Interesting New NDPES Permit Review Case

The case below, which was handed down yesterday by the District of Minnesota, has a number of very interesting issues, including allegations of undue influence during the prior administration, EPA's discretionary duty to review permits and it's duty to assess impacts to downstream water quality. It's worth a read.

Fond Du Lac Band of the Lake Superior Chippewa v. EPA, 2021 WL 603754 (D. Mn. 2021) (on motion to dismiss in case involving challenges to 402 and 404 permits issued to new mine, held that plaintiffs may not challenge EPA’s decision to not challenge the state-issued NPDES permit because that agency decision is discretionary; under 401(a)(2), EPA is required to notify the downstream state or tribe if the discharge may affect downstream water quality and EPA is required to determine whether the discharge may affect downstream water quality; EPA did not have the discretion to decline to make a “may effect” determination under 401(a)(2) and that decision is reviewable under the APA; plaintiff pled sufficient facts to support its claims the complaint; EPA violated APA § 555(e) by not responding to plaintiff’s request for a notice and hearing under 401(a)(2))

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