Before BAZELON, TAMM and WILKEY, Circuit Judges.
UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT
MONTGOMERY ENVIRONMENTAL COALITON CITIZENS COORDINATING
Appeal from the United States District Court for the District of Columbia. (D.C. Civil Action No. 1307-73).
Opinion for the Court filed by BAZELON, Circuit Judge.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BAZELON
For the second time, *fn1 we review a decision of the district court arising out of a complaint by the Montgomery Environmental Coalition . *fn2 MEC seeks to enjoin the Washington Suburban Sanitary Commission from exceeding its allotted share of the sewage treatment capacity at the Blue Plains Sewage Treatment Plant (Blue Plains). *fn3 MEC alleges that excess flows from WSSC have increased the discharge of pollutants from Blue Plains, which in turn contribute to a violation of the promulgated water quality standards for the Potomac River. Because we believe that the commencement of EPA proceedings to issue Blue Plains a National Pollution Discharge Elimination System permit vests primary jurisdiction over this issue in EPA, we affirm the order of the district court dismissing this action. I.
The long and tortured history of this litigation need be rehearsed only briefly. In 1973 MEC filed an action in district court against EPA, WSSC, the Mayor of the District of Columbia, the Governor of Maryland, the Montgomery County Executive, and several other governmental agencies. MEC alleged that WSSC was exceeding the volume of sewage allotted to it for treatment at Blue Plains, an allotment based on agreements among the affected jurisdictions. MEC alleged that, as a result of the excess sewage flows, Blue Plains was discharging raw and inadequately treated sewage into the Potomac, degrading the quality of the water in the Potomac below the water quality standards established pursuant to the Water Quality Act of 1965, P.L. 89-234, 79 Stat. 903 (the 1965 Act). *fn4
After some procedural shuffling, a hearing was held on various defendants' motion to dismiss MEC's suit. Judge Smith denied the motion to dismiss of several defendants. MEC v. Fri, 366 F. Supp. 261 (D.D.C.1973). He held that the water quality standards promulgated under the 1965 Act constituted a "floor level of quality until the stiffer effluent limitations of the 1972 Act can be implemented," and that the discharge of a pollutant that contributes to the violation of a water quality standard would violate 33 U.S.C. § 1311(a). Id. at 265. In Judge Smith's view, this violation could be abated through a citizens' suit pursuant to § 1365(a)(1), and MEC had standing to bring that suit. *fn5
MEC's suit soon became entangled with a suit filed by the State Water Control Board of Virginia, Fairfax County, and the District, all of whom also sought to limit WSSC's flows to Blue Plains pursuant to the agreements. *fn6 WSSC sought to have MEC's suit consolidated with that filed by SWCB, but Judge Smith rejected that effort. Negotiations in the SWCB suit finally led, in 1974, to a new interjurisdictional agreement for allocating the capacity of Blue Plains. This agreement was formalized in a consent decree, after the agreement received the approval of EPA.
On May 31, 1974, EPA issued a NPDES permit for Blue Plains. Pursuant to EPA rules, several parties, including MEC, filed objections to portions of the permit. On the basis of these objections, EPA set the Blue Plains NPDES permit for an adjudicatory hearing.
Following these administrative developments, several hearings were held in this case in the district court, first on MEC's motion to withdraw its request for a preliminary injunction, *fn7 and later on WSSC's motion to dismiss. Both motions were ultimately granted. *fn8
On May 10, 1976, after a timely appeal by MEC, we remanded this case to the district court to consider three questions. *fn9 No action was taken on the remand until the spring of 1978, when, at the direction of the district court, MEC filed both a memorandum addressing the remanded issues and a motion to amend its complaint, After respondents filed opposing memoranda, the district judge dismissed the complaint without leave to amend. He ruled:
(1) the instant action has been rendered moot by the consent decree in State Water Control Board, et al. v. Washington Suburban Sanitary Commission, C.A. No. 1813-73 and by the issuance of a discharge permit governing discharges from the Blue Plains Sewage ...