United States Court of Appeals 

For the First Circuit 

No. 17-1166 

CONSERVATION LAW FOUNDATION, INC., 

Plaintiff, Appellant, 

v. 

SCOTT PRUITT, Administrator of the United States Environmental 

Protection Agency; DEBORAH SZARO, in her capacity as Acting 

Regional Administrator, United States Environmental Protection 

Agency, Region 1, 

Defendants, Appellees. 

No. 17-1354 

CONSERVATION LAW FOUNDATION, INC.; 

CHARLES RIVER WATERSHED ASSOCIATION, INC., 

Plaintiffs, Appellants, 

v. 

U.S. ENVIRONMENTAL PROTECTION AGENCY, Scott Pruitt, 

Administrator; U.S. ENVIRONMENTAL PROTECTION AGENCY, REGION I, 

Deborah Szaro, Acting Regional Administrator, 

Defendants, Appellees. 

APPEALS FROM THE UNITED STATES DISTRICT COURTS 

FOR THE DISTRICT OF RHODE ISLAND AND 

THE DISTRICT OF MASSACHUSETTS 

[Hon. Mary M. Lisi, U.S. District Judge] 

[Hon. Richard G. Stearns, U.S. District Judge] 
Before 

Torruella, Lipez, and Kayatta, 

Circuit Judges. 

Christopher Kilian, with whom John Maxwell Greene and 

Conservation Law Foundation were on brief, for appellants. 

David Gunter, Environment and Natural Resources Division, 

U.S. Department of Justice, with whom Jeffrey H. Wood, Acting 

Assistant Attorney General, and Eric Grant, Deputy Assistant 

Attorney General, were on brief, for appellees. 

January 24, 2018 
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KAYATTA, Circuit Judge. In this consolidated appeal, 

Conservation Law Foundation ("CLF") and Charles River Watershed 

Association ("CRWA") (collectively "plaintiffs") challenge the 

dismissal of their claims against the Environmental Protection 

Agency. Plaintiffs' two suits focus on 40 C.F.R. § 124.52(b), a 

regulation promulgated under the Clean Water Act. This regulation 

calls for the EPA to send a written notice to a discharger of storm 

water whenever the EPA "decides that an individual permit is 

required" for the discharge. The notice informs the discharger of 

the EPA's decision and the reasons for it, and includes a permit 

application. The principal question before us is whether the EPA's 

role in developing and approving several so-called TMDLs in 

Massachusetts and Rhode Island constituted a decision that 

required the EPA to send section 124.52(b) notices. For the 

following reasons, we find that it did not and we therefore affirm 

the dismissal of both suits. 

I.

A. 

The purpose of the Clean Water Act is to "restore and 

maintain the chemical, physical, and biological integrity of the 

Nation's waters." 33 U.S.C. § 1251(a). To accomplish this goal, 

the Act and its implementing regulations establish various tools 

aimed at bringing waters of the United States into compliance with 

regulatory standards. Three such tools are relevant to this case: 
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(1) the Act's permitting scheme, specifically its storm water 

permitting requirements; (2) the development and approval of total 

maximum daily loads ("TMDLs"); and (3) what is commonly called the 

Act's citizen-suit provision. 

1.

The basic requirement of the Act's permitting system is 

that all discharges from a "point source," defined as "any 

discernible, confined and discrete conveyance," 33 U.S.C. 

§ 1362(14), must obtain a permit. 33 U.S.C. § 1342(a). This 

permitting program is called the National Pollutant Discharge 

Elimination System ("NPDES"). See generally 33 U.S.C. § 1342. 

Certain states, such as Rhode Island, have been authorized by the 

EPA to administer their own state-level versions of the permitting 

system. See 33 U.S.C. § 1342(b). 

In 1987, Congress amended the Act to address the problem 

of polluted storm water. The amendment established that two types 

of storm water discharges, not relevant here, require NPDES 

permits. 33 U.S.C. § 1342(p). In addition, Congress authorized 

the EPA to determine that certain other storm water discharges 

also require permits. 33 U.S.C. § 1342(p)(2)(E). This additional 

power is known as the EPA's "residual designation authority."1 See 

 1 Congress's initial grant of residual designation authority 

applied during the implementation period of the storm water 

permitting rules. During that period, storm water permits were 

generally not required unless an exception applied; one such 
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Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832, 873–78 (9th Cir. 

2003). Through regulation, the EPA has clarified that authority 

as follows: 

On and after October 1, 1994, for discharges 

composed entirely of storm water, that are not 

[otherwise required] to obtain a permit, 

operators shall be required to obtain a NPDES 

permit only if: 

. . . 

(C) The Director, or in States with approved 

NPDES programs either the Director or the EPA 

Regional Administrator, 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 

(D) The Director, or in States with approved 

NPDES programs either the Director or the EPA 

Regional Administrator, 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. 

40 C.F.R. § 122.26(a)(9)(i)(C)–(D). Additional regulations 

implementing the permitting requirements provide: 

(a) Various sections of part 122, subpart B 

allow the Director to determine, on a caseby-case basis, that certain . . . storm water 

 

exception was the exercise of residual designation authority. 33 

U.S.C. § 1342(p)(2)(E). Pursuant to a statutory directive, the 

EPA subsequently promulgated implementing regulations that 

preserved the agency's residual designation authority. 40 C.F.R. 

§ 122.26(a)(9)(i)(C)–(D); see also NPDES -- Regulations for 

Revision of the Water Pollution Control Program Addressing Storm 

Water Discharges, 64 Fed. Reg. 68,722, 68,781 (Dec. 8, 1999) ("The 

NPDES permitting authority's existing designation authority . . . 

[is] being retained."). These regulations are the basis for 

plaintiffs' suits. 
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discharges (§ 122.26) . . . that do not 

generally require an individual permit may be 

required to obtain an individual permit 

because of their contributions to water 

pollution. 

(b) Whenever the Regional Administrator 

decides that an individual permit is required 

under this section, except as provided in 

paragraph (c) of this section, the Regional 

Administrator shall notify the discharger in 

writing of that decision and the reasons for 

it, and shall send an application form with 

the notice. The discharger must apply for a 

permit under § 122.21 within 60 days of 

notice, unless permission for a later date is 

granted by the Regional Administrator. The 

question whether the designation was proper 

will remain open for consideration during the 

public comment period under § 124.11 and in 

any subsequent hearing. 

40 C.F.R. § 124.52(a)–(b). 

2.

In a separate section of the Act, Congress set forth the 

second regulatory tool relevant to this case. States are required 

to establish water quality standards and to identify waters that 

fail to meet those standards. 33 U.S.C. §§ 1313(a), 1313(d)(1)(A)–

(B). In order to bring impaired waters into compliance, states 

are further directed to develop "total maximum daily loads," which 

represent the maximum amount of a particular pollutant that can be 

released into a waterway while still maintaining water quality 

standards. 33 U.S.C. § 1313(d)(1)(C). TMDLs are further 

subdivided into wasteload allocations and load allocations. 40 

C.F.R. § 130.2(i). A wasteload allocation is "[t]he portion of a 
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receiving water's loading capacity that is allocated to one of its 

existing or future point sources of pollution." 40 C.F.R. 

§ 130.2(h). A load allocation is "[t]he portion of a receiving 

water's loading capacity that is attributed either to one of its 

existing or future nonpoint sources of pollution or to natural 

background sources." 40 C.F.R. § 130.2(g). The sum of all 

wasteload allocations and load allocations for a particular water 

make up the TMDL, see 40 C.F.R. § 130.2(i), which when completed 

is submitted to the EPA for approval. See 33 U.S.C. § 1313(d)(2). 

3.

In order to increase the likelihood that these and other 

requirements are implemented and enforced, the Act contains a 

citizen-suit provision that provides, in relevant part: 

[A]ny citizen may commence a civil action on 

his own behalf -- 

. . . 

(2) 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. 

33 U.S.C. § 1365(a). 

As set forth more fully below, plaintiffs' suits attempt 

to pull together these three components of the Clean Water Act -- 

the EPA's residual designation authority for storm water 

permitting, the development and approval of TMDLs, and the citizensuit provision -- to force the EPA to require certain third-party 
- 8 - 

storm water dischargers in Rhode Island and Massachusetts to secure 

NPDES permits. 

B.

We turn now to the facts and procedural history leading 

to this appeal. From 2005 to 2011, the Rhode Island Department of 

Environmental Management developed a number of TMDLs at issue in 

this case, including TMDLs for Mashapaug Pond and portions of the 

Sakonnet River. In 2007, the Massachusetts Department of 

Environmental Protection ("MassDEP") developed two TMDLs for the 

Charles River and in 2011, developed a third TMDL for the river. 

The EPA approved all of these TMDLs, finding that they met the 

requirements of the Act and its implementing regulations. Most of 

the TMDLs were approved by the end of 2007, with two approved in 

2011. 

Years later, in April 2015, CLF sued the EPA in the 

District of Rhode Island. CLF, along with CRWA, also sued the EPA 

in the District of Massachusetts ten months later. Both suits 

sought a court order requiring the EPA to notify commercial and 

industrial dischargers of storm water within the watersheds 

covered by the TMDLs that they must obtain discharge permits.2 The 

 2 Plaintiffs' complaint in the district of Massachusetts also 

requested the same notice for high-density residential 

dischargers. Plaintiffs have maintained on appeal that the EPA's 

duty extends to high-density residential sources, but presumably 

only within the Charles River watershed, since there was no mention 

of these dischargers in the Rhode Island case. 
- 9 - 

two district courts determined, for slightly different reasons, 

that the EPA's challenged conduct (not sending written notices to 

storm water dischargers) did not constitute a "failure . . . to 

perform any act or duty . . . which is not discretionary." 33 

U.S.C. § 1365(a)(2). The courts thus found that the suits had no 

toehold in the Act's limited authorization of citizen suits against 

the EPA, which is otherwise immune as an agency of the sovereign. 

They therefore dismissed the cases for want of jurisdiction. See 

Conservation Law Found., Inc. v. EPA, 223 F. Supp. 3d 124, 129–34 

(D. Mass. 2017); Conservation Law Found. v. EPA, No. 15-165-ML, 

2016 WL 7217628, at *9 (D.R.I. Dec. 13, 2016). Plaintiffs appealed 

and their suits were consolidated for review in this court. 

II. 

To decide whether these suits against the federal 

government may proceed under the citizen-suit provision of the 

Act, we need determine whether plaintiffs have "alleged a failure 

of the Administrator" to perform a nondiscretionary duty. 33 

U.S.C. § 1365(a)(2). Because section 1365(a)(2) is a waiver of 

sovereign immunity, see U.S. Dep't of Energy v. Ohio, 503 U.S. 

607, 615 (1992), it is to be "construed strictly" in favor of the 

EPA, id. at 615 (quoting McMahon v. United States, 342 U.S. 25, 27 

(1951)); see also Massachusetts v. U.S. Veterans Admin., 541 F.2d 

119, 123 (1st Cir. 1976). Our standard of review, in turn, is de 

novo. See Esso Standard Oil Co. (Puerto Rico) v. Rodríguez-Pérez, 
- 10 - 

455 F.3d 1, 4 (1st Cir. 2006); Paul Revere Life Ins. Co. v. 

Bromberg, 382 F.3d 33, 34 (1st Cir. 2004). 

Plaintiffs' position can be summarized in three steps. 

According to plaintiffs, the EPA -- in helping to develop and in 

approving the TMDLs at issue -- made a determination that "storm 

water controls are needed" for discharges identified in the TMDLs, 

see 40 C.F.R. § 122.26(a)(9)(i)(C), and/or that "the [storm water] 

discharge[] or category of discharges" identified in the TMDLs 

"contributes to a violation of a water quality standard," see 40 

C.F.R. § 122.26(a)(9)(i)(D). This determination, say plaintiffs, 

triggered a duty by the EPA to "notify the discharger in writing" 

of its decision that the discharger is required to obtain a permit 

and to "send an application form with the notice." 40 C.F.R. 

§ 124.52(b). Finally, plaintiffs contend that the EPA's duty to 

notify storm water dischargers is nondiscretionary and therefore 

is properly the subject of a Clean Water Act citizen suit.

The EPA responds with an array of arguments. It contends 

that duties established by EPA regulations rather than statutory 

mandates may not be enforced in a citizen suit; that a duty without 

a deadline is not mandatory; and that its approval of the TMDLs is 

not a decision that an individual permit is required within the 

meaning of 40 C.F.R. § 124.52(b).3 Because we find this last 

 3 The EPA focuses primarily in its briefing, as it did in oral 

argument, on 33 U.S.C. § 1342(p), the statutory provision 
- 11 - 

argument to be persuasive, we need not consider the EPA's other 

arguments. 

Our reasoning begins with the TMDLs themselves. TMDLs 

are developed by state agencies and are incorporated into the 

state's planning process for overall water quality. See 33 U.S.C. 

§§ 1313(d)(2), (e)(1). Plaintiffs fairly claim that the EPA 

sometimes gets involved in the TMDL development process (prior to 

the approval stage) and, indeed, that the EPA did so here with 

respect to some of the TMDLs at issue. But plaintiffs offer no 

reasoned basis for concluding that any such involvement expands 

the scope of the express determination the EPA makes in approving 

a TMDL. And that express determination is limited to confirming 

that the TMDLs "meet the requirements of § 303(d) of the Clean 

Water Act (CWA), and of EPA's implementing regulations." 

More tellingly, even were one to construe the EPA's 

involvement in preparing and then approving a TMDL as an adoption 

by the EPA of the "findings" contained in the TMDL, those findings 

do not identify specific dischargers from whom individual permits 

are required. The TMDL approval documents contained in the record 

illustrate this point. Each approval follows a repetitive 

structure whereby the EPA recites a particular statutory or 

 

governing residual designation authority. However, plaintiffs' 

claims rely on the applicable regulations, which the EPA also 

addresses, albeit briefly. We therefore focus on the regulations. 
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regulatory requirement for the TMDL, summarizes the state's 

research related to that requirement, and includes a brief 

"assessment" of the state's analysis. The Lower Charles River 

TMDL approval illustrates the length and level of specificity of 

the EPA's assessments. Regarding the requirement that the TMDL 

include wasteload allocations "which identify the portion of the 

loading capacity allocated to existing and future point sources," 

the EPA observed that "MassDEP has determined there is currently 

insufficient information and detail available to confidently 

apportion the total phosphorous loading to individual sources." 

It also noted that there was insufficient data "to separate out 

the parcels that generate storm water that are not subject to NPDES 

permits." In its related assessment, the EPA concluded that "it 

[was] acceptable to group all NPDES eligible storm water discharges 

into aggregate wasteload allocations" and that "it [was] also 

acceptable to include both discharges subject to NPDES as well as 

nonpoint source runoff in th[e] aggregate wasteload category." 

Certainly this language -- which sanctions not only the aggregation 

of all storm water point sources within the wasteload allocation 

but also their inclusion along with sources that are entirely 

unregulated under the Act -- falls short of qualifying as a 

determination that any particular discharges must be permitted, 

either because storm water controls are needed for the discharges, 

see 40 C.F.R. § 122.26(a)(9)(i)(C), or because they contribute to 
- 13 - 

a violation of water quality standards, see 40 C.F.R. 

§ 122.26(a)(9)(i)(D). 

Indeed, the gap between the TMDL approvals in this case 

and a determination that a storm water discharger requires a permit 

appears even wider when we consider precisely what plaintiffs seek. 

Plaintiffs ask us to conclude that the EPA must send notice and 

application forms to specific, "identified" dischargers, even 

though the TMDLs do not identify who those dischargers are. To 

varying degrees of specificity, the TMDLs in the record describe 

the geographic area from which storm water discharges originate 

and the types of enterprises (e.g., commercial, industrial, 

residential, etc.) that generate those discharges. Importantly, 

though, the TMDLs do not identify by name or address any individual 

dischargers, nor do they attempt to designate which specific 

properties within the studied areas actually discharge storm 

water. In practical terms, they do not differentiate, for example, 

an organic farm with a cistern from a large house with a long, 

impervious driveway. Plaintiffs nevertheless ask us to rule that 

the EPA must send a written notice under section 124.52(b) to every 

landowner and business in the area covered by each TMDL.4

 4 Plaintiffs formally limit their request to industrial, 

commercial, and certain residential dischargers. But, as 

plaintiffs' counsel conceded at oral argument, the logic of their 

argument extends to every property owner in a given watershed. 
- 14 - 

At oral argument, plaintiffs offered two reasons why the 

lack of specificity in the TMDLs is not fatal to their argument. 

First, section 122.26(a)(9)(i)(D) allows the EPA to determine that 

a "category of discharges within a geographic area[] contributes 

to a violation of a water quality standard," and, plaintiffs argue, 

the TMDLs at the very least do that. Second, even assuming that 

the EPA must identify particular dischargers, it can easily do so 

here based on information already within its possession. All the 

EPA needs to do, plaintiffs seem to suggest, is take one of the 

maps provided in the TMDLs and collate it with other data to 

determine the names and addresses of the landowners and businesses 

in the watershed. 

These arguments do not get the horseshoe close to the 

stake. Although section 122.26 refers to categories of 

dischargers, section 124.52 (the provision containing the duty 

plaintiffs seek to enforce) makes clear that it is triggered by a 

determination made on a "case-by-case basis." 40 C.F.R. 

§ 124.52(a). Simply put, there is nothing in the TMDLs themselves 

-- and hence nothing in the EPA's approval of the TMDLs -- that 

even suggests an undertaking to make individualized 

determinations. Rather, the TMDLs address discharges at the 

abstract level of source type. A TMDL could certainly provide 

information that would make a decision to require individual 

permits quite easy; this appears to be what is contemplated by the 
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statement in section 122.26 that a determination that storm water 

controls are needed can be "based on" wasteload allocations in 

TMDLs. See 40 C.F.R. § 122.26(a)(9)(i)(C). But that is simply 

not the same as saying that the approval of the TMDL must be deemed 

to be such a decision. 

Moreover, the duty plaintiffs are asking us to enforce 

is triggered only when the EPA decides that an individual permit 

is required. 40 C.F.R. § 124.52(b). Even if the TMDLs (and their 

approvals) did constitute a determination that storm water 

controls are needed or that storm water discharges are contributing 

to a water quality standard violation, thus satisfying section 

122.26, all that determination requires is that the 

"operator[] . . . obtain a NPDES permit." 40 C.F.R. 

§ 122.26(a)(9)(i).5 This could take the form of either a general 

permit (covering multiple dischargers), see 40 C.F.R. § 122.28(a), 

or an individual permit -- but only the latter would trigger 

section 124.52. See 40 C.F.R. § 124.52(b) (requiring notice 

"[w]henever the Regional Administrator decides that an individual 

permit is required") (emphasis added). Plaintiffs contend that 

because the EPA has not adopted general permits for the discharges 

at issue in this case, "the only means for the sources of these 

discharges to obtain a permit is to apply for individual permits." 

 5 At no point have plaintiffs identified the supposed 

"operators." 
- 16 - 

But plaintiffs do not explain why the EPA could not choose, even 

at this stage, to require general permits, as they have for various 

municipal storm sewer systems in Rhode Island and Massachusetts. 

This alone is fatal to plaintiffs' position because if the EPA 

could require a general permit as opposed to an individual one, 

then one cannot conclude that it has a nondiscretionary duty to 

inform dischargers that they must secure the latter. 

Practical consequences and past practice in this highly 

regulated arena also counsel against treating the approval of TMDLs 

as drive-by permitting determinations by the EPA. As noted, 

plaintiffs' argument, functionally, would require the EPA to 

notify all property owners in a watershed covered by a TMDL that 

they must secure a permit because of their contribution to polluted 

storm water. This mandate would seem to extend not only to every 

storm water-related TMDL that the EPA approves moving forward, but 

also to all such TMDLs already approved. The EPA estimates that 

it has approved or established more than 70,000 TMDLs since the 

passage of the Clean Water Act, many of which involve storm water 

discharges. Under plaintiffs' view of the case, in 1990, by 

enacting the regulations cited in this opinion, the EPA committed 

itself to notifying a very large number of companies and persons 

(perhaps as many as tens of millions) as it approved TMDLs covering 

storm water discharges across the country. Yet the record contains 

no suggestion whatsoever that either the EPA or the states or the 
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regulated entities -- or plaintiffs for that matter -- viewed the 

storm water regulations as having such a far-reaching 

ramification. Cf. Michigan v. EPA, 135 S. Ct. 2699, 2708 (2015) 

(weighing the EPA's "established administrative practice" in 

determining the reasonableness of the agency's interpretation of 

the Clean Air Act); Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 

2427, 2448 (2014) (emphasizing that "[w]e are not talking about 

extending EPA jurisdiction over millions of previously unregulated 

entities"). 

The EPA has historically engaged in a practice of issuing 

residual designations in response to citizen petitions, as it did 

for Long Creek in Maine. See United States Envtl. Protection 

Agency, Preliminary Residual Designation Pursuant to Clean Water 

Act Region I 1, https://www.epa.gov/sites/production/files/2015-

11/documents/longcreekrd.pdf; see also 40 C.F.R. § 122.26(f) ("Any 

person may petition the Director to require a NPDES permit for a 

discharge which is composed entirely of storm water which 

contributes to a violation of a water quality standard or is a 

significant contributor of pollutants to waters of the United 

States."). These designations are formal documents containing 

independent analyses by the EPA and, unlike the TMDL approval 

documents, identify with particularity the dischargers or 

categories thereof that are required to secure permits. See United 

States Envtl. Protection Agency, Preliminary Residual Designation 
- 18 - 

Pursuant to Clean Water Act Region I 1, 

https://www.epa.gov/sites/production/files/2015-

11/documents/longcreekrd.pdf. This practice aligns with EPA's 

position here that section 122.26 requires a "separate, express 

determination" by the agency. Plaintiffs have provided no reason 

why they could not, pursuant to regulation, petition the EPA for 

such a designation. Instead, they ask us to find that in approving 

state-developed TMDLs, the EPA has implicitly done what it normally 

does through an entirely different process. It has been said that 

Congress does not hide elephants in mouseholes. See Whitman v. 

American Trucking Ass'ns, 531 U.S. 457, 468 (2001). Here, we think 

it even less likely that the EPA hid a herd of elephants in a 

mousehole, much less a herd that remained unnoticed for several 

decades. 

Ultimately, we need not conclude that the EPA's reading 

of its own regulations is the best reading. Rather, we follow 

that reading so long as it is not "plainly erroneous or 

inconsistent with the regulation[s]." Auer v. Robbins, 519 U.S. 

452, 461 (1997) (quoting Robertson v. Methow Valley Citizens 

Council, 490 U.S. 332, 359 (1989)). And the fact that the EPA's 

reading accords with its longstanding practice is yet another 

reason to apply such a modicum of deference. See Decker v. Nw. 

Envtl. Def. Ctr., 568 U.S. 597, 614 (2013) ("There is another 

reason to accord Auer deference to the EPA's interpretation: there 
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is no indication that its current view is a change from prior 

practice or a post hoc justification in response to litigation."). 

For the foregoing reasons, we see no good reason to overbear that 

deference. We therefore conclude that the EPA's approval of the 

TMDLs was not a decision that an individual permit was required, 

that it therefore did not trigger the notice requirement, and that, 

consequently, the complaints allege no failure by the EPA to 

perform a nondiscretionary duty. 

III.

For the foregoing reasons, we affirm the dismissal of 

both cases comprising this consolidated appeal.