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Preserve Endangered Areas of Cobb's History, Inc. v. Corps of Eng'rs

ELR Citation: 26 ELR 21039
Nos. 1:95-CV-1394-WCO, 915 F. Supp. 378/(N.D. Ga., 08/24/1995) FWPCA claim

The court holds that the Federal Water Pollution Control Act (FWPCA) does not authorize citizen suits against the U.S. Army Corps of Engineers (the Corps) and that the U.S. Environmental Protection Agency's (EPA's) decision not to veto the Corps' issuance of an FWPCA §404 permit for a highway project is unreviewable. The court first holds that the FWPCA authorizes citizen suits against EPA, but not against the Corps. Absent a clear statement of congressional intent, sovereign immunity precludes a lawsuit against the Corps, and no such statement is in FWPCA §505(a)(2). The court next holds that the plaintiffs' claims alleging Administrative Procedure Act (APA) violations under the National Environmental Policy Act, the National Historic Preservation Act, and the Endangered Species Act may proceed. The court then holds that EPA's decision not to veto the Corps' issuance of the §404 permit is a discretionary function that is unreviewable under the FWPCA and the APA. FWPCA §404(c) authorizes EPA to prohibit, deny, or restrict any defined area's use for specification, but does not require EPA to do so. The word "authorize" implies a discretionary delegation of duty. The court next holds that it will reconsider its June 30, 1995, discovery order requiring that the parties collect additional evidence to elucidate the court's review of the administrative record. The court, in modifying its previous order, notes that initially it will conduct a thorough review of the administrative record. The court will order the parties to produce further evidence if it determines that the record does not support the actions taken, is materially incomplete, did not consider certain factors, or manifests bad faith or a dereliction of duty in its preparation. Finally, in light of the Corps' motion to dismiss the plaintiffs' FWPCA claims, the court extends the time in which the Corps must file its answer.

[A subsequent decision in this litigation is published at 26 ELR 21042.]

Counsel for Plaintiff
Robert B. Remar
Kirwan, Goger, Chesin & Parks
2600 The Grand
75 14th St., Atlanta GA 30309
(404) 873-8000

Counsel for Defendant
Mark A. Brown
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000