ELR Citation: ELR 20996
No(s). 89-H-263- (M.D. Ala. Jun 30, 1989)

The court holds that state law, rather than the Federal Water Pollution Control Act (FWPCA), governs issuance of national pollutant discharge elimination system (NPDES) permits under state permit programs. Plaintiffs brought a citizen suit under FWPCA §505, seeking a declaration that state officials are prohibited from issuing NPDES permits, which are less stringent than those required under the FWPCA. The court holds that FWPCA §505 does not authorize citizen suits based on state officials' alleged failure to comply with FWPCA effluent limitations when issuing an NPDES permit. The court also holds that state officials and private entities cannot be sued under FWPCA §509(b) because the FWPCA's jurisdictional grant does not apply if the state administrator is not joined as a party. Finally, the court holds that it cannot exercise subject matter jurisdiction, since FWPCA §510 does not implicitly authorize citizen suits against state officials to block a state's issuance of an NPDES permit. The court notes that the plaintiff has an adequate remedy in state court.

Counsel for Plaintiff
David A. Ludder
Legal Environmental Assistance Foundation
203 N. Gadsden St., Ste. 5, Tallahassee FL 32301
(904) 681-2591

Counsel for Defendants
Olivia H. Jenkins
Alabama Department of Environmental Management
1751 Congressman W.L. Dickinson Dr., Montgomery AL 36130
(205) 271-7700

Fournier J. Gale III, Jarred O. Taylor II
Maynard, Cooper, Frierson & Gale
2400 AmSouth/Harbert Plaza, Birmingham AL 35203
(205) 254-1000