ELR Citation: ELR 20214
No(s). 00-16895 (9th Cir. Oct 2, 2001)

The court holds that the U.S. Environmental Protection Agency (EPA) Administrator's failure or refusal to find a Clean Water Act (CWA) violation or to take enforcement action against an Arizona wastewater treatment plant are discretionary decisions that are not subject to review under the CWA. After the treatment plant's national pollutant discharge elimination system permit expired in 1996 and 128 permit violations were reported between 1995 and 2000, an environmental group brought a CWA §505(a)(2) citizen suit against EPA seeking to compel the Agency to initiate an enforcement action. Suits against EPA are barred by sovereign immunity unless there has been a waiver of that immunity. The court first holds that Congress has waived immunity in CWA §505(a)(2) only for suits alleging a failure to perform a non-discretionary duty. The group claims that CWA §309(a)(3) creates a mandatory duty of the EPA Administrator to make enforcement findings when presented with information suggesting a violation. However, CWA §309(a)(3) contains no language suggesting that the Administrator has a duty to make findings. Instead, §309(a)(3) merely states what follows a finding of a violation by the Administrator. The court next holds that the CWA's purpose is to restore and maintain the national waters, and requiring EPA to investigate all complaints, irrespective of their environmental magnitude, could hinder the Administrator's ability to investigate and enforce the most serious violations. The court further holds that although CWA §309(a)(3) states that the Administrator "shall" issue a compliance order or commence a civil action upon finding a violation, the use of the term "shall" does not implicitly impose a mandatory requirement on the Administrator. The term "shall" usually denotes a mandatory duty, but it sometimes is the equivalent of "may." An analysis of the CWA's language, structure, and legislative history leads to the conclusion that CWA §309(a)(3) does not create mandatory enforcement duties. Because there is no non-discretionary duty that the Administrator failed to perform, CWA §505(a)(2) does not authorize suit against EPA. Thus, there has been no waiver of sovereign immunity and the group's action must be dismissed for lack of subject matter jurisdiction.

Counsel for Plaintiffs
Stuart Henry
Henry, Lowerre, Johnson, Hess & Frederick
202 W. 17th St., Austin TX 78701
(512) 479-8125

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

Canby, J. Before Hawkins, J., and Gould, J., who concurs separately.