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Stewart v. Potts

ELR Citation: 28 ELR 20574
Nos. G-96-282, 983 F. Supp. 678/(S.D. Tex., 10/30/1997)

The court holds that environmental activists challenging the construction of a golf course in Lake Jackson, Texas, may not bring a Federal Water Pollution Control Act (FWPCA) citizen suit action against the U.S. Army Corps of Engineers or bring Administrative Procedure Act (APA), National Environmental Policy Act (NEPA), and FWPCA claims against a city. The court first holds that the activists cannot maintain suit against the Corps under FWPCA §505(a)(1) for an alleged violation of the Corps' duty to administer the §404 permit program. Section 505(a)(1) provides a private cause of action only against regulated parties for substantive violations of the FWPCA. In its administrative capacity, the Corps is not a regulated party that can violate a substantive provision of the FWPCA. The court then holds that the federal defendants owed no duty to the activists that would provide for review of the activists' claims under the Mandamus Act. The activists have failed to demonstrate that the Corps has a duty to perform a specific, ministerial act, devoid of the exercise of judgment or discretion. While the Corps has a duty to follow the proper procedures in deciding whether to grant a §404 permit, its decision is entitled to deference. The court notes that while its holding dismisses the activists' claims against the federal defendants asserted under the FWPCA and the Mandamus Act, the activists' action may be properly brought under the APA.

The court next holds that the APA and NEPA do not provide the activists with a cause of action against the city. The city is a nonfederal entity and, therefore, the court lacks jurisdiction over the claims. The court also holds that the activists have failed to plead a prima facie case against the city for violations of the FWPCA. The activists have not alleged that the city is currently in violation of, or even that the city has ever violated, any effluent standard or order. A general, vague statement that an adjacent landowner has violated the FWPCA utterly fails to state a claim against the city for violating the FWPCA. Last, the court holds that the activists have no independent jurisdictional basis under which they can seek declaratory relief because the court has determined that it has no jurisdiction under the FWPCA.

Counsel for Plaintiff
James B. Blackburn Jr.
Blackburn & Carter
3131 Eastside St., Ste. 450, Houston TX 77098
(713) 524-6628

Counsel for Defendant
Mellie M. Billingsley
U.S. Army Corps of Engineers
P.O. Box 1229, Galveston TX 77553
(409) 766-3847

Lois J. Schiffer, Eileen T. McDonough
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000