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National Wildlife Fed'n v. Laubscher

Citation: 17 ELR 20891
No. No. G-86-37, (S.D. Tex., 02/23/1987) Magistrate's ruling on jurisdiction

A magistrate rules that decisions made by the Environmental Protection Agency (EPA) and the Corps of Engineers whether to apply the Federal Water Pollution Control Act (FWPCA) to isolated wetlands are discretionary, and thus FWPCA § 505 does not provide a private right of action to challenge such decisions. EPA and the Corps decided not to require a permit under § 404 for the filling of an isolated pond in Texas. Noting that, pursuant to the Supreme Court's decision in Middlesex County Sewerage Authority v. National Sea Clammers Association, 11 ELR 20684, there are no private rights of action under the FWPCA other than those specifically enumerated in § 505, the citizen suit provisions, the court holds that § 505 does not provide the right to challenge the agencies' discretionary decisions. Moreover, a suit alleging a violation of the FWPCA can only be brought under § 505 and cannot be maintained under the federal question statute. The court rules that the agencies' decision not to require a permit for filling navigable waters is discretionary.

[The complaint from this litigation is digested at ELR PEND. LIT. 65890.]

Counsel for Plaintiff
Jerry Jackson
National Wildlife Federation
1412 6th St. NW, Washington DC 20036
(202) 637-3736

Counsel for Defendants
Lawrence R. Liebesman
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2281