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United States v. Marathon Dev. Corp.

Citation: 19 ELR 20683
No. No. 88-1619, 867 F.2d 96/29 ERC 1145/(1st Cir., 02/08/1989)

The court holds that states have the authority to enforce their own more stringent water quality standards by denying certification under § 401 of the Federal Water Pollution Control Act (FWPCA) for a general permit, and that the Army Corps of Engineers' headwaters nationwide permit is not applicable in Massachusetts. The defendants, convicted under the FWPCA's criminal provisions, had argued that their wetlands filling activities were protected by the Corps' headwaters nationwide general permit, which allows certain categories of activities that the Corps has determined will do little or no harm to the environment to be conducted without an individual permit under FWPCA § 404. The court first rules that the FWPCA authorizes states to enforce their own more stringent water quality standards by denying certification to a nationwide permit. The legislative history of FWPCA § 401 confirms that Congress intended to give the states veto power over federal permit authority for activities that could affect a state's water quality, and both case law and commentary are consistent with this interpretation. Nothing in FWPCA § 404(e), the statutory authority for general permits, suggests that states have any less authority with respect to general permits than they have with respect to individual permits. Reading §§ 401 and 404(e) together clearly indicates that the state certification requirement of § 401 applies to § 404(e) nationwide permits in the same manner that it applies to any other § 404 permit.

The court next holds that the nationwide permit is not applicable in Massachusetts, and thus the defendants were required to apply for an individual § 404 permit before filling in the wetlands. There is no dispute that Massachusetts had denied water quality certification of the headwaters nationwide permit. FWPCA § 401(a) provides that no permit shall be granted if the state has denied certification and, the court holds, this applies to general as well as individual permits. The Corps itself has given public notice that the headwaters permit is not applicable in Massachusetts, an interpretation that is reasonable and entitled to deference. That the headwaters permit regulation does not [19 ELR 20684] explicitly condition its applicability on state water quality certification is beside the point, since the statute itself prohibits the issuance of a nationwide permit if state water quality certification has been denied. The court holds that the FWPCA provision allowing the states to impose their own more stringent water quality standards does not violate constitutional guarantees of equal protection under the law. Finally, the court holds that state court is the proper forum for a challenge to the state's § 401 water quality certification process, since a state law determination is involved.

Counsel for Appellants
Stephen R. Delinsky
Fine & Ambrogne
Exchange Place, Boston MA 02109
(617) 367-0100

Counsel for Appellee
Richard E. Welch III, Ass't U.S. Attorney
1107 John W. McCormack, P.O. & Courthouse, Boston MA 02109-4583
(617) 223-9400

Edward J. Shawaker
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-2000

Martin R. Cohen, Ass't Chief Counsel for Litigation
Army Corps of Engineers, 20 Massachusetts Ave NW, Washington DC 20314
(202) 272-0041

Before CAMPBELL, Chief Judge, COFFIN and BOWNES, Circuit Judges.