*

Honorable Maurice B. Cohill, Jr., Senior U.S. District

Judge for the Western District of Pennsylvania, sitting by

designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 95-5080.

MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, a federally recognized

Indian Tribe, Plaintiff-Appellant,

v.

UNITED STATES of America, ENVIRONMENTAL PROTECTION AGENCY, Carol

Browner, Administrator of the Environmental Protection Agency, John

Hankinson, Jr., EPA, Regional Administrator for Region IV,

Defendants-Appellees.

Feb. 10, 1997.

Appeal from the United States District Court for the Southern

District of Florida. (No. 95-0533-CIV-EBD), Edward B. Davis, Judge.

Before HATCHETT, Chief Judge, DUBINA, Circuit Judge, and COHILL*

,

Senior District Judge.

HATCHETT, Chief Judge:

Appellant, Miccosukee Tribe of Indians of Florida (the Tribe),

filed a complaint under the citizen suit provision of the Clean

Water Act (CWA), 33 U.S.C. § 1365(a), against the United States

Environmental Protection Agency (EPA), the Administrator of the EPA

(the Administrator), and other agency officials. The Tribe alleged

that the Administrator failed to comply with its duties under the

CWA and to find Florida's water quality standards violated the

antidegradation requirements of the CWA, 33 U.S.C. § 1313(d)(4)(B).

The district court, finding the Administrator had no mandatory duty

to act, dismissed the Tribe's complaint for lack of subject matter

jurisdiction. We reverse.

BACKGROUND
In May 1994, the state of Florida enacted the Everglades

Forever Act (EFA), Fla. Stat. Ann. § 373.4592 (West Supp.1994).

Florida characterizes the EFA as a state legislative action to

restore and maintain the ecosystem in the Everglades. On June 21,

1994, the Tribe notified the Administrator that EFA effectively

changed Florida's water quality standards. The Tribe alleged that

the Administrator failed to require Florida to comply with the CWA

procedures for review and revision of water quality standards,

prescribed in 40 C.F.R. § 131.20 et seq., and that the EFA violated

the CWA's antidegradation requirements, 33 U.S.C. § 1313(d)(4)(B).

On September 15, 1994, the Administrator informed the Florida

Department of Environmental Protection of the Tribe's allegations.

The Administrator's letter related that if the EFA constituted a

change in state water quality standards, Florida had not submitted

the revised standards to the Administrator for review, as required

under 40 C.F.R. § 131.20(c). Florida responded that the EFA did

not change the state's water quality standards and invited further

discussions with the Administrator if she disagreed with Florida's

assessment. At the time of the commencement of the Tribe's

lawsuit, the Administrator had not disagreed with Florida's

assessment. On April 12, 1995, the Administrator agreed with

Florida's assessment that the EFA did not change the state water

quality standards.

On March l6, l995, the Tribe filed a complaint seeking

injunctive and declaratory relief against the appellees. The Tribe

brought the lawsuit under the CWA citizen suit provision, 33 U.S.C.

§ l365(a), which provides the district court with subject matter
jurisdiction over lawsuits against the Administrator for her

failure to perform any nondiscretionary act or duty under the CWA.

The Tribe also invoked jurisdiction pursuant to federal question,

mandamus, civil actions by Indian tribes, and declaratory

judgments. The Tribe sought to compel the appellees to comply with

the standards and procedures prescribed in the CWA, 33 U.S.C. §

1313(c)(2)(A), and with the procedures for review and revision of

water quality standards prescribed in the Code of Federal

Regulations, 40 C.F.R. § l3l.20, et seq. Specifically, the Tribe

sought to compel the appellees to treat the EFA as a change in

state water quality standards, to require Florida to initiate

notice and public hearings on any such change, and to find the EFA

in violation of the antidegradation requirements of the CWA, 33

U.S.C. § 1313(d)(4)(B). The appellees filed a motion to dismiss

the Tribe's complaint, pursuant to Federal Rule of Civil Procedure

12(b) for lack of subject matter jurisdiction and for failure to

state a claim.

On July 26, l995, the district court dismissed the Tribe's

complaint for lack of subject matter jurisdiction. The district

court noted that a nondiscretionary duty imposed on the

Administrator is a prerequisite for federal jurisdiction under the

CWA's citizen suit provision. The district court ruled that the

Administrator did not have a nondiscretionary duty to treat the EFA

as a change in Florida's water quality standards and propose its

own regulations, or require Florida to initiate public hearings on

Florida's alleged new regulations. Because the state had the

initial duty of promulgating water quality standards, the district
court ruled that the Administrator merely retained a supervisory

role of reviewing the state's submissions. The Administrator's

review of the state water quality standards, according to the

district court, is almost entirely dependent upon the state's own

assessment. The district court explained that Florida did not

consider the EFA as a change in state water quality standards, made

no submission to the Administrator and did not trigger the

Administrator's duty to evaluate the EFA.

ISSUE

Whether the district court erred in dismissing the Tribe's

complaint for lack of subject matter jurisdiction under the CWA

citizen suit provision, 33 U.S.C. § 1365(a).

CONTENTIONS

The Tribe contends that enactment of the EFA effectively

changed Florida's water quality standards and that the district

court should have allowed discovery before dismissing the Tribe's

complaint. Whether Florida changed the water quality standards,

the Tribe argues, required a detailed factual analysis of the

standards under the EFA and a comparison with the standards that

existed prior to the EFA. The Tribe maintains that the change in

standards under the EFA triggered the CWA procedures, requiring the

Administrator to review the EFA and force the state to comply with

the CWA. The Tribe contends that the new standards under the EFA

violate the antidegradation mandate of the CWA, 33 U.S.C. §

1313(d)(4)(B).

Appellees contend that the CWA provisions implicated here

create and confer the type of discretionary duties that courts have
found unreachable under the citizen suit provision. Appellees also

contend that the Administrator does not have a nondiscretionary

duty to enforce the CWA against Florida; that the jurisdictional

ruling in this case did not require the district court to resolve

any disputed facts; that the district court properly treated

appellees' motion as a facial attack on the sufficiency of the

complaint; and that the district court did not have to await

factual development of the record before it could determine

jurisdiction.

DISCUSSION

 We review the dismissal of a complaint for lack of subject

matter jurisdiction de novo. Tamiami Partners, Ltd. v. Miccosukee

Tribe of Indians, 999 F.2d 503, 506 (11th Cir.1993). A clearly

mandated, nondiscretionary duty imposed on the Administrator is a

prerequisite for federal jurisdiction under the CWA citizen suit

provision. Preserve Endangered Areas of Cobb's History, Inc. v.

United States Army Corps of Engineers, 87 F.3d 1242, 1249 (11th

Cir.1996); Scott v. City of Hammond, Ind., 741 F.2d 992 (7th

Cir.1984). Upon review of the record, we find that the district

court erred in its determination that the Administrator had no

mandatory duty to review the EFA and comply with CWA procedures,

thus, precluding citizen suit jurisdiction under § 1365(a). We

hold that subject matter jurisdiction in this case depended on

whether the EFA changed Florida's water quality standards.

 Under the CWA, 33 U.S.C. § 1313, the Administrator has a

mandatory duty to review any new or revised state water quality

standards. See Natural Resources Defense Council v. United States
Environmental Protection Agency, 16 F.3d 1395, 1399 (4th Cir.1993)

("EPA sits in a reviewing capacity of the state-implemented

standards, with approval and rejection powers only."). The

Administrator must determine whether those standards are

scientifically defensible and protective of designated uses.

Natural Resources Defense Council, 16 F.3d at 1401. If the EFA

constituted a change in state water quality standards, the CWA

required Florida to submit the changes to the Administrator. 33

U.S.C. § 1313(c)(2)(A). The Administrator would review the state's

submission, and either approve or disapprove the new or revised

standards. 33 U.S.C. § 1313(c)(3). If the new or revised

standards were inconsistent with CWA requirements, the

Administrator would notify the state and specify the changes to

meet the CWA requirements. 33 U.S.C. § 1313(c)(3). When a state

fails to adopt such changes within ninety days, the Administrator

must "promptly prepare and publish proposed regulations setting

forth a revised or new standard" for the state. 33 U.S.C. §

1313(c)(4). Unless the state adopts a standard consistent with the

CWA within ninety days of the publication, the Administrator must

promulgate the state water quality standards. 33 U.S.C. §

1313(c)(4).

 After careful review, we find that the district court erred

in its jurisdictional determination. The district court

inappropriately relied on Florida's representations that the EFA

did not change Florida's water quality standards. The district

court ruled that because Florida made no submission to the

Administrator, the Administrator had no duty to evaluate the EFA.
Florida's failure to submit any new or revised standards cannot

circumvent the purposes of the CWA. See Scott, 741 F.2d at 998

("the CWA should be liberally construed to achieve its

objectives"). Even if a state fails to submit new or revised

standards, a change in state water quality standards could invoke

the mandatory duty imposed on the Administrator to review new or

revised standards. Scott, 741 F.2d at 995 ("An administrator's

duty to approve or promulgate some water quality standards might be

"nondiscretionary' within meaning of § 1365(a)(2)").

In the absence of action by the Administrator, we conclude

that the district court should have conducted its own factual

findings. Because citizen suit jurisdiction depended on whether or

not the EFA constituted new or revised state water quality

standards, invoking a mandatory duty of the Administrator, the

district court had to decide independently the effect of the EFA on

existing state standards. The district court could not simply

accept Florida's representations. Without determining the effect

of the EFA, the district court could not decide, in this case,

whether jurisdiction existed under the CWA citizen suit provision,

33 U.S.C. § 1365(a). See Lawrence v. Dunbar, 919 F.2d 1525 (11th

Cir.1990) ("the existence of subject matter jurisdiction in fact")

(citations omitted).

The district court should have treated the appellees' motion

to dismiss as a factual attack rather than a facial attack on the

Tribe's complaint for lack of subject matter jurisdiction.

Lawrence, 919 F.2d at 1528-29. Factual attacks on the district

court's jurisdiction challenge jurisdiction in fact, irrespective
of pleadings, allowing parties to submit matters outside the

pleadings, such as testimony or affidavits. The issue of fact here

would be whether the EFA changed Florida's water quality standards,

invoking a mandatory duty of the Administrator, pursuant to the

standards and procedures for review of new or revised state water

quality standards under 33 U.S.C. § 1313 and 40 C.F.R. § 131.20, et

seq. The Tribe contended, and we now accept, that the

jurisdictional question is intertwined with the merits of the

Tribe's claims. Lawrence, 919 F.2d at 1529-30. Given such

circumstances, the district court should apply a summary judgment

standard when ruling on the motion to dismiss as a factual attack

on subject matter jurisdiction. Lawrence, 919 F.2d at 1530.

CONCLUSION

Accordingly, the existence of CWA citizen suit jurisdiction

depended on whether the EFA comprised new or revised state water

quality standards. Because the district court failed to make this

determination, we reverse the district court's dismissal for lack

of subject matter jurisdiction and remand for further proceedings

consistent with this opinion.

REVERSED and REMANDED