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11th Cir. Dismisses Challenge to Water Pollution Oversight

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By Jonathan R. Tung, Esq. on December 09, 2015 10:00 AM

The Eleventh Circuit recently dismissed a petition for appeal by a small group of environmental groups seeking to remove Alabama's authority to run the local arm of the National Pollutant Discharge Elimination System (NPDES).

This is not the final say on whether or not the case will move forward, since the circuit dismissed the case essentially for lack of ripeness.

The appeal was brought environmental groups Cahaba Riverkeeper, Choctawatchee Riverkeeper and Friends of Hurricane Creek after the EPA found that the state's application and running of the NPDES, although imperfect, "did not warrant" withdrawal of authority proceedings.

The Clean Water Act

The NPDES is a section of the federal Clean Water Act. The language of the statute essentially allows the EPA to deputize local jurisdictions with the power to administer the program and to maintain it. The language of the law also allows the EPA to remove such authority upon review of the facts.

Dismissed Without Prejudice

The Eleventh Circuit found that 22 of the 26 alleged deficiencies did not warrant the agency to withdraw authority, but it did find that there were "serious concerns" with the remaining four other alleged violations. However, it also concluded that Alabama's running of the program was in "delicate" stage and that Circuit Court interference could disrupt the smooth and easy administrative purpose envisioned by the Clean Water Act. Thus, it refused to touch it.

The language of the court seems to almost suggest that even if the EPA were to make a final ruling on the matter, that it would still be reticent to get involved, preferring to defer to federal authority on the topic. Thus, its dismissal without prejudice may not hold as much psychological water as the court had intended.

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