According to the Fifth Circuit’s decision in Gulf Restoration Network v. McCarthy the U.S. Environmental Protection Agency (EPA) may decline to make a necessity determination under Section 1313(c)(4)(B) of the Clean Water Act (CWA) if the EPA “reasonably explains” the decision not to make a decision. 783 F.3d 227 (5th Cir. 2015). That reasonable explanation must be based on the language in the statute to be a legally sufficient explanation.
This determination was overturned on appeal to the Fifth Circuit, which vacated and remanded this issue to the district court. Gulf Restoration Network v. McCarthy, 783 F.3d 227 (5th Cir. 2015). The Fifth Circuit also instructed that the scope of review on remand was to be very narrow, focused only on whether EPA’s denial of the petition was legally sufficient.District Court on Remand Agrees With State Primacy on Water Quality Judge Zainey’s fifteen page opinion issued last week, available here, concluded that EPA’s denial of the petition was sufficiently grounded in the CWA, particularly given that Section 303 explicitly provides for shared responsibilities among EPA and the states, with states having primacy over water quality within their borders.