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Chesapeake Bay Found. v. Virginia State Water Control Bd.

ELR Citation: 11 ELR 20058
Nos. No. 77-0376-R, 495 F. Supp. 1229/17 ERC 1622/(E.D. Va., 07/29/1980) Dismissed

The court rules that the Federal Water Pollution Control Act (FWPCA) does not authorize a federal court challenge to state issuance of a national pollutant discharge elimination system (NPDES) permit. Pursuant to its authority to administer the NPDES program under the FWPCA, the Virginia State Water Control Board issued a permit to allow construction and operation of a petroleum refinery and marine terminal at Portsmouth, Virginia. Plaintiffs claimed that the permit was issued in violation of the FWPCA and Environmental Protection Agency regulations and state law and regulations. The court first concludes that it has federal question jurisdiction under 28 U.S.C. §1331. However, since nothing in the Act explicitly creates a cause of action to challenge a state-issued permit, whether plaintiffs may obtain relief depends upon whether the FWPCA implies such a cause of action. Applying the traditional analysis, the court rules that although plaintiffs are of the class for whose special benefit the FWPCA was enacted, there is no clear expression of legislative intent to create the asserted cause of action because Congress intended the states to administer the NPDES program, and the federal role was limited to review of permits and oversight. In addition, the legislative scheme relies on state administration of the program, and further federal interference would delay the permitting process. Finally, protection of water quality is traditionally a state role, as recognized and reinforced by the FWPCA. The court dismisses both the federal and the state claims, declining to exercise pendent jurisdiction because to do so would violate the spirit of federalism and the legislative intent of the FWPCA.

Counsel for Plaintiffs
Patrick M. McSweeney
McSweeney, Stutts & Burtch
121 Shockoe Slip, Richmond VA 23219
(804) 643-5192

Bruce J. Terris
Terris & Sunderland
1526 18th St. NW, Washington DC 20036
(202) 332-1882

Betty C. Higginbotham
Chesapeake Bay Foundation, Inc.
P.O. Box 1709, Annapolis MD 21404
(301) 268-8816

Counsel for Defendants
Frederick S. Fisher, Ass't Attorney General
Supreme Ct. Bldg., Richmond VA 23219
(804) 786-2071

Gerald L. Baliles
Bell, Ellyson, Wilkins & Baliles
P.O. Box 1640, Richmond VA 23213
(804) 649-7021

J. Michael Hines, John Feore
Dow, Lohness & Albertson
Suite 500, 1225 Connecticut Ave. NW, Washington DC 20036
(202) 862-8000

Counsel for Intervening Defendants City of Portsmouth, The Hampton Roads
Building & Construction Trades Council
Norman Olitsky
Olitsky & Olitsky
814 Citizens Trust Bldg., 355 Crawford Parkway, Portsmouth VA 23704
(804) 397-1281

Steven Lieberman, City Attorney; Stuart E. Katz, Ass't City Attorney
P.O. Box 820, Portsmouth VA 23705
(804) 393-8731