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Golden Gate Audubon Soc'y, Inc. v. Corps of Eng'rs

ELR Citation: 18 ELR 20992
Nos. No. C 87-6063 TEH, 700 F. Supp. 1549/27 ERC 1843/(N.D. Cal., 05/06/1988)

The court rules that §505 of the Federal Water Pollution Control Act (FWPCA) authorizes citizen suits against the Corps of Engineers for alleged failures to perform non-discretionary obligations under its dredge and fill program, and that lands filled and converted to dry land after 1975 may still be wetlands subject to the Corps' jurisdiction. In 1986, the Corps determined that a piece of land that had been undergoing filling activities since 1965 is now dry land, and no longer constitutes a wetland subject to the requirements of the dredge and fill program. The Environmental Protection Agency (EPA) subsequently issued a contrary finding that the property did constitute a wetland, and issued a compliance order against the owner. EPA later withdrew its finding and order.

The court first holds that federal subject matter jurisdiction over the issue of the Corps' jurisdictional determination arises from plaintiffs' §505 action against the site owner for allegedly filling the wetland without a permit, since the owner will raise the Corps' decision as a defense. Cases establishing that an anticipated federal defense to a state law claim fails to confer federal subject matter jurisdiction are inapplicable here because plaintiffs' claim itself arises under federal law. The court rules that FWPCA §505(a)(2) authorizes citizen plaintiffs to sue the Corps to enforce its mandatory obligations under the FWPCA. The statute's plain language indicates that §505(a)(2) only authorizes suits against EPA; however, the purpose of the Act, its legislative history, and logic suggest that Congress intended that citizens be able to challenge the erroneous determinations of either agency. Moreover, the Memorandum of Understanding (MOU) between EPA and the Corps concerning §404 jurisdiction divides authority for jurisdictional determinations between the two agencies. To preclude judicial review of all jurisdictional decisions made solely by the Corps under the MOU's division of authority would violate the principle that persons aggrieved by agency actions not be deprived of review in the absence of persuasive evidence of Congress' intent. In addition, to allow FWPCA citizen suits against the Corps is consistent with the scant case law on the issue. The court also holds that the Corps' jurisdictional disclaimer can be characterized as an alleged failure to perform a non-discretionary duty. While the Corps may not have a duty to make jurisdictional determinations concerning sites, once it makes such a determination it must do so correctly. Case law concerning the mandatory or discretionary nature of enforcement decisions is inapposite; the Corps has already investigated the site and made a jurisdictional determination, and concerns about the allocation of agency resources therefore are not implicated.

The court next holds that lands converted and filled to dry land after 1975, the date that the Corps acquired jurisdiction over adjacent wetlands, may still be wetlands "under normal circumstances" subject to the Corps' jurisdiction. The court rules that permitless discharges of fill material made in violation of the FWPCA may not be used to establish the normal circumstances of a site, and holds that the Corps' determination that permitless filling can establish a site's normal circumstances was arbitrary and capricious. To preclude regulatory jurisdiction over all converted wetlands, regardless of when they were converted, would violate congressional intent by allowing developers to engage in illegal filling activities and then to rely on that illegality to evade further compliance with the permit program. The court holds that the jurisdictional issue should be remanded to the Corps rather than EPA. EPA rescinded its earlier jurisdictional finding, and the Corps' determination remains in effect. Moreover, under the interagency MOU, the Corps is responsible for making the jurisdictional decision concerning this site because it has not been designated as a special case to be decided by EPA. The court declines to dismiss plaintiffs' causes of action against the site owner and against EPA for failure to enforce the owner's compliance with the permit program. The court dismisses as moot plaintiffs' claim against EPA and the Corps for failure to make a wetlands determination.

Counsel for Plaintiff
Allan Waltner, Thomas Roy Gorman
Gorman & Waltner
1419 Broadway Ave., Suite 419, Oakland CA 94612
(415) 465-4494

Counsel for Defendant
Gale Cooper
U.S. Environmental Protection Agency
Office of General Counsel
401 M St. SW, Washington DC 20460
(202) 475-8040