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The Swamps-On-a-Hill Have Citizens On a Roll: The Fourth Circuit Advances the Citizens' Cause in National Wildlife Federation v. Hanson

January 1989

Citation: 19 ELR 10003

Issue: 1

Author: Katherine P. Ransel

On October 14, 1988, the Court of Appeals for the Fourth Circuit issued an attorneys fees ruling1 clarifying citizens' rights to challenge Corps of Engineers' determinations that areas are not wetlands and thus not subject to the permitting requirements of § 404 of the Federal Water Pollution Control Act (FWPCA or the Act).2 The decision comes in a case that may be the largest enforcement action, in terms of acreage, ever brought by government or citizenry.3 It was brought by the National Wildlife Federation and the Environmental Policy Institute, two national conservation organizations, and six North Carolina environmental citizen groups.4

The Fourth Circuit panel unanimously ruled that the Corps of Engineers (the Corps) has a nondiscretionary duty to regulate dredged or fill material, and to fulfill that duty it must make "reasoned" wetlands determinations. The Corps has, the panel ruled, "a mandatory duty to ascertain the relevant facts, correctly construe the applicable statutes and regulations, and properly apply the law to the facts."5 This holding means that citizens may bring suit pursuant to § 505(a)(2) of the FWPCA to challenge wetlands determinations — and presumably other jurisdictional decisions — rendered by the Corps and/or the Environmental Protection Agency(EPA) under the Act's § 404 program.6 This issue has never before been squarely addressed by a circuit court of appeals.

Ms. Ransel, currently a senior attorney with the Environmental Law Institute, was lead counsel for the plaintiffs in the district court litigation on the merits and the district court fee litigation. The opinions expressed in this Dialogue do not necessarily reflect the views of the Institute.

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