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Puerto Rico v. Alexander

Citation: 7 ELR 20751
No. No. 76-1216, 438 F. Supp. 90/10 ERC 1575/(D.D.C., 08/12/1977)

Section 404 of the Federal Water Pollution Control Act (FWPCA) and the Corps of Engineers' regulations providing for the issuance of permits to discharge dredged and fill material apply to unnavigable waters within Puerto Rico. The court rules that plaintiff has standing to sue under the Declaratory Judgment Act for pre-enforcement review of the regulations to determine the scope of its sovereignty over waters within its borders. Moreover, the claim is ripe because the regulations are final. Defendants' motion to dismiss for lack of jurisdiction must therefore be denied. Moving to the merits, the court rejects the contention that §§ 7 and 9 of the Puerto Rican Federal Relations Act make the regulations inapplicable to Puerto Rico's unnavigable waters and grants defendants' motion for summary judgment. The court concludes that the FWPCA Amendments of 1972 do not fall within the limited exception for locally inapplicable federal statutes provided by these two sections. The legislative history of the FWPCA indicates that federal regulatory jurisdiction under the Act was to be extended to the full extent permitted by the Commerce Clause. It would be impractical to allow unregulated pollution in Puerto Rico's upstream unnavigable waters while attempting to regulate under federal jurisdiction pollution in the downstream waters. Federal regulation of navigable waters without concurrent regulation of their unnavigable tributaries is inconsistent with the congressional intent and policy of the FWPCA.

Counsel for Plaintiff
Carlos Shine, Ass't Attorney General; Michael Veve
Box 192, San Juan PR 00902
(809) 722-5210

Counsel for Defendants
Earl Salo
Department of Justice, Washington DC 20530
(202) 737-8200