Eleventh Circuit Rejects Environmental Groups’ Effort to Challenge Alabama NPDES Permitting Program Authority

The Alabama Department of Environmental Management can finally breathe a sigh of relief, as the Court of Appeals for the Eleventh Circuit issued an opinion today affirming the U.S. EPA’s January 11, 2017 decision not to commence proceedings to withdraw the State’s NPDES permitting program authority and ending nearly a decade of uncertainty for the agency.

The process began in January 2010, when several environmental groups filed a petition with EPA alleging twenty-six grounds for withdrawal of Alabama’s program authorization.  EPA issued an interim response to the petition in April 2014, dismissing twenty of the grounds but deferring a decision on the remaining six.  The environmental group petitioners appealed EPA’s interim response to the Eleventh Circuit, and the Court dismissed the appeal, stating its jurisdiction to review determinations by EPA regarding a state NPDES program was limited to final agency actions.  On January 11, 2017, EPA issued its final decision on the January 2010 petition, determining the issues raised by the environmental groups did not warrant the initiation of program withdrawal proceedings, which EPA noted: “should be reserved for serious and widespread deficiencies in program implementation.”  The environmental groups again looked to the Eleventh Circuit for relief but were denied it in today’s affirmance of EPA’s decision.  In analyzing a question of first impression, the Court found EPA has “discretion over the decision to withdraw [NPDES program] authority” and “may withdraw authority under certain conditions but it is not compelled to do so.”

The decision closes a big chapter for ADEM, which has carried on its duties as Alabama’s NPDES permitting authority all the while expending a great deal of resources over the years in response to the petition.

The National Pollutant Discharge Elimination System (NPDES) program, created in 1972 by the Federal Clean Water Act, addresses water pollution by regulating point sources that discharge pollutants to jurisdictional waters.  Most states have applied to and received EPA authorization to perform the permitting, enforcement and administrative aspects of the program.  Alabama received such authorization in 1979.

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