In Puget Soundkeeper Alliance v. EPA, the US District Court for the Western District of Washington held that emails and letters from US EPA staff to the Washington Department of Ecology (Department) describing US EPA staff’s belief that the Department’s fish consumption statistics were not accurate did not rise to the level of a statutory determination that the Department’s fish consumption rate was inadequate requiring US EPA to promulgate a revised standard pursuant to Section 303 of the Clean Water Act (CWA), 33 U.S.C. §1313.

US EPA sent one email and four letters to the Department, explaining that US EPA believed that the Department’s fish consumption rate was too low.  The final letter dated June 21, 2013 provided that if the Department failed to revise the rate “EPA has the authority to amend the NTR human health criteria for Washington.” Relying on this language, environmental groups filed suit contending that US EPA’s communications constituted statutory determinations that the Department’s fish consumption rate was inadequate and that US EPA was under a mandatory duty, pursuant to 33 U.S.C. §1313, to promulgate revised standards.

The District Court disagreed, explaining that it only has jurisdiction if the US EPA Administrator fails to perform a non-discretionary act or duty.  In this regard, the Court held that it lacked jurisdiction because the determinations made in the emails and letters from US EPA staff “were not made by the Administrator.” Nonetheless, the Plaintiffs urged the Court to consider the decision in CORALations v. EPA, where the Court held that a letter written by a US EPA staff-level employee represented the US EPA Administrator because of its wording and tone, which triggered US EPA’s duty to publish revised standards.

However, the District Court in Puget Soundkeeper Alliance held that the case was distinguishable from CORALations in the following ways: (1) it involved a discretionary power to determine whether a new or revised standard is required; (2) the discretionary power at issue had not been delegated to the Regional Administrators; and (3) the tone of the letters indicated that no official determinations were being made. It noted that the “communications explicitly endorse and express support for the state’s ongoing revision process – a fact that is particularly significant against the backdrop of discretion inherent in deciding whether to make a determination under [CWA] §1313(c)(4)(B).” In response to the environmental groups’ argument that US EPA’s position would “’effectively excuse itself from its mandatory obligations to promulgate a standard,’” the Court held that “there is no mandatory obligation until a determination is made, and the EPA’s ability to ‘excuse itself’ is inherent in the discretion to decline to make a determination.”

The decision in Puget Soundkeeper Alliance is an interesting when compared to the decision in Iowa League of Cities v. EPA, where the Eighth Circuit held that letters from US EPA stating that mixing zones and blending were not permissible under the CWA because they constituted promulgations for which US EPA had not properly complied with notice and public comment requirements. The decision in Puget Soundkeeper Alliance provides a layer of complexity for the courts when determining whether informal communications from US EPA, such as emails and letters, set forth policy determinations subject to formal procedural rulemaking requirements.  Such decisions will likely be made on a case-by-case basis, considering both the statutory and regulatory issues as well as the characteristics of the communications themselves.