TMDLs in Court

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The Clean Water Rule has suffered a few blows; last week the Trump administration suspended it, pending a planned issue of its own version sometime this year, and a couple of weeks before that the Supreme Court ruled that only federal district courts, not appeals courts, should have jurisdiction in challenges to the rule. While all that has been going on, another court decision has quietly taken place, dealing another blow to groups hoping to expand stormwater permitting to include some dischargers that aren’t currently covered.

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As this article reports, a number of environmental groups have filed lawsuits aimed at bringing currently unregulated, privately owned sites under the jurisdiction of the National Pollutant Discharge Elimination System (NPDES). Several groups have sued EPA to try to force the agency to use its “residual designation authority” to make certain sites, including some commercial and industrial facilities, universities, and hospitals, obtain NPDES permits.

One way they’ve tried to justify those permits is by arguing that when EPA approves a total maximum daily load (TMDL), the source or sources of the pollutants in question—in this case, the privately owned sites or facilities—should also be required to obtain NPDES permits.

However, in Conservation Law Foundation v. Pruitt, the First Circuit Court of Appeals ruled that in fact EPA’s approval of a TMDL doesn’t necessarily equate to the need for the source to be regulated. “TMDLs address discharges at the abstract level of source type,” the court wrote. “A TMDL could certainly provide information that would make a decision to require individual permits quite easy…. But that is simply not the same as saying that the approval of the TMDL must be deemed to be such a decision.”

Does this decision affect your program in any way—whether you’re involved in developing TMDLs or whether you manage stormwater for a private entity or facility without its own NPDES permit? Share your thoughts in the comments. SW_bug_web

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  1. Whether or not a permit is required based on issuance of a TMDL would depend on if a Waste Load Allocation (WLA) had been assigned (because the facility had a reasonable probability to dishcharge the pollutant of concern and addressed by the TMDL) the discharge emanating from the facility/and or it’s site in the case of stormwater and must be discharging to the impaired surface water or tributary to it in order for a NPDES permit to be potentially
    required. A decision made by the State or Federal (EPA) permitting authority. The State if granted primacy unless located on Indian Lands

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