ELR Citation: ELR 20383
No(s). 98-979-A (E.D. Va. Dec 18, 1998)

The court grants in part and denies in part the U.S. Environmental Protection Agency's (EPA's) motion to dismiss environmental groups' claims that the Agency failed to perform various mandatory, nondiscretionary Federal Water Pollution Control Act (FWPCA) duties in connection with Virginia water quality standards. The court first holds that the groups lack standing to argue that EPA violated FWPCA §106 by making grants to Virginia absent an adequate state program for monitoring and analyzing water quality. The groups failed to plead facts showing that EPA caused their injury or that the relief they seek would redress their injury.

Next, the court holds that the groups' allegation that EPA violated FWPCA §303(d)(2) when it approved Virginia's allegedly inadequate 1996 §303(d) list of water quality limited segments (WQLS) is not rendered moot by the state's 1998 WQLS submission insofar as the alleged deficiencies were not remedied in 1998. The challenged action here—the submission of a §303(d) list—has too short a life to be fully litigated before its supersession by the next §303(d) list and, therefore, presents an issue capable of repetition, yet evading review. In addition, the alleged deficiencies of the 1996 list have in fact recurred and, therefore, there is a reasonable expectation that they will continue to recur. A more subtle analysis, however, is necessary to determine whether it is reasonable to expect the recurrence of any of the alleged deficiencies that have been remedied in the 1998 §303(d) list. Thus, the court orders the parties to address this matter through further briefing. To the extent that the alleged deficiencies in the 1996 submission have not been rendered moot, the court refuses to dismiss the groups' FWPCA and Administrative Procedure Act (APA) claims. The groups clearly allege that EPA approved the 1996 §303(d) list in direct violation of its own imperatively phrased regulations. Thus, under the APA, the groups properly alleged an abuse of discretion by EPA. The groups' FWPCA claim survives to the extent it is necessary to require EPA to establish WQLS for Virginia within 30 days of disapproving the state's §303(d) list.

The court next denies EPA's motion to dismiss the groups' claim that the Agency failed to establish total maximum daily loads (TMDLs) and total maximum daily thermal loads (TMDTLs) for Virginia's waters. The court rejects EPA's argument that the FWPCA offers no readily ascertainable deadline to establish TMDLs and TMDTLs in the face of inaction by a state. Because the groups' FWPCA claim survives, the court dismisses the groups' alternative APA claim.

The court then dismisses the groups' allegation that EPA failed to review Virginia's continuing planning process "from time to time." The FWPCA clearly leaves the timing of reviews to EPA's discretion. Next, although the court refuses to dismiss the groups' claim that EPA failed to either approve or disapprove the initial continuing planning process, the court further holds that FWPCA §303(e) does not require EPA to disapprove a continuing planning process that does not include various elements enumerated in the statute. The court also holds that it lacks subject matter jurisdiction over the groups' claim that EPA unlawfully approved Virginia's national pollutant discharge elimination system (NPDES) permit program. Jurisdiction over EPA determinations concerning state NPDES permit programs vests exclusively with the Court of Appeals. In addition, the court dismisses the groups' APA claims that EPA failed to approve or disapprove Virginia's initial continuing planning process within the statutorily mandated time period, that EPA unlawfully approved Virginia's NPDES system, that EPA failed to review Virginia's continuing planning process from time to time, and that EPA's failure to disapprove Virginia's 1987 continuing planning process constituted an unlawful delay or withholding of agency action.

The court next orders further briefing on the issue of whether EPA failed to provide notice and an opportunity for comment prior to its approval of Virginia's 1996 §303(d) list. It is not clear from the parties' papers whether such notice and opportunity for comment was provided before EPA partially approved and disapproved the state's 1998 §303(d) list. The court then dismisses the groups' claim that EPA violated the APA's procedural requirements for agency rulemaking when it approved Virginia's continuing planning process. The groups cannot challenge any procedural defects in EPA's approval of the continuing planning process under the APA more than six years after the fact. The court, however, does not dismiss the groups' notice and comment claim regarding EPA's approval of TMDLs or TMDTLs for Virginia. The groups' lack of specific knowledge of individual TMDLs and TMDTLs flows directly from EPA's alleged failure to make proposed TMDLs and TMDTLs public.

Last, the court dismisses the groups' APA claim that EPA failed to comply with the Endangered Species Act (ESA) before reviewing, approving, or promulgating the WQLS, TMDLs, and TMDTLs for Virginia and before approving or reviewing a continuing planning process. Review of these actions is not available under the APA because the ESA expressly provides an adequate remedy for the groups' claims through its citizen suit provision.

Counsel for Plaintiffs
Dale R. Schmidt
Law Offices of Dale R. Schmidt
708 Pendleton St., Alexandria VA 22314
(703) 836-1406

Counsel for Defendants
Sharon L. Parrish, Ass't U.S. Attorney
U.S. Attorney's Office
2100 Jamieson Ave., Alexandria VA 22314
(703) 299-3700