ELR Citation: ELR 20055
No(s). 05-209 (D.D.C. Feb 26, 2007)

A district court dismissed an environmental group's lawsuit challenging the U.S. Environmental Protection Agency's (EPA's) handling of the national pollutant discharge elimination system (NPDES) permitting process for a pulp and paper mill in Florida. Although the state possesses the primary authority to issue NPDES permits, EPA retains oversight of the permitting process. The group filed the instant action under the Clean Water Act's (CWA's) citizen suit provision seeking to force EPA to assume jurisdiction over the permitting process instead of leaving it to the state. The CWA citizen suit provision, however, provides a limited waiver of sovereign immunity for claims "where there is alleged a failure of the [EPA] Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator." Because the CWA, EPA's regulations, and Florida's regulations do no create any tangible duty or proscribe any act that EPA must perform in this situation, the group's claim is barred by sovereign immunity.