of pollutant involved, the type of discharge involved,

and whether the point source in question is new or already

existing”). 

Section 304(m) provides that, every two years, the EPA

“shall publish in the Federal Register a plan which shall . . .

identify categories of sources discharging toxic or nonconventional pollutants” for which ELGs and NSPSs have not yet

been published, and “establish a schedule for promulgation of

effluent guidelines for categories identified.” Under this

schedule, the “promulgation of [these] guidelines shall be no

later than . . . 3 years after the publication of the plan.” Id.

ELGs and NSPSs are relevant to this appeal because the

Plaintiffs claim that the EPA violated a non-discretionary duty

to promulgate ELGs and NSPSs for the construction industry

after it was listed as a point-source category in a plan developed under § 304(m). 

B. Administrative Proceedings 

In March 1999, the EPA announced that it was undertaking

rulemaking to address pollution from storm water discharge

13152 NRDC v. USEPA
associated with construction activities, “specifically for new

development, as well as to those associated with redevelopment activities.” 64 Fed. Reg. 15,158, 15,158 (March

30, 1999). In its public notice, the EPA stated that it “chose

to begin development of [ELGs] for the construction and

development industry[, in relevant part,] to support applicable

state and local requirements for erosion and sediment controls

and storm water best management practices,” because “[s]tate

and local requirements vary widely [and] [s]ediment loadings

from construction site discharges can be orders of magnitude

higher than those associated with discharges from undisturbed

areas,” and also because “construction site runoff can contribute high loadings of nutrients and metals to receiving

streams.” Id. In 2000, the EPA published its final notice of an

effluent guidelines plan, which listed construction activities as

a point-source category requiring guidelines under § 304(m).

65 Fed. Reg. 53,008, 53,011 (Aug. 31, 2000). 

On June 24, 2002, the EPA issued a proposed rule to

address storm water discharge from construction sites. 67 Fed.

Reg. 42,644, 42,644 (June 24, 2002). The EPA did not set

forth a single proposed rule, but described three “options” it

was considering. “Option 1” was to establish “minimum

requirements for conducting site inspections and providing

certification as to design and completion of controls required

by” the authority issuing NPDES permits. Id. at 42,646. “Option 2” would establish ELGs as well as the minimum requirements comprising Option 1. Id. “Option 3” would establish

“no new requirements,” and “[b]oth the control requirements

and the certification requirements would be left to the best

professional judgment of the permitting authority.” Id.

On April 26, 2004, the EPA published its final action under

the caption “Proposed Rule: Withdrawal.” 69 Fed. Reg.

22,472, 22,472 (April 26, 2004). The EPA stated: “[t]his

action withdraws the proposed [ELGs and NSPSs] that EPA

proposed for the construction and development industry” on

June 24, 2002. Id. at 22,473. It further stated, “[w]e have

NRDC v. USEPA 13153
decided not to promulgate [ELGs] and standards for the construction and development industry and instead have selected

the option [Option 3] that relies on the range of existing programs, regulations, and initiatives at the Federal, State, and

local level for the control of storm water runoff from construction sites.” Id. at 22,477. 

The EPA explained its decision “not to promulgate [ELGs]

and standards” by stating that it believed that construction site

storm water discharges were already “being adequately

addressed” because the “existing NPDES” regulations require

permits for the vast majority of construction sites nationwide,

and that the cost was “simply too high and . . . disproportionately large” given the reductions that would be attributable to

the proposed ELGs. Id. The EPA had determined that the

annual cost of the proposed ELGs would be more than half a

billion dollars and would result in the displacement of a number of jobs while the existing permit programs were capable

of controlling 80-90% of sediment runoff from construction

sites and the proposed rule would only remove an additional

1% more. Id. The EPA also “decided not to promulgate

NSPS[s] because . . . discharges associated with construction

activity generally are not appropriately characterized as ‘new

sources,’ ” and the EPA believed that the definition of “new

source” should be read to exclude construction sites. Id. at

22,480 (“To include construction activity itself within the definition of a ‘new source’ would be to view construction sites

as things that are themselves constructed.”). 

In subsequent years, the EPA removed the construction

industry from plans it published under § 304(m). See 69 Fed.

Reg. 53,705 (Sept. 2, 2004); 71 Fed. Reg. 76,644 (Dec. 21,

2006). In its 2004 plan, the EPA stated:

[T]he analysis under CWA section 304(m)(1)(B)

applies only to industrial categories of sources that

are discharging non-trivial amounts of toxic or nonconventional pollutants to waters of the United

13154 NRDC v. USEPA
States. EPA did not consider, under this analysis,

industrial activities where conventional pollutants,

rather than toxic or non-conventional pollutants, are

the pollutants of concern. For example, although

EPA had identified stormwater discharges from [the

construction industry] as a new category in its 2000

and 2002 effluent guidelines program plans, EPA is

not identifying [the construction industry] in this

2004 plan based on new information that discharges

from this activity consist predominately of conventional pollutants under CWA § 304(a)(4), in this case

total suspended solids. 

69 Fed. Reg. at 53,718. In its 2006 plan, EPA similarly stated

that it “did not identify . . . the construction industry because

its discharges consist almost entirely of conventional pollutants,” and that the “EPA mistakenly identified this industry

under section 304(m)(1)(B) in the 2002 plan, not realizing

that its discharge” was so composed. 71 Fed. Reg. at 76,664-

65. According to the EPA, it corrected its mistake by removing the industry from its 2004 plan. Id.

C. District Court Proceedings 

NRDC and the state-intervenors brought this suit to challenge the EPA’s decision not to issue ELGs and NSPSs for

the construction industry after it had listed the industry in a

plan it issued under § 304(m). The EPA and the industryintervenors moved to dismiss, claiming that this court, not the

district court, had original jurisdiction pursuant to

§ 509(b)(1)(E), 33 U.S.C. § 1369(b)(1)(E), that the Plaintiffs

lacked standing to sue, and that certain claims were precluded.3

The district court denied the motion to dismiss. 

3The Defendants have abandoned their claim preclusion argument on

appeal. 

NRDC v. USEPA 13155
The district court granted the Plaintiffs’ motion for partial

summary judgment on the basis that the EPA failed to comply

with the CWA by not performing its non-discretionary duty

to promulgate ELGs and NSPSs for the construction industry.

The district court issued a permanent injunction requiring the

EPA to issue ELGs and NSPSs for the construction industry

no later than December 1, 2009. Defendants now appeal these

rulings. 

DISCUSSION

A. District Court’s Original Jurisdiction 

1. Standard of Review

We review a district court’s assumption of jurisdiction de

novo. United States v. Bennett, 147 F.3d 912, 913 (9th Cir.

1998). We also review a district court’s interpretation of the

CWA de novo. League of Wilderness Defenders/Blue Mountains Biodiversity Project v. Forsgren, 309 F.3d 1181, 1183

(9th Cir. 2002). 

2. Analysis 

[1] CWA § 505(a)(2) grants the district court jurisdiction

over suits “against the Administrator where there is alleged a

failure of the Administrator to perform any act or duty under

this chapter which is not discretionary with the Administrator.” Section 505(a)(2) is an exclusive grant of original jurisdiction to the district courts. Trustees for Alaska v. EPA, 749

F.2d 549, 558 (9th Cir. 1984). CWA § 509(b)(1)(E) grants the

courts of appeal jurisdiction to “[r]eview . . . the Administrator’s action . . . in approving or promulgating any effluent

limitation or other limitation under section 1311, 1312, 1316,

or 1345 of this title.” Section 509(b)(1)(E) is an exclusive

grant of original jurisdiction to the courts of appeal. OCEF,

527 F.3d at 847 (referring to § 509(b)(1) as “the circuit

court’s exclusive jurisdiction”); Maier v. EPA, 114 F.3d 1032,

13156 NRDC v. USEPA
1037 (10th Cir. 1997) (calling the court of appeals’ jurisdiction under § 509(b)(1) “exclusive”). However, we have cautioned that our jurisdiction under § 509(b)(1) is not to be

construed expansively, particularly given the “specificity and

precision” that Congress used in identifying the actions that

fall under § 509(b)(1). N.W. Envt’l Advocates, 2008 WL

2813101, at *6. 

[2] Defendants argue that the district court erred in exercising jurisdiction under § 505(a)(2), and that this court has

exclusive original jurisdiction over Plaintiffs’ claim that the

EPA violated its non-discretionary duty to promulgate ELGs

and NSPSs under § 509(b)(1)(E).4 Plaintiffs argue that the district court properly exercised its jurisdiction. We agree with

Plaintiffs, and we hold that where a plaintiff alleges that the

EPA has failed to perform a non-discretionary duty under the

CWA and the plaintiff does not challenge the substance of

any existing regulations, the district courts have exclusive

jurisdiction under § 505(a)(2). 

In Trustees for Alaska, the NRDC alleged a failure by the

EPA “to comply with a nondiscretionary duty to promulgate

industry-wide rules.” 749 F.2d at 558. We concluded that the

district court had exclusive jurisdiction over the action under

§ 505(a)(2), stating that where a plaintiff alleges a failure by

the EPA “to perform any act or duty under the [CWA] which

is not discretionary,” the federal district courts have exclusive

jurisdiction. Id. (quoting CWA § 505(a)(2)). Here, as in Trustees for Alaska, the Plaintiffs have alleged a failure by the

Administrator to perform a non-discretionary duty. Cf. id.

(“[T]he EPA has not yet promulgated regulations [establishing ELGs] governing the placer miner industry.”). 

4For analytical purposes in determining whether the district court or the

court of appeals has original jurisdiction, we assume, as Plaintiffs claim,

that the EPA’s duty to promulgate ELGs and NSPSs is not discretionary.

We reach the merits of whether the EPA’s duty is discretionary in Section

C, infra. 

NRDC v. USEPA 13157
We acknowledge that the underlying facts in Trustees for

Alaska differ slightly from the facts of this case. Though the

EPA did not promulgate ELGs for the relevant industry in

either case, in Trustees for Alaska, the agency had not

undertaken a rulemaking or any other procedural step towards

promulgating ELGs. In contrast, here, the EPA gave notice

and provided comment periods and proposed three “options”

before choosing not to promulgate ELGs and NSPSs related

to storm water runoff from construction sites. And, as a result

of its rulemaking, the EPA made an affirmative choice to

“rel[y] on the range of existing programs, regulations, and initiatives at the Federal, State, and local level for the control of

storm water runoff from construction sites.” 69 Fed. Reg. at

22,477. 

This distinction does not affect our jurisdictional analysis,

however, because Plaintiffs do not challenge the substance of

any of these existing programs or regulations. Plaintiffs do not

discuss the substance of any existing regulations or express

any opinion concerning the existing regulations. Thus, just

like the plaintiffs in Trustees for Alaska, Plaintiffs here are

concerned exclusively with the EPA’s failure to promulgate

certain guidelines. Such an action falls squarely within the

district court’s jurisdiction. Trustees for Alaska, 749 F.2d at

558; see CWA § 505(a)(2) (granting the district court jurisdiction over suits “against the Administrator where there is

alleged a failure of the Administrator to perform any act or

duty under this chapter which is not discretionary with the

Administrator”). 

Indeed, the fact that Plaintiffs do not challenge the substance of any existing regulations is precisely why

§ 509(b)(1)(E) is inapplicable. Section 509(b)(1)(E) grants the

court of appeals jurisdiction to “[r]eview . . . the Administrator’s action . . . in approving or promulgating any effluent

limitation or other limitation under section 1311, 1312, 1316,

or 1345 of this title.” Even if, as Defendants argue, we could

construe the EPA’s decision to rely on existing regulations as

13158 NRDC v. USEPA
an “approval” of an “other limitation” under one of the enumerated sections, this is insufficient to bring Plaintiffs’ claim

within § 509(b)(1)(E). This is so because Plaintiffs do not

seek a review of the existing regulations that the Administrator is alleged to have “approved.” 

[3] To the extent any doubt remains about whether the district court had original jurisdiction over Plaintiffs’ claim, it is

easily resolved by our recent decision in Our Children’s

Earth Foundation. In OCEF, environmental groups contended

that the EPA “failed to fulfill its mandate to review effluent

guidelines and limitations in a timely manner and in accord

with technology-based standards.” 527 F.3d at 844. The court

affirmed the district court’s exercise of jurisdiction under

§ 505(a)(2), stating that this court’s exclusive jurisdiction

under § 509(b)(1) “extends only to a substantive review of the

appropriateness of the guidelines actually promulgated, and

not to the threshold question of whether the statutory requirements of the CWA have been met.” Id. at 847 (emphasis

added); see also N.W. Envt’l Advocates, 2008 WL 2813103,

at *7 (“Section 509(b)(1)(E) authorizes original court of

appeals jurisdiction for challenges to regulations that establish

numerical limitations and similar limits.”). Because Plaintiffs

never requested such a substantive review, but rather asked

the district court to answer the “threshold question of whether

the statutory requirements of the CWA [were] met” with

respect to regulating storm water runoff from construction

activities, OCEF confirms that the district court’s exercise of

jurisdiction under § 505(a)(2) was proper. 527 F.3d at 847. 

This case differs from the Tenth’s Circuit’s decision in

Maier precisely because Plaintiffs are not requesting a review

of existing regulations. In Maier, the court held that it had

jurisdiction under § 509(b)(1)(E) to hear a challenge to the

EPA’s denial of a petition requesting that the EPA initiate a

rulemaking on certain CWA regulations. 114 F.3d at 1038. At

first glance, Maier bears some similarity to this case because

the plaintiff in Maier challenged the EPA’s choice not to take

NRDC v. USEPA 13159
a certain action. See id. at 1036. In Maier, however, as a part

of his challenge, the plaintiff argued that “the existing regulations . . . were inadequate.” Id. The Maier court noted that it

had “no difficulty construing [the suit] as a challenge to an

‘action in approving or promulgating’ ” under § 509(b)(1)(E)

because the plaintiff was “essentially challenging the sufficiency of the EPA’s secondary treatment regulation.” Id. at

1038. Indeed, the court specified that “[w]here petitioners’

challenge is to the substance of a regulation that the agency

has already promulgated, exclusive jurisdiction in the court

of appeals may not be evaded merely by styling the claim as

one for failure to revise.” Id. (emphasis added). Moreover, the

Maeir court went on to distinguish the case before it from

Trustees for Alaska and other cases, like this case, where “the

EPA had failed to issue the disputed regulations at all.” Id. at

1039. 

Pennsylvania Department of Environmental Resources v.

EPA, 618 F.2d 991 (3d Cir. 1980), also supports our analysis.

That case involved the EPA’s promulgation of NSPSs for the

coal mining industry. Id. at 993. The EPA had added the coal

mining industry as a new category of point sources and promulgated regulations; but, for certain water polluting discharges, the regulations issued merely deferred the

promulgation of regulations. Id. at 993-94. Noting that the

plaintiffs were seeking to compel the EPA to perform a nondiscretionary duty to promulgate NSPSs, the court concluded

that the suit should have been brought in district court under

§ 505(a)(2). Id. at 995. 

[4] Significantly, the Third Circuit noted that in cases

where the courts of appeal have jurisdiction to review a failure to act under § 509, the review focuses on the substance or

effect of promulgated regulations and not “a petitioner’s

request that the EPA be ordered to promulgate new or different regulations.” Id. at 996. We agree with the Third Circuit

that “an allegation of inadequacy of a set of regulations is

quite different from” what Plaintiffs’ allege here—“that a

13160 NRDC v. USEPA
needed regulation was nonexistent.” Id. We therefore hold

that the district court properly exercised its jurisdiction over

Plaintiffs’ claim that the EPA had violated its nondiscretionary duty to promulgate ELGs and NSPSs for the

construction industry under § 505(a)(2). 

B. Standing

1. Standard of Review 

We review a district court’s determination of standing de

novo. Buono v. Norton, 371 F.3d 543, 545 (9th Cir. 2004).

2. Analysis 

a. Environmental-Group Plaintiffs

Organizations have standing to sue on behalf of their members when: “(a) [the] members would otherwise have standing

to sue in their own right; (b) the interests [the organization]

seeks to protect are germane to the organization’s purposes;

and (c) neither the claim asserted nor the relief requested

requires the participation of individual members in the lawsuit.” Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d

1141, 1147 (9th Cir. 2000) (internal quotation marks and citations omitted). The industry-intervenors challenge only

whether the members of the environmental-group Plaintiffs

(NRDC and Waterkeeper Alliance) have standing to sue in

their own right under Article III.5 We conclude that they do.

[5] To meet Article III’s standing requirements, the party

invoking federal jurisdiction bears the burden to show that it

has: (1) “suffered an injury in fact—an invasion of a legally

protected interest which is (a) concrete and particularized . . .

and (b) actual or imminent, not conjectural or hypothetical”;

(2) that the injury is “fairly trace[able] to the challenged

5The EPA has not argued that any Plaintiff lacks standing on appeal. 

NRDC v. USEPA 13161
action of the defendant”; and (3) that it is “likely, as opposed

to merely speculative, that the injury will be redressed by a

favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S.

555, 560-61 (1992) (internal quotation marks and citations

omitted). In addition to these Article III standing requirements, our exercise of jurisdiction is also limited by prudential considerations. Bennett v. Spear, 520 U.S. 154, 162

(1997). One such consideration is whether a plaintiff’s grievances “arguably fall within the zone of interests protected or

regulated by the statutory provision . . . invoked in the suit.”

Id. Section 505(a)(2) of the CWA is, however, a citizen-suit

provision that “extends standing to the outer boundaries . . .

of Article III.” Ecological Rights Found., 230 F.3d at 1147

(citing Middlesex County Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 16 (1981)). As a result, we need not

consider whether Plaintiffs have prudential standing in this

case. 

We turn first to whether the members of the environmentalgroup Plaintiffs have suffered an injury in fact. “The ‘injury

in fact’ requirement in environmental cases is satisfied if an

individual adequately shows that she has an aesthetic or recreational interest in a particular place, or animal, or plant species and that that interest is impaired by a defendant’s

conduct.” Id.; see also Ocean Advocates v. U.S. Army Corps

of Eng’rs, 402 F.3d 846, 859-60 (9th Cir. 2005) (stating that

injury in fact requires an individual to show “a connection to

the area of concern sufficient to make credible the contention

that the person’s future life will be less enjoyable . . . if the

area in question remains or becomes environmentally degraded”) (internal quotation marks and citation omitted). The

injury to the plaintiff, not to the environment, is the relevant

showing. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.,

Inc., 528 U.S. 167, 181 (2000). 

[6] Members of the NRDC and Waterkeeper Alliance have

submitted several declarations averring that they have suffered an injury in fact. These declarations state that the mem13162 NRDC v. USEPA
bers have, for years, used particular waterways for aesthetic

and recreational purposes. They also state that the individuals’

use and enjoyment of those waterways has been diminished

due to storm water discharge from construction sites, and

many declarations describe having observed storm water discharge flowing directly from construction sites into the waterways the members use. The Supreme Court found similar

evidence sufficient to establish injury in fact in Friends of the

Earth. In that case, the Court concluded that the environmental group members established injury in fact where their “reasonable concerns about the effects of [Laidlaw’s discharges],

directly affected [their] recreational, aesthetic, and economic

interests.” Friends of the Earth, 528 U.S. at 183-84. Similarly,

here, the members’ statements that their use of specific waterways has been diminished due to their concerns about discharge from a particular source (here, the construction sites)

are sufficient to establish injury in fact. 

[7] Industry-intervenors also argue that the members of the

environmental-group Plaintiffs cannot show that their injury

is “fairly trace[able] to the challenged action of the defendant” or “redressable” by the relief they request—i.e., the

EPA’s promulgation of ELGs and NSPSs. Lujan, 504 U.S. at

560-61. These factors, both of which address “causation,” are

closely related and we discuss them together. See Allen v.

Wright, 468 U.S. 737, 753 n.19 (1984) (noting that the

“traceability” and “redressability” requirements of Article III

standing are closely related). 

[8] At the outset of this analysis, we observe that Plaintiffs’

showing on these two factors—whether their injuries are

“traceable” to the EPA’s failure to promulgate ELGs and

NSPSs and would be “redressed” by the EPA’s promulgation

of ELGs and NSPSs—cannot be entirely precise absent

knowledge of the substance of the regulations that the EPA

would promulgate if required to do so.6 As the district court

6Though Plaintiffs do not claim that the EPA denied them any procedure to which they were entitled, their suit is nevertheless similar to suits

NRDC v. USEPA 13163
noted, to require a precise showing “would mean that no

plaintiff would have standing to bring such a suit, as one cannot demonstrate the efficacy of regulations that have yet to be

issued.” Thus, Plaintiffs can satisfy the “traceability” and “redressability” factors by showing that the type of storm water

discharge causing their injury is that which ELGs and NSPSs

aim to address, and that ELGs and NSPSs are likely to reduce

the risk of the pollution causing their injury. See Ecological

Rights Found., 230 F.3d at 1152 n.12 (acknowledging that the

CWA’s rules are “designed to reduce the risk of pollution”).

Plaintiffs have made this showing. 

[9] First, the members’ declarations support that the pollution they complain of is that which ELGs and NSPSs aim to

address. The members’ declarations support that storm water

discharge flows from active construction sites into the bodies

of water they use and enjoy, and that the storm water runoff

they complain of is polluting and diminishing the quality of

the bodies of water they use. See, e.g., Anna E. Slawsky Decl.

¶ 8 (“I have personally seen sediment run off from a 2-acre

where the plaintiff claims such a procedural injury. The Supreme Court

has noted that suits to force an agency to engage in a procedure do not

require the same certainty that the result of that procedure will have the

desired effect. See Massachusetts v. EPA, 127 S. Ct. 1438, 1453 (2007)

(citing Lujan, 504 U.S. at 572 n.7). A party can therefore enforce a procedural right “so long as the procedures in question are designed to protect

some threatened concrete interest of [theirs] that is the ultimate basis of

[their] standing.” Lujan, 504 U.S. at 573 n.8; see also Massachusetts v.

EPA, 127 S. Ct. at 1453 (stating that a litigant vested with a procedural

right “has standing if there is some possibility that the requested relief will

prompt the injury-causing party to reconsider the decision” alleged to have

harmed the litigant); see also Nat’l Wildlife Fed’n v. Hodel, 839 F.2d 694,

705-06 (D.C. Cir. 1988) (“We note, however, that a party seeking judicial

relief need not show to a certainty that a favorable decision will redress

his injury. A mere likelihood will do.”) (citations omitted). The Plaintiffs

here meet this standard: the relief they call for is designed to protect the

Nation’s waterways, and it is their diminishing ability to use and enjoy

these waterways that is the ultimate basis of their standing. 

13164 NRDC v. USEPA
construction site and a 33-acre construction site (Puppy Creek

runs brown from this site) in Lowell during rains and the erosion along Route 74 mentioned above.”); Michael Mullen

Decl. ¶ 17 (“[B]eginning in 2000 until the present day, I have

conducted inspections of the Prospect Ridge Subdivision

Extension in Troy, Alabama. . . . A number of my inspections

at Prospect Ridge were made during or just following rain

events. During my inspections I witnessed runoff with very

high turbidity and excessive amounts of sediment entering

streets and subsequently storm drains or unnamed tributaries

to Big Creek.”); Don McEnhill Decl. ¶ 15 (“I have personally

witnessed construction activities causing major discharges of

pollutants, including sediment, and documented well over

two-dozen construction sites releasing pollutants into the Russian River watershed.”); id. ¶ 24 (“During the rain season of

2003-2004, I conducted several site visits at the Vintage

Greens subdivision development in Windsor, California. I

was interested in [this] development because it was a large

development and stormwater discharged . . . would flow into

the Windsor Creek and then to the Russian River. During my

visits I witnessed constant stormwater flows containing sediment from the construction site . . . brown in color and very

turbid.”); Constance Powell Decl. ¶¶ 6-7 (“Construction and

development is continuing . . . I have personally seen sediment run off from construction sites flow directly to Lake

Johnson.”). In one declaration, Michael Mullen, the Choctawhatchee Riverkeeper and the Director of the Center for

Environmental Research and Service at Troy University,

described how he sampled the turbidity of two tributaries and

concluded that, as a result of construction runoff, the turbidity

downstream from the construction site was higher than the

turbidity upstream in both tributaries. Michael Mullen Decl.

¶ 23. 

Industry-intervenors contend that the environmental-group

Plaintiffs’ causation evidence is nevertheless insufficient

because they have not definitively established that the pollution they complain of is composed of the toxic and nonNRDC v. USEPA 13165
conventional pollutants that ELGs and NSPSs address. We

disagree. By including the construction industry in plans

issued pursuant to § 304(m), the EPA necessarily identified

the construction industry as a source of toxic and nonconventional pollutants. See CWA § 304(m)(1)(B) (requiring

the EPA to publish a plan identifying “categories of sources

discharging toxic or nonconventional pollutants for which

guidelines . . . have not previously been published”) (emphasis added). In fact, the EPA has explicitly stated that storm

water runoff from construction sites includes toxic and nonconventional pollutants.7

American Petroleum Institute v. EPA, 216 F.3d 50 (D.C.

Cir. 2000), does not suggest that any further evidence of causation is required in this case. In American Petroleum Institute, the plaintiffs challenged the EPA’s decision not to list

sediment found in discarded unleaded gasoline storage tanks

(UGSTS) as hazardous waste under the Resource Conservation and Recovery Act (RCRA). Id. at 63. The plaintiffs’

standing was challenged on the ground that they failed “to

link the harms of which their members complain with the reg7For example, the EPA stated in 1999 that storm water runoff “may

contain or mobilize high levels of contaminants,” including “toxic pollutants [and] toxins,” and that the highest concentrations of such contaminants occurs “during the first major storm after an extended dry period.”

64 Fed. Reg. 68,722, 68,724 (Dec. 8, 1999). The EPA went on to state

“[i]ndividually and combined, these pollutants impair water quality,

threatening designated beneficial uses and causing habitat alteration or

destruction.” Id. The EPA further concluded that intensive construction

activity may severely impact watersheds “because of high pollutant loads,

primarily sediments.” Id. at 68,728. Though the EPA later suggested that

discharge from the construction industry was “predominately” or “almost

entirely” composed of conventional pollutants and that the EPA lacked

data to indicate that toxic and non-conventional pollutants are found in

construction site runoff nationwide, these statements do not squarely reject

the EPA’s earlier statements and still allow that the discharge at issue is

composed of at least some toxic or non-conventional pollutants or toxins.

See 69 Fed. Reg. at 53,718 (Sept. 2, 2004); 71 Fed. Reg. at 76,664 (Dec.

21, 2006); 69 Fed. Reg. 22,472, 22,480 (April 26, 2004). 

13166 NRDC v. USEPA
ulatory actions that they wish EPA to take.” Id. The D.C. Circuit faulted the plaintiffs for failing to present evidence that

the landfills that their members lived near were “of a class

substantially likely to receive UGSTS-filled shipments” or

that “the effects of UGSTS are evident in the landfill’s

groundwater.” Id. at 64. The court further noted that the affidavits the plaintiffs submitted did not trace the pollution of

concern to UGSTS waste. Id. at 65. In contrast to the plaintiffs in American Petroleum Institute, who were challenging

the EPA’s failure to classify one particular pollutant as hazardous waste, the Plaintiffs here allege the EPA has violated

a statute “designed to reduce the risk of pollution.” We have

previously noted that the CWA, in contrast to the statute at

issue in American Petroleum Institute, “embodies a range of

prophylactic . . . rules designed to reduce the risk of pollution.” Ecological Rights Found., 230 F.3d at 1152 n.12. And

we have further stated that “[i]t is not necessary for a plaintiff

challenging violations of rules designed to reduce the risk of

pollution to show the presence of actual pollution in order to

obtain standing.” Id.

[10] Second, by requiring effluent limitations, which are

developed according to ELGs and NSPSs, as a part of a strategy to eliminate the discharge of pollutants and restore and

maintain the integrity of the Nation’s waters, 33 U.S.C.

§ 1251(a), Congress has expressed its view that developing

ELGs and NSPSs reduces the risk of the pollution causing the

members’ injury. Where Congress has expressed the need for

specific regulations relating to the environment, that expression supports an inference that there is a causal connection

between the lack of those regulations and adverse environmental effects. See Nat’l Wildlife Fed’n, 839 F.2d at 708; see

also Alaska Ctr. for the Env’t v. Browner, 20 F.3d 981, 984-

85 (9th Cir. 1994) (noting that plaintiffs could meet the

redressability requirement because Congress had already

determined the relief they sought was the appropriate means

of achieving desired water quality where other methods had

failed); cf. Int’l Ladies Garment Workers’ Union v. Donovan,

NRDC v. USEPA 13167
722 F.2d 795, 811-12 (D.C. Cir. 1983) (“[A]s Congress

passed the Act partly to provide redress to employers from

unfair competition, the suggestion that effective enforcement

of the Act will not have this effect directly contravenes the

congressional judgment underlying the Act.”). 

[11] Together, the members’ declarations establishing that

storm water discharge from the construction industry is polluting the waterways they use, the EPA’s findings that such

discharge may consist of toxic and non-conventional pollutants, and Congress’ determination that ELGs and NSPSs

reduce the risk of such pollution, are sufficient to establish

“traceability” and “redressability.” Based on the foregoing,

we conclude that the environmental-group Plaintiffs have

standing. 

b. State-intervenors 

Only one of the Plaintiffs must have standing to permit our

review. Thus, we consider the state-intervenors’ standing, a

matter that industry-intervenors challenge, only very briefly.

See Massachusetts v. EPA, 127 S. Ct. at 1453 (“Only one of

the petitioners needs to have standing to permit us to consider

the petition for review.”). As with the environmental-group

Plaintiffs, the industry-intervenors contend that the stateintervenors do not claim an injury that is traceable to the

EPA’s decision not to promulgate ELGs and NSPSs or that

would be redressed by the promulgation of EGLs or NSPSs.

[12] State-intervenors claim an injury to their proprietary

interest in protecting their waterways.8See City of Sausalito

8The industry-intervenors incorrectly assert that the state-intervenors are

barred from litigating as parens patrie to enforce a federal statute against

the federal government. In Massachusetts v. EPA, the Supreme Court recognized that Massachusetts (among other states) was entitled to challenge

the EPA’s rejection of its rulemaking petition regarding motor-vehicle

emissions under the CWA. 127 S. Ct. at 1454-55. The Court noted that

13168 NRDC v. USEPA
v. O’Neill, 386 F.3d 1186, 1198 (9th Cir. 2004) (“A municipality . . . has a proprietary interest in protecting its natural

resources from harm.”). Specifically, they claim that they are

injured by the increased pollution in their waterways from

upstream, out-of-state construction sites due to the absence of

national standards to govern storm water runoff from construction sites. This injury is sufficient to constitute an injury

in fact. See id. (concluding that the City of Sausalito met its

burden to establish an “injury in fact” based on its proprietary

interests). 

[13] The state-intervenors have also submitted declarations

to establish that the pollution they complain of is connected

to a lack of national standards. Patricia Primi, an Environmental Scientist in the Environmental Protection Bureau of the

New York State Office of the Attorney General, submitted a

declaration attesting that storm water runoff from construction

sites in Vermont, New Hampshire, and Massachusetts is contributing pollutants to the Long Island Sound, and that storm

water runoff from Vermont is contributing pollutants to the

Lake Champlain Basin. Patricia Primi Decl. ¶¶ 18-19, 23-24.

Angus Eaton, the Chief of the General Permits Section in the

Division of Water for the New York State Department of

Environmental Conservation, submitted a declaration supporting that the upstream states to which Primi referred have different discharge standards enabling a discharge downstream

given Congress’ recognition of a procedural right to challenge the rejection of rulemaking petitions and “Massachusetts’ stake in protecting its

quasi-sovereign interest to protect its territory, the Commonwealth is entitled to special solicitude in our standing analysis.” Id. In reaching this conclusion, the court relied on Georgia v. Tennessee Copper Company, in

which Georgia’s quasi-sovereign interest in “all the earth and air within

its domain” supported federal jurisdiction over its efforts to protect its sovereign territory from air pollution originating outside its borders. 206 U.S.

230, 236-37 (1907). Likewise, here, the state-intervenors have an interest

in protecting in-state waterways from pollution originating outside their

borders. 

NRDC v. USEPA 13169
of excessive amounts of “pollutants found in stormwater runoff” from construction sites. Angus K. Eaton Decl. ¶ 16. And,

as stated above, we take into account Congress’ view that the

promulgation of ELGs and NSPSs will reduce the likelihood

of the pollution of which the state-intervenors complain. See

supra Section B.2.a. We therefore conclude that the stateintervenors also have standing. 

C. The EPA’s Duty to Promulgate ELGs and NSPSs

1. Standard of Review 

We review a district court’s grant of summary judgment de

novo. Buono, 371 F.3d at 545. And, as stated above, we

review the district court’s interpretation of the CWA de novo.

League of Wilderness Defenders/Blue Mountains Biodiversity

Project, 309 F.3d at 1183. Summary judgment is appropriate

“if the pleadings, the discovery and disclosure materials on

file, and any affidavits show that there is no genuine issue as

to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). 

2. Analysis

We must decide whether the EPA had discretion to determine whether to promulgate ELGs and NSPSs for storm

water runoff from the construction industry once it listed the

construction industry as a point source category in a plan published pursuant to § 304(m). We hold that once the EPA listed

the construction industry as a point-source category, it was

required to promulgate ELGs and NSPSs. We therefore affirm

the district court’s grant of summary judgment and the permanent injunction. 

When reviewing the EPA’s construction of a statute that it

administers, we follow the two-step approach set forth in

Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837,

842-44 (1984). At step one, if Congress has “unambiguously

13170 NRDC v. USEPA
expressed its intent on the issue before the court . . . ‘the

court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.’ ” Natural Res. Def.

Council v. EPA, 526 F.3d 591, 602 (9th Cir. 2008) (quoting

Chevron, 467 U.S. at 842-43 & n.9). But if the statute is “silent or ambiguous” with respect to the issue before the court,

we will proceed to step two and decide if the agency’s interpretation “ ‘is based on a permissible construction of the statute.’ ” Id. (quoting Chevron, 467 U.S. at 843). We defer to the

agency’s interpretation as long as it is “based on a permissible

construction.” Chevron, 467 U.S. at 843. 

[14] We conclude that the language of the CWA, when

viewed in its entirety, is clear that the EPA must promulgate

ELGs and NSPSs for the point-source categories it lists in any

plan it publishes under § 304(m). Our analysis begins with

§ 304(m)(1), which requires the EPA, every two years after

February 4, 1987, to “publish in the Federal Register a plan

that shall” 

(A) establish a schedule for the annual review and

revision of promulgated effluent guidelines . . . ; (B)

identify categories of sources discharging toxic or

nonconventional pollutants for which guidelines

under subsection (b)(2) . . . and section 1316 . . .

have not previously been published; and (C) establish a schedule for promulgation of effluent guidelines for categories identified in subparagraph (B),

under which promulgation of such guidelines shall

be no later than . . . 3 years after the publication of

the plan for categories identified in later published

plans [i.e. plans not published within 12 months after

February 4, 1987]. 

By requiring the EPA to “establish a schedule” under which

the guidelines—the ELGs and NSPSs— are promulgated “no

later than . . . 3 years after the publication of the plan,” Congress’ intent to require the EPA to promulgate guidelines is

NRDC v. USEPA 13171
clear.9

 Indeed, Congress used unequivocal language, stating,

in relevant part: “[the] promulgation of such guidelines shall

be no later than . . . 3 years after the publication of the plan.”

CWA § 304(m) (emphasis added.); see Alabama v. Bozeman,

533 U.S. 146, 153 (2001) (“The word ‘shall’ is ordinarily the

language of command.”) (internal quotation marks and citation omitted). 

[15] Other provisions in the CWA likewise support that

Congress intended the promulgation of ELGs and NSPSs to

be mandatory once a point-source category was listed in a

plan under § 304(m). See Nat’l Ass’n of Home Builders v.

Defenders of Wildlife, 127 S. Ct. 2518, 2534 (2007) (stating

that the court should not examine statutory provisions in isolation but “with a view to their place in the overall statutory

scheme”) (internal quotation marks and citations omitted).

Section 304(b), which is referenced by § 304(m)(1), states:

“For the purpose of adopting or revising effluent limitations

. . . the Administrator shall . . . publish within one year of

October 18, 1972, regulations, providing guidelines for effluent limitations.” (Emphasis added). Thus, Congress has con9Defendants contend that our analysis of whether the EPA has a nondiscretionary duty to promulgate NSPSs is controlled by § 306, the provision specifically addressing NSPSs. We disagree. First, because

§ 304(m)(1) expressly references § 306 and applies to both ELGs and

NSPSs, our interpretation of that provision and the duty it creates applies

equally to ELGs and NSPSs identified in a plan under § 304(m)(1). 

Second, the district court, based on information provided by the EPA,

found that “since [§ 304(m)] was enacted, the EPA has promulgated

NSPSs for categories included in [§ 304(m)] plans, but has added no new

categories to [the list of categories in § 306]. Hence [§ 304(m)] seems currently to be the only vehicle by which the EPA identifies new source categories for the purpose of developing NSPSs.” The Defendants have not

disputed this finding. We therefore conclude that because § 304(m)—in its

text and in the EPA’s application—grants the EPA the authority to promulgate both ELGs and NSPSs, our analysis here applies equally to both.

In light of the above, we need not address industry-intervenors’ suggestion

that the Plaintiffs failed to plead a claim for breach of a non-discretionary

duty under § 306. 

13172 NRDC v. USEPA
sistently used mandatory language with respect to the

promulgation of ELGs. 

[16] Section 402(a)(1) also supports our interpretation. That

section governs the NPDES and states the EPA may issue

NPDES permits if the discharge will meet: (A) “all applicable

requirements under [various other sections] of this title,”

including the section governing effluent limitations, which are

designed according to ELGs and NSPSs; or (B) if “prior to

the taking of necessary implementing actions relating to all

such requirements, such conditions as the Administrator

determines necessary to carry out the provisions of this chapter.” CWA § 402(a)(1). Subsection (B) is explicit that it

applies only “prior to the taking of necessary implementing

actions” relating to the requirements in subsection (A).

(Emphasis added). Thus, § 402(a)(1)(B) sets forth a system

for assessing NPDES permits only until the EPA promulgates

the requirements referenced in § 402(a)(1)(A) and does not

contemplate that the EPA might never promulgate the requirements referenced in § 402(a)(1)(A). Rather, § 402(a)(1) supports that Congress assumed that “requirements,” including

effluent limitations, which are guided by ELGs and NSPSs,

would be in place after an interim period. 

While we conclude that the CWA is unambiguous that the

EPA must promulgate ELGs and NSPSs for point-source categories listed in a plan pursuant to § 304(m), were we to find

the statute ambiguous and consider whether the EPA’s interpretation was based on a “permissible construction,” we

would reach the same conclusion. 

The addition of § 304(m) to the CWA stemmed from Congress’ frustration with “the slow pace in which these regulations [were] promulgated.” S. Rep. No. 99-50, at 3 (1985)

(“Although the EPA continues to move forward with developing guidelines for the installation of cleanup technology for

. . . dischargers, the slow pace in which these regulations are

promulgated continues to be frustrating. Of the 29 industrial

NRDC v. USEPA 13173
categories established in 1977 for which guidelines were

required to be promulgated 5 still remain to be completed.”).

Congress’s desire to speed up the promulgation of ELGs and

NSPSs would be completely frustrated if § 304 were viewed

merely as a planning mechanism and did not require the

actual promulgation of ELGs and NSPSs. The Senate Report

quoted confirms that Congress did not view § 304 as a planning mechanism. It states that “[g]uidelines are required for

any category of sources discharging significant amounts of

toxic pollutants. In this use, ‘significant amounts’ does not

require the [EPA] to make any determination of environmental harm; any non-trivial discharges from sources in a category must lead to effluent guidelines.” Id. at 24-25 (emphasis

added). 

Our recent opinion in OCEF does not contradict our interpretation. In OCEF, we held that the EPA’s decisions on

“whether to revise the effluent guidelines and whether to

incorporate technology-based criteria in its periodic review of

the guidelines” were discretionary duties. 527 F.3d at 845.

The duty that the OCEF court found to be discretionary was

entirely distinct from the duty at issue in this case. This case

addresses whether there is a mandatory duty to promulgate

ELGs and NSPSs once a point-source category has been identified in a plan under § 304(m). In contrast, the OCEF court

considered the EPA’s duty to consider technology-based

criteria when it was performing its mandatory duty to review

effluent limitations and ELGs. Id. at 849. Though the OCEF

court found the statute to be ambiguous on that point and did

not conclude that the duty to consider technology-based

criteria was mandatory, the court acknowledged that “when

Congress specifies an obligation and uses the word ‘shall,’

this denomination usually connotes a mandatory command.”

Id. at 847 (citing Alabama v. Bozeman, 533 U.S. at 153). And

later, in discussing the EPA’s duties in connection with the

identification of new polluting sources, the OCEF court

acknowledged that if a source has any non-trivial discharge of

toxic pollutants, the EPA does not make a determination of

13174 NRDC v. USEPA
environmental harm but “must” promulgate effluent guidelines. Id. at 852 (citation omitted) (emphasis added). 

Despite our conclusion that the EPA had a nondiscretionary duty to promulgate ELGs and NSPSs in this

case, we also must consider whether the EPA properly

avoided this duty when it removed the construction industry

from its plans published pursuant to § 304(m). Nothing in the

CWA expressly grants the EPA the authority to remove a

point-source category from a § 304(m) plan. Cf. 42 U.S.C.

§ 7412(c)(9) (Clean Air Act provision expressly granting the

EPA the authority to delist source categories). Moreover, we

do not find the EPA’s view, that it is allowed under the statute

to unilaterally delist a point-source category already identified

in a § 304(m) plan with no process, to be a permissible construction of the statute. See Chevron, 467 U.S. at 843.10

First, § 304(m)(1)(c) is clear that once a category is identified under subsection B, the promulgation of guidelines “shall

be no later than . . . 3 years after the publication of the plan.”

This timeline effectuates Congress’ stated desire to force the

EPA to more rapidly promulgate ELGs and NSPSs. If the

EPA had the authority to delist point-source categories at its

whim, however, this deadline would be rendered meaningless

as the EPA could delist any point-source category to avoid the

deadline set forth in § 304(m)(1)(c). 

[17] Second, § 304(m)(2) provides that “[t]he Administrator shall provide for public review and comment on the plan

10We need not reach the question of whether the EPA could avoid promulgating ELGs and NSPSs for a point-source category that had, at one

time, been included in a § 304(m) plan if the EPA formally amended the

§ 304(m) plan that triggered the duty to promulgate or undertook some

other formal process to delist the point-source category. Here, the EPA has

not established that it engaged in any such process but has submitted its

statements in its 2004 and 2006 § 304(m) plans that it was “not identifying” the construction industry, which had previously been identified in

earlier plans, as a point-source category. 

NRDC v. USEPA 13175
prior to final publication.” Thus, Congress determined that by

the time a point-source category is listed in a § 304(m) plan,

the EPA must have already engaged in a review process to

consider whether the category should be listed. It follows logically that the three-year delay provided for in § 304(m)(1)(c)

is not to decide whether to list a point-source category, but to

allow the EPA to consider what the substance of the ELGs

and NSPSs should be. 

CONCLUSION

For these reasons, we AFFIRM the district court. 

13176 NRDC v. USEPA