Mississippi River Revival, Inc. v. Administrator

Nos. 99 Civ. 1596, -1597 DDA/FLN (107 F. Supp. 2d 1008) (D. Minn. August 10, 2000)

ELR Digest

The court dismisses an environmental group's citizen suit against the U.S. Environmental Protection Agency (EPA) for failing to issue national pollutant discharge elimination system (NPDES) stormwater permits to St. Paul and Minneapolis, Minnesota, and partially dismisses the group's citizen suit against the cities of St. Paul and Minneapolis for discharging stormwater to the Mississippi River without an NPDES permit. The cities applied for permits in 1992 and 1993, but by mid-2000, no final permits were issued. The court first grants EPA's motion to dismiss for lack of subject matter jurisdiction. EPA does not have a mandatory duty to act on the cities' permit applications. CWA § 402(p) places the responsibility for issuing or denying stormwater permits on the EPA Administrator or the state. Here, the state obtained authorization to administer the NPDES permit program in 1974, thus, the duty to issue or deny the cities' applications for stormwater permits rests with the state, not EPA. The constructive submission theory offered by the environmental group is inapplicable in this case. Unlike CWA § 303(d), which requires EPA to develop total maximum daily load lists if the state's lists are inadequate, there is no corresponding mandatory duty for EPA to approve or disapprove any permit application or action under CWA § 402.

The court next holds that the environmental group's claim that the cities violated and continue to violate the CWA for maintaining stormwater sewer systems without a permit is a claim upon which relief can be granted. The group alleges, and the cities admit, that they do not have an NPDES stormwater permit, yet they continue to discharge stormwater through its storm sewers into the Mississippi River in violation of the CWA. Moreover, the record is insufficient to remove any disputed material fact as to whether the cities fall into the narrow exception of the zero-discharge standard, which excuses minimal discharges that occur despite the entities' best efforts to reduce the amount of discharge and to comply with applicable law. Last, the court grants the cities' motion to dismiss the group's claim that the cities' application for a stormwater permit does not fully comply with the application requirements. The CWA does not authorize jurisdiction for an action challenging the contents of a permit application.

The full text of this opinion is available from ELR (8 pp., ELR Order No. L-255).

Counsel for Plaintiffs
Richard B. Bates
Law Offices of Susan Bates
St. Paul MN 55124
(952) 432-0440

Counsel for Defendant
David S. Gualtieri
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

[31 ELR 20011]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]