ELR Citation: ELR 20017
No(s). 98-0758 (CKK) (D.D.C. Aug 31, 1999)

The court holds that the District of Columbia's failure to submit any total maximum daily loads (TMDLs) to the U.S. Environmental Protection Agency (EPA) for 18 years triggered EPA's non-discretionary duty under Federal Water Pollution Control Act (FWPCA) §303(d)(2) to approve or disapprove TMDLs for the district. Thecourt first holds that it has jurisdiction over an environmental group's citizen suit even though the FWPCA does not have an enforceable deadline for TMDL submission. The prolonged failure of the district to submit the TMDLs can be deemed constructive submission of a district determination that no TMDLs are necessary, thereby triggering EPA's non-discretionary duty to approve or disapprove the TMDLs for the district and providing the court with subject matter jurisdiction.

The court then holds that the group may maintain an FWPCA §505(a)(2) citizen suit to compel EPA to perform its non-discretionary duty to prescribe a TMDL for a body of water for which the district submitted a TMDL that EPA disapproved. The court, however, holds that EPA's disapproval of the one submitted TMDL does not obligate it to promulgate all of the district's TMDLs. Last, the court holds that the group's Administrative Procedure Act claims against EPA must be dismissed because they are duplicative of the FWPCA citizen suit claims.

Counsel for Plaintiffs
Howard I. Fox
Earth Justice Legal Defense Fund
1625 Massachusetts Ave. NW, Ste. 702, Washington DC 20036
(202) 667-4500

Counsel for Defendants
Scott Jordan
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000