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National Wildlife Fed'n v. Adamkus

ELR Citation: 27 ELR 20175
Nos. 4:95-CV-131, 936 F. Supp. 435/(W.D. Mich., 05/28/1996)

The Court holds that it lacks jurisdiction over environmental groups' claims that the U.S. Environmental Protection Agency (EPA) violated the Federal Water Pollution Control Act (FWPCA) and the Administrative Procedure Act (APA) when it approved revisions to Michigan's wetlands program. When EPA requested comments on the revisions, the groups responded that substantial changes to the program, made since its original approval, were sufficient to warrant withdrawal of that approval. The court first holds that EPA did not have a mandatory duty to commence proceedings to disapprove the program. On its face, FWPCA §404(i) only triggers a non-discretionary duty to withdraw approval once EPA has determined after public hearing that the state's administration of the program fails to comply with the FWPCA and the Agency notifies the state and gives it a reasonable amount of time to take corrective action. EPA regulations provide that the Agency has discretion to commence withdrawal proceedings in response to a petition from an interested person. EPA's decision to approve the revisions demonstrates that EPA determined that withdrawal proceedings were unnecessary. The court rejects the environmental groups' contention that the state's program submission was incomplete and that EPA cannot determine a program's sufficiency if the submission is incomplete. It is unclear whether the complete program submission required when a state seeks to administer a §404 program is required when a state attempts to revise its already existing program.

The court next dismisses the groups' claim that EPA's refusal to respond to their comments on program changes violated the FWPCA. Although an EPA regulation requires EPA to respond in writing to any petition to commence withdrawal proceedings, the regulation does not contain an explicit timetable for that response. The court also dismisses the groups' claims that EPA's failure to respond to their comments violated the APA, because EPA's failure to respond is not final agency action and the court lacks a meaningful standard against which to measure the significance of comments to which EPA responded as opposed to the comments EPA considered insignificant.

Counsel for Plaintiffs
Mark Van Putten
Great Lakes Natural Resource Center
1451 Green Rd., Ann Arbor MI 48105
(313) 994-3331

Counsel for Defendants
Joshua M. Levin
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000