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Defenders of Wildlife v. Browner

ELR Citation: 26 ELR 20894
Nos. No. 93-234 TUC ACM, 909 F. Supp. 1342/(D. Ariz., 12/21/1995) order to promulgate standards; motion to reconsider denied

The court holds that the U.S. Environmental Protection Agency (EPA) unreasonably delayed proposal and promulgation of water quality standards for Arizona in violation of the Federal Water Pollution Control Act (FWPCA) after Arizona failed to revise state water quality standards that EPA disapproved, and orders the Agency to publish proposed new or revised standards and to finalize them if the state fails to adopt the proposed standards within 90 days of the order. FWPCA §303(c)(4) requires EPA to "promptly" promulgate standards for the state if the state refuses to revise its standards within the statutorily mandated time. The court holds that EPA unreasonably delayed proposal and promulgation of Arizona's water quality standards. The timeliness standards of §303 must be met within the confines of the FWPCA's requirements for triennial review and, if necessary, revision of a state's water quality standards. When a state fails to take remedial action, EPA must propose water quality standards and promulgate the standards no later than 90 days from the date of publication. The disapprovals that should have been issued by May 19, 1992, were delayed until September 9, 1993, and April 29, 1994, and only occurred as a result of the litigation. The court orders EPA to prepare and publish proposed revised or new water quality standards for the standards disapproved on September 9, 1993, and April 29, 1994, and to promulgate the revised or new standards 90 days after publishing the proposed standards unless Arizona adopts revised or new standards that are in accordance with the FWPCA.

On EPA's motion to reconsider, the court first holds that it did not exceed its mandate by ordering action beyond the proposing of water quality standards. The FWPCA mandates that EPA's duty to propose and promulgate water quality for a state must be carried out within the short timetable specified. To construe the mandates piecemeal for purposes of granting relief would render the statute wholly ineffective. The court next holds that it properly considered past violations that amount to a pattern of violations indicating a strong likelihood of future violations. The court notes that it has attempted not to invade EPA's discretionary realm to determine the substance and manner by which to fashion water quality standards for Arizona. Moreover, the court's order issued replicates the Act's mandate. EPA is placed in no greater jeopardy to complete proposal and promulgation of the state's water quality standards than when its duty to act existed solely under the statute.

[A prior decision in this litigation is published at 25 ELR 21582.]

Counsel for Plaintiffs
David S. Baron, Ass't Director
Center for Law in the Public Interest
1840 E. River Rd., Ste. 207, Tucson AZ 85718
(520) 529-1798

Counsel for Defendants
Kate Dreyfuss, Karen Egbert
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000