Plaintiff Miccosukee Tribe of Indians of Florida ("Tribe") urges the Court not to dismiss this action before the Court examines the merits of the Tribe's claims. See Plaintiff's Response in opposition to Defendants' Motion to Dismiss ("Opp. Br."). The Tribe contends that this is the kind of case in which the jurisdictional issues are so intertwined with the merits that dismissal is inappropriate at the pleadings stage. Id. at 3-5. The Tribe further argues that its claims are properly brought as a citizen suit under the Clean Water Act ("CWA" or the "Act"). Id. at 7-10.'

            The Tribe's procedural analysis misses the mark. Because our motion to dismiss can be decided on the allegations of the Complaint, it is a "facial" (as opposed to "factual") jurisdictional challenge. Eaton v. Dorchester Dev'p, Inc., 692 F.2d 727, 731 (11th Cir. 1982); Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir.), cert. denied, 454 U.S. 897 (1981); Menchaca v. Chrysler Credit Corp)., 613 F.2d 507, 511 (5th Cir.), cert.

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                                 1 With the exception of mandamus, the Tribe does not seriously contest the point made in our initial brief that the only possible basis for subject matter jurisdiction is the Act's citizen suit provision. See Initial Br. at 9-11; Opp. Br. at 2 & n.1; see also Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 11-18 (1981) (no private right of action under the Clean Water Act independent of the Act's citizen suit provision). While the Tribe continues to maintain that mandamus is available in this case, we showed in our initial brief that it is not, Initial Br. at 9-10, and we are content to rely on our earlier discussion of this issue.

denied, 449 U.S. 953 (1980). ² In a "facial" challenge, the plaintiff's interests are protected by having its allegations taken as true for purposes of the motion, and it therefore is unnecessary for the Court to await factual development of the record to decide the jurisdictional issue. Eaton, 692 F.2d at 731-32; Williamson, 645 F.2d at 412; Menchaca, 613 F.2d at 511. Accordingly, the jurisdictional issue can be resolved at this time.

                Second, the Tribe's attempt to argue that this action is a proper CWA citizen suit must be rejected. Even assuming Plaintiff's central allegation -- i.e., that the Everglades Forever Act ("EFA") effectively constituted a change in water quality standards -- to be true for purposes of this motion, jurisdiction would still be lacking under the CWA citizen suit provision, 33 U.S.C. § 1365. See Initial Br. at 17. The jurisdictional question is a simple one -- does this case involve a statutorily mandated duty that is "not discretionary with the Administrator"? 33 U.S.C. § 1365(a)(2). Whether or not the

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                    2 We attached a letter from EPA to the State of Florida to our initial brief in order to provide the Court ' with an updated factual background of this dispute. However, this attachment was informational only, and the jurisdictional issue can be decided solely on the basis of the pleadings. In this regard, we note that the Tribe is incorrect in its suggestion that the Court should convert our motion into a rule 56 motion if it considers matters beyond the pleadings in deciding the jurisdictional issue. Compare Opp. Br. at 5-6 & n.2 (suggesting that such a conversion may be appropriate) with Region 8 Forest Service Timber Purchasers v. Alcock, 993 F.2d 800, 807 n.8 (11th Cir. 1993) (conversion appropriate only for.12(b)(6), not 12(b)(1), motions), cert. denied, 114 S. Ct. 683 (1994).

                As we discussed in our initial brief, there are only two authorities that possibly could be relevant to this case:
 (1) EPA's duty to review state submissions under CWA § 3 0 3 (c) (1) - (3) , 3 3 U. S. C. § 13 13 (c) (1) - (3) ; and (2) EPA's authority under CWA § 303(c)(4) to propose new or revised standards for a state after it determines that such action is "necessary to meet the requirements of this chapter.,, 33 U.S.C. § 1313(c)(4). See Initial Br. at 13-15. Neither of these authorities, however, gives rise to a nondiscretionary duty in this case. First, the submission-and-review requirements of section 303(c)(l)-(3) have not been triggered since there has been no submission of a new or revised standard by the State to EPA. Initial Br. at 13-14. Second, EPA's authority under section 303(c)(4) is inherently discretionary and, in any event, EPA has not made the necessary threshold determination under that provision (i.e., that a new or revised standard is "necessary"). Id. at 14-15. Therefore, even if the Tribe were right about the EFA (which it is not), a citizen suit such as the Tribe's is not

                            3 While the Tribe contends that the EFA effectively constitutes a change in state water quality standards, Florida does not view the EFA as a water quality revision, and accordingly has not submitted the EFA to EPA for CWA S 303(c) review. Complaint 39-40.

the-mechanism which Congress intended to address this situation.⁴

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and raised with Florida the Tribe's contentions concerning the EFA. As indicated in the letter attached to our initial brief, EPA (like Florida) simply has concluded after thorough analysis that the Tribe's interpretation of the EFA is incorrect.}

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requirements of the CWA...")  As held in applicable precedent in this and other circuits,- however, EPA's investigatory and enforcement authority is "discretionary" and hence is not actionable under the Act's citizen suit provision. See Sierra Club v. Train, 557 F.2d 465, 488-91 (5th Cir. 1977); see also, e.g.., Dubois v. Thomas, 820 F.2d 943, 947-51 (8th Cir. 1987); see also Initial Br. at 17, n.9. As the Eighth Circuit explained, in order for EPA to most effectively enforce the Act, the Agency must have the discretion to allocate its limited investigatory resources as it finds most appropriate, and it is clear that the citizen suit provision was not intended "to enable citizens to commandeer the federal enforcement machinery." Dubois, 820 F.2d at 948-49. For similar reasons, Congress surely did not intend the citizen suit provision to be used to compel the Agency to pursue every substantive claim pertaining to state water quality standards posited by private individuals. Scott, 741 F.2d at 995.⁶

                ^{6         We note that the unavailability of a citizen suit in the present circumstances does not leave the Tribe without any means to air concerns about Florida's water quality standards. For example, EPA's decisions approving or disapproving Florida's CWA S 303(c) submissions constitute "final agency action" reviewable under the Administrative Procedure Act, 5 U.S.C. 551, et seq.  See, e.g., NRDC. Inc. v. EPA, 770 F. Supp. 1093 (E.D. Va. 1991), 806 F. Supp. 1263 (E.D. Va. 1992), aff'd, 16 -F.3d 1395, 1406 (4th Cir. 1993) (APA challenge to EPA approval of state water quality standards considered (and denied) on the merits, while citizen suit alleging substantive deficiencies in criteria on which standards were partially based dismissed for lack of jurisdiction).}

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                ^{We stress that this is not a case involving the failure of a state to submit any water quality standards (or related submissions) as was the issue in the case relied on by the Tribe, Alaska Center for the Environment v. Reilly, 762 F. Supp. 1422 (W.D. Wash. 1991), aff'd, 20 F.3d 981 (9th Cir. 1994). See Opp. Br. at 8-9. Rather, in this case Florida has existing water quality standards in effect which the Tribe appears to support. See Complaint 11 24-25. Thus, the determination by Florida and EPA that the EFA did not change these standards merely means that the existing standards -- which the Tribe favors -- are still the applicable standards in the state.7}