MICCOSUKEE TRIBE OF INDIANS                                                   CASE NO. 95-0533-CIV-DAVIS OF FLORIDA, a federally-recognized

Indian Tribe,                                                                             Magistrate Judge Turnoff

                                            ORDER GRANTING DEFENDANTS' MOTION TO DISMISS  
BEFORE THE COURT, are Defendants' Motion to Dismiss (filed May 15, 1995) and Defendants' Motion to Stay Discovery (filed June 23, 1995). Defendants, United States of America, the Environmental Protection Agency, Carol Browner, and John Hankinson, Jr. (collectively, "the defendants"), urge this Court, pursuant to Federal Rule of Civil Procedure 12(b)(1), to dismiss the plaintiff's, the Miccosukee Tribe of Indians of F'lorida ("the Tribe"), complaint for lack of subject matter jurisdiction. After careful consideration of the Motion, the Response, and the Reply,, the Court will grant the Motion to Dismiss for the reasons set forth below.

            The Tribe brings this action pursuant to Section 505(a) of the Federal Water Pollution Control- Act ("Clean Water Act" or "CWA"^l) 33 U.S.C. § 1365(a) (the CWA's citizen suits provision) and 28 U.S.C. § 1331 (federal question), § 1361 (mandamus action to compel a United States officer or employee to perform a duty owed to the Plaintiff), § 1362 (civil actions brought by federally recognized Indian Tribes wherein the matter in controversy arises under the Constitution, laws, or treaties of the United States), and § 2201 (action for declaratory relief). The Tribe seeks a mandamus order compelling the defendants to comply with their duties under the Clean Water Act, and also seeks declaratory and injunctive relief declaring that the State of Florida's Everglades Forever Act ("EFA" or "Florida's Act") violates the anti-degradation requirements of the CWA..
                 On September 15, 1994 the Tribe formally notified Florida of the Tribe's belief that the EFA, which was signed into law by Governor Lawton Chiles in May of 1994, constituted a change in state water quality standards. If Florida's Act constituted a change in Florida's existing water quality standards, then the CWA's review procedures, 33 U.S.C. § 1313(c), would be triggered and the Administrator of the Environmental Protection Agency ("the
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        1 The name "Clean Water Act" generally refers to amendments to the Federal Water Pollution Control Act enacted in. 1972. Pub.L. No ' 92-500, 86 Stat. 816, codified at 33 U.S.C. § 1251-1376. Las Vegas v. Clark County, 755 F.2d 697, 699 (9th Cir. 1985) (citing Aminoil U.S.A., Inc. v. California State Water Resources Control Board, 674 F.2d 1227, 1229 (9th Cir. 1982)).

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EPA") would be required to review the new standard in light of the CWA's requirements and goals.² However, on October 31, 1994, the State of Florida's response to the Tribe's letter indicated that Florida did not consider the EFA to constitute a change in water quality standards and invited further discussions if the EPA disagreed with this assessment. As of the filing of this suit, the EPA has made no such disagreement.

                The Tribe filed suit on March 16, 1995, asking the Court to issue an order directing the EPA to treat the EFA as a change in Florida's water quality standards, directing the EPA to require Florida to initiate notice and public hearings on any such change, and declaring that the EFA does, in fact, violate the requirements of the Clean Water Act. The defendants presently move this Court to dismiss the Complaint, contending that the Tribe's only possible basis for federal jurisdiction is the CWA's citizen suit provision,
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²         33 U.S.C. § 1313(c) provides in part:

(2) Whenever the State revises or adopts a new [water quality] standard, such revised or new standard shall be submitted to the Administrator. . . .
(3) If the Administrator, within sixty days after the date of submission of the revised or new standard, determines that [it] is not consistent with the applicable requirements of this chapter, he shall not later than the ninetieth day after the submission of such standard notify the State and specify the changes to meet such requirements . . . . 
(4) The Administrator shall promptly prepare and publish proposed regulations setting forth a revised or new water quality standard for the navigable waters involved (A) if a revised or new water quality standard submitted by [a] State is determined by the Administrator not to be consistent with the applicable requirements of this chapter, or (B) in any case where the Administrator determines that a revised or new standard is necessary to meet the requirements of this chapter.

                3             Although the Tribe alleges federal jurisdiction based on 33 U.S.C. § 1365(a) in addition to several sections of Chapter 28 of the United States Code, 33 U.S.C. §1365(a) has been interpreted to preclude alternate bases for suits. See Middlesex County Sewerage Authority v. National Sea Clammers Asso., 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981) ("[W]e are persuaded that Congress evidenced no intent to authorize by implication private remedies under [the Clean Water) Act[) apart from the expressly authorized citizen suits."); see also Conservation Law Found. v. Browner, 840 F. Supp. 171, 177-78 n.11 (D. Mass. 1993) (denying mandamus jurisdiction because an alternate remedy existed in the statute's citizen suit provision). Therefore, the Court will consider the jurisdiction issue only with regard to 33 U.S.C. § 1365(a) and need not evaluate the parties, dispute as to the sovereign immunity implications raised by the Chapter 28 statutes.

of material facts will not preclude the court from evaluating the merits of the jurisdictional claims. id.⁴

                The parties do not dispute that a clearly mandated, nondiscretionary duty imposed on the EPA is a prerequisite for federal jurisdiction under the citizen suit provision of §1365(a).⁵ See, e.g., Scott v. Hammond, 741 F.2d 992 (7th Cir. 1984), cert. denied, 469 U.S. 1196, 105 S.Ct. 979, 83 L.Ed.2d 981 (1985); see also Natural Resources Defense Council, Inc. v. Thomas, 885 F.2d 1067 (2nd Cir. 1989) (recognizing that citizen suits under the Clean Air Act, which has virtually identical citizen suit provisions to those of the Clean Water Act, must involve a
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        ⁴                 In the instant case, although the defendants briefly mention that the Complaint fails to state a claim (Motion at p.1), the Court notes that the essence of the Motion is a facial attack on the Tribels,complaint for lack of subject matter jurisdiction. Accordingly, the allegations in the Complaint are accepted as true for the purposes of the Court's present analysis. The Court notes, however, that it need not accept as true the Tribe's legal conclusion--, e-g., that 11[i]n enacting the EFA, the State of Florida changed the narrative [water quality) standards described above . . . 11 (Complaint at p.6, 1 27) or that 11[b]y enacting the EFA, the State and its agencies . . . have violated the Clean Water Act . . . 11 (Complaint at p. 6, 11 29). Nonetheless, the Court would reach the same conclusion even if it accepted the Tribe's allegations because the Tribe does not dispute the fact that no submission has been made by the State of Florida to the EPA that would trigger a non-discretionary duty.

        ⁵        Congress intentionally restricted citizen suits under § 1365(a) to cases of an agency's failure to perform a nondiscretionary duty in an attempt "to limit the number of citizen suits which could be brought . . . and to lessen the disruption of the [Clean Water] Act's complex administrative process." Kennecott Copper Corp. , Nevada Mines Div. v. Costle, 572 F. 2d 1349, 1353 (9th Cir. 1978).

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nondiscretionary, administrative duty) (citing Sierra Club v. Thomas, 828 F,2d 783 (D.C. Cir, 1987)),

                    The only remaining issue, therefore, is whether the EPA had a nondiscretionary duty to treat the EFA as a change in Florida's water quality standards, and to therefore propose its own alternative regulations or simply require the State of Florida to initiate public hearings on Florida's new regulations. It is well established, however, that the initial duty of promulgating the water quality standard is on the State, with the EPA merely retaining the supervisory role of reviewing the State's submissions. See District of Columbia v. Schramm, 631 F.2d 854, 860 (D.C. Cir. 1980).

                In addition, under the plain language of the Clean Water Act, it is clear that the EPA's evaluation of state water quality regulations is almost entirely dependent upon the state's determination that the new regulation actually imposes a revised or new water quality standard. See 33 U.S.C. § 1313(c)(2) & (3); see also Chevron U.S.A., Inc. v.Hammond, 726 F.2d 483 (9th Cir. 1984) ("there is strong support in the legislative history [of the CWA] for a conclusion that Congress wanted to encourage a federal-state partnership for the control of water pollution" and that "in the CWA Congress has clearly expressed its intent to allow the states to take an active role in abating water pollution."). However, in the present case, Florida deemed that the Everglades Forever Act does not constitute a revised or new water quality standard, made

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6 Because the statutory prerequisites for EPA's duty to act pursuant to 33 U.S.C. § 1313(c)(2) & (3) simply were not met, the Court need not consider whether the duties imposed by those subsections are ministerial or discretionary in nature.

certain materials as hazardous pollutants absent a final determination by the EPA of the risks posed by the materials) and Las Vegas,   755 F.2d 697 (9th (Cir. 1985) (holding that the appropriate means of challenging the EPA's position regarding a state's water quality standard is via the Administrative Procedure Act, not § 1365(a)).

FURTHER ORDERED AND ADJUDGED that Defendant's Motion to Stay Discovery (filed June 23, 1995) pending the Court's decision on the present Motion to Dismiss is DENIED AS MOOT. This case is closed. All pending motions not otherwise ruled upon are DENIED AS MOOT.