ELR Citation: ELR 21582
No(s). CIV 93-234 TUC ACM (D. Ariz. Apr 27, 1995)

The court holds that the Federal Water Pollution Control Act (FWPCA) §303(c)(4)'s requirement that the U.S. Environmental Protection Agency (EPA) "promptly" prepare and publish proposed water quality regulations for states is not a nondiscretionary duty enforceable by citizen suit. The court first notes that a clear-cut non-discretionary duty of timeliness is imposed on an agency when a statute categorically requires that all specified action be taken by a date-certain deadline, or if such a deadline is readily ascertainable by reference to some fixed date or event. Section 303(c)(4), however, requires that EPA act "promptly." This is not a categorical mandate from Congress that deprives EPA of all discretion over the timing for preparing and publishing proposed water quality regulations for Arizona. The court holds, therefore, that allowing an environmental group to go forward under the FWPCA citizen suit provisions would upset the delicate balance Congress struck to permit citizen enforcement only of clear-cut agency violations and defaults.

Counsel for Plaintiffs
David S. Baron
Tucson AZ

Counsel for Defendants
Karen Egbert
Washington DC