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District of Columbia v. Schramm

Citation: 10 ELR 20520
No. No. 78-2209, 631 F.2d 854/15 ERC 1102/(D.C. Cir., 06/18/1980)

The court denies the District of Columbia's (the District's) request for declaratory and injunctive relief requiring the Environmental Protection Agency (EPA) and the state of Maryland to revoke the national pollutant discharge elimination system (NPDES) permit of a Maryland waste water treatment plant discharging effluent into a stream shared by the two jurisdictions. First, the court finds that, under the Federal Water Pollution Control Act, EPA's decision not to veto the state permit is not judicially reviewable. Allowing such review would disturb the balance between federal and state authority established by Congress when it vest primary responsibility for water pollution control in the states, leaving EPA discretionary review of the issuance of permits. Similarly, EPA was not obliged to prepare an environmental impact statement for the permit because the failure to veto such a permit does not constitute a "Federal action" under §102(2)(C) of the National Environmental Policy Act. The court also rules that the Act creates no implicit federal cause of action for persons seeking review of state decisions on NPDES permit applications. Observing that Congress requires stated to provide adequate remedies for permit violations as a condition precedent to receiving federal approval of NPDES programs, the court concludes that disputes over state permitting activities were intended to be reviewed in state courts. Nor does the District have a right to equitable relief under the federal common law of nuisance since it failed to demonstrate that it has suffered any injury as a result of the operation of the plant. In dictum, the court adds that had such an injury been shown, the District would have been entitled to some form of relief.

Counsel for Appellant
Frederick F. Stiehl, Ass't Corporation Counsel; Judith W. Rogers, Corporation Counsel; John C. Salyer, Richard G. Wise, Ass't Corporation Counsel
1350 E St. NW, Washington DC 20004
(202) 727-6240

Counsel for Appellees State of Maryland et al.
Thomas A. Deming, Edward F. Lawson, Ass't Attorneys General
Law Dep't, One S. Calvert St., Baltimore MD 21202
(301) 383-3737

Counsel for Appellees United States et al.
Nancy B. Firestone; James W. Moorman, Ass't Attorney General; John V. Varnum, Dirk D. Snel
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2757

Joan Z. Bernstein, General Counsel; Diane L. Olsson
Environmental Protection Agency, Washington DC 20460
(202) 755-0760

Counsel for Appellee Washington Suburban Sanitary Comm'n
Paul T. Sisson, Associate Counsel
Washington Suburban Sanitary Commission
4017 Hamilton St., Hyattsville MD 20781
(301) 699-4730

Counsel for Amicus Curiae
David G. Burwell
National Wildlife Federation
1424 16th St. NW, Washington DC 20036
(202) 797-6845

Stephen M. Truitt
Wald, Harkrader & Ross
1300 19th St. NW, Washington DC 20036
(202) 828-1234

Counsel for RCTS Charter Association
Charles G. Dalrymple, John J. Delaney
Linowes & Blocher
8720 Georgia Ave., Silver Spring MD 20910
(301) 588-8580

Before J. EDWARD LUMBARD,* U.S. Senior Circuit Judge for the Second Circuit, and TAMM and MIKVA, Circuit Judges.