ELR Citation: ELR 20795
No(s). 86-0622-Z (D. Mass. Jul 2, 1986)

The court rules that the veto by a Regional Administrator (RA) of the Environmental Protection Agency (EPA) of a Federal Water Pollution Control Act (FWPCA) §404 permit issued by the Corps of Engineers for construction of a shopping mall in Sweedens Swamp, a wetland in Massachusetts, was valid even though EPA regulations were violated. Section 404(c) authorizes the RA to veto a §404 permit issued by the Corps if he determines, after public hearing, that a proposed project would have an adverse effect on navigable waters. Although the FWPCA imposes no deadlines for the issuing of the RA's determination, EPA's implementing regulations require a decision within 30 days of the public hearing. The court rules that compliance with this regulatory deadline is not jurisdictional. Therefore, even though the RA did not meet his regulatory deadline, the case was mooted when he issued his overdue decision.

Counsel for Plaintiffs
Michael S. Gardiner
Mintz, Levin, Cohn, Ferris, Glovsky & Popeo
One Financial Center, Boston MA 02111
(617) 542-6000

Counsel for Defendants
Richard E. Welch, Ass't U.S. Attorney
1107 John W. McCormack Federal Bldg., USPO & Cthse., Boston MA 02109
(617) 223-3181

Lawrence R. Liebesman, George B. Henderson
Environmental Defense Section
Land and Natural Resources Division
Department of Justice, Washington DC 20026-3986
(202) 633-2327

Counsel for Defendant-Intervenors
Peter Shelley
Conservation Law Foundation of New England
3 Joy St., Boston MA 02108
(617) 742-2540