          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
            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:


                                     - 3 -
(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


                                             - 4 -
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 case-
          by-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.


                               - 5 -
             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



                                   - 6 -
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 citizen-

suit provision -- to force the EPA to require certain third-party



                                    - 7 -
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.


                                      - 8 -
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,


                                   - 9 -
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


                               - 10 -
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.


                                      - 11 -
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


                                    - 12 -
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.


                                      - 13 -
           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


                                     - 14 -
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."


                                      - 15 -
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


                                 - 16 -
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


                                   - 17 -
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


                                    - 18 -
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.




                                - 19 -
