ELR Citation: ELR 20152
No(s). 85-0906 (D.N.J. Aug 27, 1985)

The court holds that it has subject matter jurisdiction under the Federal Water Pollution Control Act (FWPCA) citizen suit provision over a challenge to an Environmental Protection Agency (EPA) refusal to release sewage construction grant funds, and that plaintiff must obtain state priority certification of its sewage collection project for the current fiscal year. After identifying those of plaintiff's claims that are suitable for declaratory relief, the court rules that FWPCA §1365 withdraws Tucker Act jurisdiction when the claim is based on EPA's failure to perform nondiscretionary acts. The relief plaintiff seeks is not a money payment; therefore, the Claims Court does not have exclusive jurisdiction under the Tucker Act. Plaintiff has asked for injunctive relief, albeit in the form of an order requiring EPA to provide a grant for a project certified by the state in 1981, rejected by the EPA Regional Administrator, and later reinstated in an administrative appeal. The court interprets plaintiff's claim as a request that EPA determine that current fiscal year priority certification by the state is not required under the FWPCA, since the Regional Administrator has refused to release funds on the grounds that the state has not certified plaintiff's project on its 1985 priority list. The court construes plaintiff's complaint, which names only the Regional Administrator, as stating a cause of action against the EPA Administrator, making the FWPCA citizen suit provision applicable. The court distinguishes cases cited by defendant for the proposition that the Claims Court has exclusive jurisdiction, as one did not consider whether the FWPCA citizen suit provision withdrew the presumptively established Tucker Act jurisdiction and the other involved EPA's failure to perform discretionary duties. Two other cases holding that the Claims Court has exclusive jurisdiction over certain construction grant issues are similarly distinguishable. The court rules that the Administrator has a nondiscretionary duty under the FWPCA to determine whether current certification is required in all cases. The court holds that the FWPCA does require current certification. The FWPCA does not expressly require current certification, but supplementary grants, which merely increase EPA's share of the cost of previously approved projects, are to be awarded without regard to the year in which the original authorization for the project was made. EPA regulations state that current priority listing is required and suggest that priority state lists are controlling for only one year. Moreover, the statute's funding structure presupposes annual certification.

Counsel for Plaintiff
Albert J. Slap
Slap, Williams & Cuker
Suite 960, One Franklin Plaza, Philadelphia PA 19102
(215) 557-0099

Counsel for Defendant
Mary Gibbons Whipple, Ass't U.S. Attorney
402 E. State St., Rm. 265, Trenton NJ 08608
(609) 989-2190

Ann C. Hurley
Environmental Defense Section
Department of Justice, Washington DC 20530
(202) 633-2000