11th Circuit Backs Broad EPA Discretion On NPDES Withdrawal Decisions

摘要

In a case of first impression, the U.S. Court of Appeals for the 11th Circuit has ruled that EPA has broad discretion to decide whether to revoke a state's delegated Clean Water Act (CWA) discharge permitting authority, even when the state's permit program has not always complied with the water law's requirements. "The EPA's discretion is not unlimited, but neither is it as constrained as Petitioners would suggest. The agency must faithfully administer the CWA and its implementing regulations, but its decision to commence withdrawal proceedings is largely a discretionary one," the 11th Circuit says in its unanimous Sept. 12 decision in Cahaba Riverkeeper v. EPA. The court also finds that the EPA's decision not to commence withdrawal proceedings in the face of specific alleged CWA violations by Alabama was not arbitrary, capricious, or an abuse of discretion, or otherwise not in accordance with the law. Judge Darrin P. Gayles of the U.S. District Court for the Southern District of Florida, who sat by designation on the three-judge panel of the 11th Circuit, wrote the opinion on behalf of himself, Chief Judge Ed Carnes and Judge Elizabeth L.Branch.