United States District Court, D. Maine
ORDER ON THE ENVIRONMENTAL PROTECTION AGENCY'S
MOTION TO DISMISS COUNT III OF THE SECOND AMENDED
LEVY U.S. DISTRICT JUDGE.
Clean Water Act requires states to establish water quality
standards for every body of water within a state.
See 33 U.S.C.A. § 1313 (2016). These standards
include three components: (1) designated uses for each body
of water, such as recreational, agricultural, or industrial
uses; (2) specific limits on the levels of pollutants
necessary to protect those designated uses; and (3) an
antidegradation policy designed to protect existing uses and
preserve the present condition of the waters. Nat'l
Wildlife Fed'n v. Browner, 127 F.3d 1126, 1127 (D.C.
Cir. 1997); see also 40 C.F.R. §§
Clean Water Act also requires states to review their water
quality standards at least once every three years and to
submit the results of the review to the U.S. Environmental
Protection Agency (“EPA”). See 33 U.S.C.
§ 1313(c)(1). The EPA is then responsible for reviewing
any new or revised standards adopted by the states to
determine if the standards are consistent with the Clean
Water Act and EPA regulations promulgated under it. See
Id. at § 1313(c)(2)(A), (c)(3).
2014, the plaintiffs State of Maine and the Maine Department
of Environmental Protection (collectively,
“Maine”) sued the EPA, claiming that it had
failed to timely approve or disapprove Maine's revised
surface water quality standards. ECF No. 1; ECF No. 7. In
February 2015, the EPA issued a formal decision in which it
approved some of Maine's water quality standards and
disapproved others. ECF No. 30-1 at 4; see also ECF
No. 26 at 1-2. Maine subsequently filed a Second Amended
Complaint in which it seeks judicial review under the
Administrative Procedure Act, 5 U.S.C.A. §§ 701-706
(2016) (Count One), ECF No. 30 at 48-50, and a declaratory
judgment under the Declaratory Judgments Act, 28 U.S.C.A.
§ 2201-2202 (2016) (Count Two), id. at 50-52.
Maine also seeks judicial review of the EPA's disapproval
based on the citizen suit provision of the Clean Water Act,
33 U.S.C.A. § 1365(a)(2) (2016), through which it also
seeks litigation costs and attorneys' fees (Count Three).
Id. at 52-54.
has filed a motion to dismiss Count Three, arguing that the
Clean Water Act does not allow for judicial review of its
decision to disapprove the water quality standards. ECF No.
49 at 1. For the reasons explained below, the EPA's
motion is granted.
Citizen Suit Provision of the Clean Water Act, 33 U.S.C.
contends that prior to May 2000, the EPA approved its water
quality standards in full and without qualification and that
those water quality standards have been in effect for all
waters in the state ever since, including Indian Waters. ECF
No. 51 at 11, 13-14 (citing AR 388-427; 372-377). Maine also
asserts that, as a consequence, the EPA had a
non-discretionary duty under the Clean Water Act to accept
all of Maine's revised water quality standards and had no
discretion to reconsider any of them. ECF No. 51 at 11-15
(citing 33 U.S.C.A. §§ 1313(c)(2)(A), 1313(c)(3),
1370; 40 C.F.R. § 131.21(c)-(f)).
1313 of the Clean Water Act imposes on the EPA Administrator
“a mandatory duty to review any new or revised state
water quality standards.” Miccosukee Tribe of
Indians of Fla. v. EPA, 105 F.3d 599, 602 (11th Cir.
1997) (citing Nat. Res. Def. Council v. EPA, 16 F.3d
1395, 1399 (4th Cir. 1993)). Reviewing the water quality
standards is mandatory; approving or rejecting them is
discretionary. Friends of Merrymeeting Bay v. Olsen,
839 F.Supp.2d 366, 372 (D. Me. 2012) (“The EPA has
discretion to approve or reject the new or revised standards,
but its duty to review a new or revised standard is
mandatory.”). The crux of Maine's Second Amended
Complaint is that the EPA erred when it disapproved certain
state water quality standards, not that the EPA failed to
review them. See ECF No. 30 at 2-3, ¶ 6. Thus,
Maine has failed to state a claim that the EPA has failed to
act for purposes of § 1365(a)(2) of the Clean Water
Maine asserts that the Maine Indian Claims Settlement Act, 25
U.S.C. §§ 1721-1735 (2015), and the Maine
Implementing Act, 30 M.R.S.A. §§ 6201-6214 (2016)
(collectively, the “1980 Acts”), require the EPA
to treat Maine's Indian tribes the same as it does the
rest of Maine's citizenry and therefore mandate approval
of all water quality standards. Id. at 15-18 (citing
25 U.S.C. §§ 1725(a)-(b)(1); 30 M.R.S.A. §
6204). This argument does not assert a failure by the EPA to
review Maine's water quality standards. Thus, as was true
with its argument under the Clean Water Act, Maine's
argument under the 1980 Acts does not demonstrate a failure
to act on the part of the EPA.
therefore conclude that Maine has failed to state a claim
under the citizen suit provision of the Clean Water Act, 33
U.S.C.A. § 1365(a)(2), and the EPA's motion to
dismiss Count Three should be granted.
Administrative Procedure Act Claims
also requests that I clarify that all action taken by the EPA
with regard to Maine's water quality standards is
reviewable under the Administrative Procedure Act. ECF No. 51
at 18-20. The EPA counters that “Maine's challenge
to EPA's disapproval of Maine's [water quality
standards] must wait until after EPA has promulgated
replacement federal [water quality standards].” ECF No.
52 at 7.
One of the Second Amended Complaint asserts Maine's
claims under the Administrative Procedure Act, 5 U.S.C.A.
§§ 701-706. There is no motion before the court
challenging the ripeness of this count, and therefore, I
decline to address that issue now. Accordingly, this order is
limited to the EPA's Motion to Dismiss Count ...