The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge
MEMORANDUM OPINION AND ORDER
This action challenges the United States Army Corps of Engineers' (the "Corps")*fn1 issuance of a permit to the City of Newport News ("Newport News") under § 404 of the Clean Water Act ("CWA"), 33 U.S.C. §1344, to construct a 1,526-acre reservoir in King William County, Virginia. Before the court are plaintiffs' motion for leave to file an amended complaint [#21] and defendants' partial motion to dismiss certain claims for lack of subject matter jurisdiction [#24]. Upon consideration of the motions, the responses and oppositions thereto, and the record of this case, the court concludes that it lacks jurisdiction over plaintiffs' and plaintiff-intervenors' claims brought against the Environmental Protection Agency ("EPA") and the Corps pursuant to the citizen-suit provision of CWA, 33 U.S.C. § 1365 (CWA § 505), but that plaintiffs' Administrative Procedure Act ("APA") claims against EPA may proceed.
This action was originally brought by plaintiffs Alliance To Save The Mattaponi, The Chesapeake Bay Foundation, Inc., and the Sierra Club, Virginia Chapter (collectively, the "Alliance"), to challenge the Corps' issuance of a § 404 permit (No. 93-0902-12), which permit authorized construction of a reservoir. On November 8, 2006, the Mattaponi Indian Tribe and its Chief, Carl T. Lone Eagle Custalow (collectively, the "Tribe"), filed an unopposed motion to intervene as plaintiffs, which motion the court granted. The Tribe's complaint adds both a new defendant (EPA) and additional claims against the Corps to those asserted in the Alliance's original complaint.
The Alliance has now moved to amend its complaint to add claims against EPA and the Corps that are essentially identical to those contained in the Tribe's complaint. Defendants (collectively, the "United States") move to dismiss all claims against EPA, all claims against the Corps brought pursuant to § 505(a)(2) of CWA, and, accordingly, to deny the Alliance's motion for leave to amend its complaint as futile.
The parties' motions present three questions: whether these plaintiffs may sue EPA pursuant to § 505(a)(2), whether they may sue the Corps pursuant to § 505(a)(2), and finally, whether they may sue EPA under APA for its alleged inaction regarding the permit.
Section 505 of CWA sets forth the basis under which a citizen may initiate a private civil action. Such a suit may be brought:
(1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation, or
(2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator.
33 U.S.C. § 1365(a). The term "Administrator" refers to the Administrator of EPA. Id. at § 1251(d) ("Except as otherwise expressly provided in this chapter, the Administrator of the Environmental Protection Agency (hereinafter in this chapter called 'Administrator') shall administer this chapter.").
As the statute makes plain, subsection (a)(2) of the citizen-suit provision of CWA authorizes claims against EPA only where EPA has failed to perform a non-discretionary duty. Plaintiffs ...