ELR Citation: ELR 20214
No(s). 92-4139 (7th Cir. Dec 30, 1993)

The court holds that it lacks jurisdiction to hear a developer's challenge to a U.S. Environmental Protection Agency (EPA) compliance order requiring the developer to cease discharging fill into wetlands without a permit and to restore the wetlands he filled. The court first holds that it may review administrative actions under the Federal Water Pollution Control Act (FWPCA) only after the agency either seeks judicial enforcement of a compliance order or seeks to enforce administrative penalties, neither of which situations is present here. Although the developer's claim is posed as a challenge to EPA's assertion of jurisdiction over the wetlands at issue and not a challenge to the compliance order itself, allowing the challenge would delay the agency's response in the same manner as a challenge to the order. The court next holds that the FWPCA's prohibition on review of preenforcement agency actions also bars review under the Administrative Procedure Act (APA), because APA §701 does not provide jurisdiction where other statutes preclude judicial review. Finally, the court holds that it lacks jurisdiction under the Declaratory Judgments Act because, although that statute empowers federal courts to give declaratory judgments in cases "within its jurisdiction," that language requires that jurisdiction be predicated on some other statute.

Counsel for Plaintiff
Michael Muenich
Hand, Muenich & Wilk
3235 45th St., Highland IN 46322
(219) 924-2640

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

Before POSNER, Chief Judge, COFFEY, Circuit Judge, and ZAGEL, District Judge.^*