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MONTGOMERY ENVTL. COALITION v. FRI

October 31, 1973

MONTGOMERY ENVIRONMENTAL COALITION et al., Plaintiff,
v.
Dr. Robert W. FRI et al., Defendants


John Lewis Smith, Jr., District Judge.


The opinion of the court was delivered by: SMITH, JR.

JOHN LEWIS SMITH, Jr., District Judge.

 This cause of action is based on violations of certain water quality standards which plaintiffs claim are actionable under the Federal Water Pollution Control Act Amendments of 1972 (1972 Act), 33 U.S.C. § 1251 et seq. (Supp. II, 1973). Plaintiffs, who comprise two community groups and the District of Columbia, bring this suit pursuant to the "Citizen Suits" provision of the 1972 Act, 33 U.S.C. § 1365(a). The complaint is for declaratory and injunctive relief ordering defendants to refrain from approving, permitting or authorizing further sewer hookup permits which would result in sewage discharges affecting the water quality of the Potomac River. The case is now before the Court on motions to dismiss filed by seven of the eight defendants against the two community groups. *fn1" For reasons set forth below, this Court grants the motions to dismiss filed by defendants Montgomery County Council, James P. Gleason, County Executive, and the Department of Natural Resources for the State of Maryland, and denies the motions to dismiss filed by the remaining four defendants.

 I STANDING

 The statutory grant relied on for standing in Sierra is § 10 of the Administrative Procedure Act, 5 U.S.C. § 702, which provides in part:

 
"A person . . . adversely affected or aggrieved by agency action . . . is entitled to judicial review thereof."

 In the present case, 33 U.S.C. § 1365(a) allows "any citizen" to bring a civil suit. Section 1365(g) defines citizen as:

 
". . . a person or persons having an interest which is or may be adversely affected." (emphasis added)

 While the statutory language relied on for standing in the instant case is arguably broader in scope than that relied on in Sierra, the Court takes note of congressional intent behind section 1365(g) which sought to base standing requirements on those pronounced in Sierra.2 Applying the Sierra guidelines to plaintiff community groups, the Court finds that standing has been established.

 The two community groups allege in their complaint that their members are citizens of the District of Columbia and Montgomery County, Maryland, two jurisdictions which are contiguous to the flow of the Potomac River. Unlike the plaintiff in Sierra, the instant plaintiffs are groups of citizens who claim to live within the environs of the natural object they seek to protect. General interest in the aesthetic and environmental well-being of a river running past one's community area is obviously on a higher plane than the interest a national environmental group composed of non-resident citizens or users might properly claim. It would be an unjustified presumption on the Court's part to think that none of the aesthetic and recreational values of the plaintiffs will be lessened by increased pollution of the Potomac River when the river itself passes within the midst of plaintiffs' community.

 II JURISDICTION

 Jurisdiction is claimed under the citizen suit provision of the 1972 Act, 33 U.S.C. § 1365(a)(1), which permits citizen suits for violation of (A) an effluent standard or limitation under the Act, or (B) an order issued by the Administrator of the Environmental Protection Agency or a State with respect to such standards or limitations. Plaintiffs contend that water quality standards for the District of Columbia and Maryland promulgated under the Water Quality Act of 1965 (1965 Act), 33 U.S.C. § 1151 et seq., constitute effluent standards or limitations pursuant to § 1365(a)(1)(A), and that the two agreements to which the District and Maryland are signatories, constitute a state order within the scope of § 1365(a)(1)(B). *fn3"

 The 1972 Act creates an enforcement policy built around specific effluent limitations as opposed to the water quality standards of the 1965 Act. A comparison of the two Acts indicates that water quality standards refer to maximum concentrations of pollutants in a body of water while effluent standards refer to absolute limitations on pollutants discharged from a particular source. The former are concerned with the quality of a ...


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