Golden Gate Audubon Society, Inc. v. United States Army Corps of Engineers

No. C87-6063 TEH (N.D. Cal. May 6, 1988,)

The court holds that § 505(a)(1) of the Federal Water Pollution Control Act (FWPCA) and the federal question statute grant federal subject matter jurisdiction over a challenge to a Corps of Engineers wetlands determination, and rules that lands filled and converted to dry land after 1975 may still be wetlands subject to the Corps' jurisdiction. In 1986, the Corps determined that a piece of land that had been undergoing filling activities since 1965 is now dry land, and no longer constitutes a wetland subject to the requirements of the dredge and fill program. The Environmental Protection Agency (EPA) subsequently issued a contrary finding that the property did constitute a wetland, and issued a compliance order against the owner. EPA later withdrew its finding and order.

The court first holds that federal subject matter jurisdiction over the issue of the Corps' jurisdictional determination arises from plaintiffs' § 505(a)(1) action against the site owner for allegedly filling the wetland without a permit, since the owner will raise the Corps' decision as a defense. Cases establishing that an anticipated federal defense to a state law claim fails to confer federal subject matter jurisdiction are inapplicable here because plaintiffs' claim itself arises under federal law. The court holds that it also has jurisdiction under 28 U.S.C. § 1331, the general federal question jurisdiction statute. The Administrative Procedure Act (APA) authorizes suits against federal agencies by persons aggrieved by agency action, and § 1331 provides the district court with jurisdiction to hear challenges under the APA.

The court next holds that lands converted and filled to dry land after 1975, the date that the Corps acquired jurisdiction over adjacent wetlands, may still be wetlands "under normal circumstances" subject to the Corps' jurisdiction. The court rules that permitless discharges of fill material made in violation of the FWPCA may not be used to establish the normal circumstances of a site, and holds that the Corps' determination that permitless filling can establish a site's normal circumstances was arbitrary and capricious. To preclude regulatory jurisdiction over all converted wetlands, regardless of when they were converted, would violate congressional intent by allowing developers to engage in illegal filling activities and then to rely on that illegality to evade further compliance with the permit program. The court holds that the jurisdictional issue should be remanded to the Corps rather than EPA. EPA rescinded its earlier jurisdictional finding, and the Corps' determination remains in effect. Moreover, under the interagency MOU, the Corps is responsible for making the jurisdictional decision concerning this site because it has not been designated as a special case to be decided by EPA. The court declines to dismiss plaintiffs' causes of action against the site owner and against EPA for failure to enforce the owner's compliance with the permit program. The court dismisses as moot plaintiffs' claim against EPA and the Corps for failure to make a wetlands determination.

[This opinion replaces the court's earlier opinion published at 18 ELR 20992.]

Counsel for Plaintiffs
Allen Waltner
Gorman & Waltner
1419 Broadway Ave., Suite 419, Oakland CA 94612
(415) 465-4494

Zach Cowan
66 Mint St., San Francisco CA 94103
(415) 543-2627

Counsel for Defendant
Gale Cooper
U.S. Environmental Protection Agency
Office of General Counsel
401 M St. SW, Washington DC 20460
(202) 475-8040

Karen Egbert
Environmental Defense Section, Department of Justice
P.O. Box 23968
Washington DC 20026
(202) 786-4786

[18 ELR 21401]

Henderson, J.:

Order Amending Prior Opinion

This matter comes before the Court on the Federal Defendants' and the Port of Oakland's ("Port") motions for clarification of our May 6, 1988 Order. After careful consideration of the parties' papers, we grant the federal defendants' motion in part, deny it in part, and deny the Port's motion.

1. Federal Defendants' Motion

The Federal Defendants object primarily to our finding of subject matter jurisdiction under Section 505(a)(2) of the Clean Water Act, 33 U.S.C. § 1365(a)(2). That subsection authorizes citizen suits against the EPA for failure to perform a nondiscretionary duty. The Federal Defendants argue that the Corps of Engineers' ("Corps") erroneous jurisdictional disclaimer may not be reviewed under that subsection, because the Corps' determination did not constitute a failure to perform a mandatory duty. Instead, they argue that the determination was an abuse of discretion, reviewable under the Administrative Procedure Act, 5 U.S.C. § 706(a)(2). Thus, we should have predicated jurisdiction upon 28 U.S.C. § 1331, the general federal question statute.

We agree with the Federal Defendants that Section 505(a)(2) does not provide the Court with jurisdiction to review the Corps' decision. See Hough v. Marsh, 557 F. Supp. 74, 78 [13 ELR 20610] (D. Mass. 1982). We also agree that Section 1331 does provide us with jurisdiction. See Oregon Natural Resources Council v. United States Forest Service, 834 F.2d 842, 852 n.16 [17 ELR 20966] (9th Cir. 1987). Therefore, we amend the prior Order by deleting the portion that discusses subject matter jurisdiction under section 505; we also insert a new section finding jurisdiction under the APA and section 1331.

This Order does not amend our finding that 33 U.S.C. § 1365(a)(1) empowers us to review the jurisdictional disclaimer. See May 6 Order at 4-6. Indeed, we are not certain that the Federal Defendants oppose that finding.¹ Thus, we do not resolve whether a fee award, if any, should be granted under the Clean Water Act or the Equal Access to Justice Act. 28 U.S.C. §§ 2412 et seq. That issue is presently not before us.²

Finally, we do not follow the Federal Defendants' suggestion to amend the prior Order's treatment of the "normal circumstances" language found in 33 C.F.R. § 328.3(b). Order at 16-22. The Federal Defendants incorrectly construe our Order as an all-encompassing definition of the normal circumstances that would apply in other cases posing different disputes about the meaning of the regulation. Our discussion of that language must be read in the context of the facts before us; specifically, the problem of filling in order to destroy jurisdiction. Other factual situations mentioned by the Federal Defendants, such as filling pursuant to a permit or exemption, were not before us.

2. Port's Motion

The Port also moves to "clarify" a portion of our order addressing the meaning of "normal circumstances." They request instruction [18 ELR 21402] on whether the Corps may uphold its prior jurisdictional disclaimer upon a finding that the site was not abandoned after it was allegedly filled. Plaintiffs argue in response that there is no need for such clarification. In the alternative, they contend that the question of abandonment is irrelevant; if the site now contains wetlands characteristics, the Corps should exert its jurisdiction.

Our Order does not address the issue of abandonment; it does not explicitly or implicitly instruct the Corps on how to treat that issue. Instead, we vacated the jurisdictional disclaimer because the Corps made no finding that the site was converted to dry land before 1975. Thus, the Port is not really asking for "clarification" of our prior order; it is instead asking us to advise the Corps on how to interpret its own regulations regarding a different, albeit related issue.

We recognize that the issue of abandonment may be a relevant one during the remand proceedings. However, it would be highly improper to now make a ruling on that issue; such gratuitous advice violates the doctrine of primary jurisdiction and, arguably, the "case or controversy" requirement of Article III.³

Therefore, we deny the Port's motion for clarification.

IT IS SO ORDERED.

Henderson, J.:

Order

This matter comes before the Court on defendant Port of Oakland's (hereafter "Port") motion to dismiss, various federal defendants' motion to dismiss and stay discovery, and plaintiffs' motion for summary judgment on their second cause of action. After careful consideration of the parties' papers and oral arguments, including motions for clarification, the Court vacates the Corps' prior jurisdictional disclaimer and remands the wetlands determination to the Army Corps of Engineers ("Corps") with the instructions provided below. The Court retains jurisdiction over the action, stays further adjudication of the dismissal motions of the first, second and fourth causes of action, but dismisses the third cause of action with prejudice. The Court also grants plaintiffs' summary judgment motion on the second cause of action, and stays all discovery in this action.

Factual Background

This case concerns the Port's dredging and filling of the "Distribution Center" (hereafter "center" or "site") adjacent to the San Leandro Bay. It asks the question: "at which point water ends and land begins." United States v. Riverside Bayview Homes, Inc., 106 S. Ct. 455, 462 [16 ELR 20086] (1985).

The Port allegedly began dredging and filling the waters of the San Leandro Bay in 1965, prior to the passage of the Clean Water Act. 33 U.S.C. §§ 1251 et seq. During the mid-60's and early 1970's, the Corps administered a permit program under Section 10 of the Rivers and Harbors Act of 1899. 33 U.S.C. § 403. The Corps had advised the Port that the site was not within their jurisdiction. According to the Port, by 1972, the year the Clean Water Act was enacted, "the entire site had been completely filled" and the "area was transformed into dry land." Port's Memorandum of Points and Authorities in Opposition to Plaintiffs' Summary Judgment Motion ("Port's Memorandum") at 5.¹ From 1972 through 1986, the Port continued to improve the basement fill and raise the elevation of the site.

In late 1986, the Corps inquired into the Port's filling activities. Representatives of the Corps met with the Port's staff to visit the site and discuss its development. On November 7, 1986, Lt. Col. Andrew Perkins, Jr., the District Engineer of the Corps, orally concluded that the site had been converted into dry land. Since the Corps' jurisdiction only extends to navigable waters, 33 U.S.C. § 1344(a), the Corps determined that they had no jurisdiction over the site. Accordingly, the Corps informed the Port that they were not required to apply for a permit before continuing with the filling activities.

Following this "determination," the Environmental Protection Agency ("EPA") inspected the site and reviewed a study prepared by an expert on wetlands. On January 12, 1987, the EPA found that the site did contain wetlands, and issued Findings of Violation and Order for Compliance against the Port.

Soon thereafter, the Port filed a lawsuit against the EPA, seeking withdrawal of the EPA's findings. City of Oakland v. EPA, No. C 87-3516 RHS. During this suit, the Port deposed Lt. Col. Perkins, who stated that he had indeed made a jurisdictional finding on November 7 by orally informing the Port that the site did not contain wetlands. Prior to this deposition, the EPA apparently believed that the Corps had not made a jurisdictional finding. When it learned from the Perkins' deposition that the Corps had disclaimed jurisdiction on November 7, the EPA voluntarily withdrew its January 12 Findings and Order, declaring them null and void.

Following the EPA's withdrawal of its Order, plaintiffs, three prominent environmental groups, filed this lawsuit. The complaint states four causes of action. In the first cause of action, plaintiffs allege that the site does contain wetlands, and the Port's continued dredging and filling violates 33 U.S.C. § 1311(a), which prohibits the discharge of pollutants into navigable waters without a permit. In the second cause of action, plaintiffs sue the Corps for erroneously deciding that the site does not contain wetlands. They also allege that the Corps violated procedural regulations in making the determination. In the third cause of action, plaintiffs sue the EPA and the Corps for failing to assert jurisdiction over the site; in the fourth cause of action, plaintiffs sue the EPA for failing to enforce the Port's compliance with the permit program. 33 U.S.C. § 1344(a).

The Port has moved to dismiss all four causes of action. They argue that plaintiffs fail to state a cause of action against the Port for illegal permitless discharge, since the Corps determined that no permit was required. They also contend that the second, third, and fourth causes fail to allege federal subject matter jurisdiction.

Plaintiffs, on the other hand, move for summary judgment on their second claim, arguing that the Corps erroneously found that the site contained no wetlands. Plaintiffs also seek an order remanding that determination to the EPA.

The federal defendants also seek a remand, but they argue that the Corps, not the EPA, should reconsider the wetlands determination. The federal defendants also move for a stay on all discovery pending renewed consideration by the Corps.

1. Federal Subject Matter Jurisdiction

Before turning to the merits of the parties' disputes, the Court must first determine whether it has subject matter jurisdiction over the central issue in the case: the propriety of the Corps' determination that the site contained no wetlands.

In their complaint, plaintiffs assert several bases for federal jurisdiction. First, plaintiffs claim that since they have sued the Port under the citizen standing provision in 33 U.S.C. § 1365(a)(1) for violation of the Act, and since the Port will rely on the Corps' jurisdictional disclaimer as a defense to the enforcement claim, the propriety of that determination is placed in issue.

The Port characterizes this jurisdictional argument as "bootstrapping." They contend that the well-pleaded complaint rule bars plaintiffs from relying upon an anticipated defense to confer federal subject matter jurisdiction. Louisville & N.R. Co. v. Mottley, 211 U.S. 149 (1908).

That rule has no applicability to this case. The rule governs cases in which a plaintiff raises only state law causes of action in her complaint, and seeks federal jurisdiction on the grounds that the defendant will advance a defense that raises federal law questions. The Supreme Court has held that if a plaintiff fails to raise federal questions in her complaint, the federal court must dismiss the action, no matter how likely it is that the defendant will raise and litigate federal claims. Id. at 152.

In this case, the enforcement cause of action itself arises under federal law. 31 U.S.C. § 1365(a)(1). Since the Court has jurisdiction over that claim, we have "jurisdiction" to review all pertinent issues necessary for adjudicating that cause of action, including the propriety of the Corps' jurisdictional disclaimer. Thus, the Port is factually incorrect that plaintiffs are relying on an anticipated defense to confer federal jurisdiction; they already have alleged federal jurisdiction under section 1365(a)(1).²

[18 ELR 21403]

Even without the enforcement cause of action, however, we also have jurisdiction under 28 U.S.C. § 1331, the general federal question jurisdiction statute. The Administrative Procedure Act, 5 U.S.C. § 702, provides that "[a] person . . . adversely affected or aggrieved by agency action . . . is entitled to judicial review thereof." Section 1331 provides the district court with jurisdiction to hear challenges under the APA. Oregon Natural Resources Council v. U.S. Forest Service, 834 F.2d 842, 852 n. 16 [17 ELR 20966] (9th Cir. 1987). It is well settled that the court may review challenges under the APA for "agency action that relate[s] to the CWA." Id. at 850.

Therefore, we have jurisdiction under Section 505 of the CWA, 33 U.S.C. § 1365(a)(1), or under 28 U.S.C. § 1331 to review this challenge. The Port's motion to dismiss the second cause of action is denied, and we proceed to determine the remaining issues.

2. The Jurisdictional Disclaimer

As noted, plaintiffs seek summary judgment on their second cause of action against the Corps for making an allegedly erroneous wetlands determination. Though the Corps has moved to remand the action, we nevertheless will review the Corps' prior order since it represents final agency action under the Administrative Procedure Act, 5 U.S.C. § 704, and because the Port is presently relying on that determination as a defense to liability under the first cause of action.³

We review the wetlands determination under section 706(a)(2) of the APA. Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897, 904 [13 ELR 20942] (9th Cir. 1983). But see Leslie Salt Co. v. United States, 660 F. Supp. 183 [17 ELR 21006] (N.D. Cal. 1987), ordering de novo review. Section 706(a)(2) provides that the reviewing court shall set aside agency findings only if they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." While this standard of review is deferential to the agency, courts may not abdicate their responsibility to review the agency's action under this standard by rubberstamping the agency's conclusions. See, e.g., Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29 [13 ELR 20672] (1983), in which the Supreme Court vacated the National Highway Traffic Safety Administration's ("NHTSA") rescission of a rule mandating the installation of passive restraints in automobiles, since NHTSA failed to review all relevant evidence and made a clear error of judgment in rejecting the safety benefits of automatic seatbelts. Instead, the arbitrary and capricious standard calls upon courts to make a "searching and careful" review of the record to determine whether the agency's decision was based on a consideration of the relevant facts" and whether "there has been a clear error of judgment." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 [1 ELR 20110] (1971).

Plaintiffs contend that the Corps incorrectly construed the regulatory definition of wetlands. Under 33 C.F.R. § 328.3(b), wetlands are defined as:

those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.

This definition, promulgated in 1977, amended a prior definition. The Corps advanced two somewhat contradictory reasons for its amending of the prior definition. On the one hand, the amendment was intended to "respond to those situations in which an individual would attempt to eliminate permit review requirements of Section 404 by destroying the aquatic vegetation." 42 Fed. Reg. at 37128. The Corps found that "[s]everal such instances of destruction of aquatic vegetation in order to eliminate Section 404 jurisdiction actually have occurred." Id. The Corps then stated that "even if this destruction occurs, the area still remains as part of the overall aquatic system intended to be protected by the Section 404 program." Id.

On the other hand, the Corps also stated that it did "not intend, by this clarification, to assert jurisdiction over those areas that once were wetlands and part of an aquatic system, but which, in the past, have been transformed into dry land for various purposes." Id.

The Corps' application of this regulation to the distribution center is expressed in the January 23, 1987 letter from acting District Engineer Kenneth H. Clow to Thomas Clark, the Port's attorney. The Corps states that the site "does contain areas which are biological wetlands." Letter at 1. Nevertheless, the Corps determined that "those areas would not be wetlands 'under normal circumstances'" since the "'normal circumstances' for these areas is that they are part of a longstanding and ongoing fill project" in which the wetlands appear between dormant stages of the project. Id. The Corps found that the site had been filled at least once over the years, and that the periodic wetland vegetation appears as a result of "the practice of filling only small areas at a time." Id. at 2.

In essence, the Corps found that the filling of the wetlands, and its transformation from wet to dry land, constitutes the normal circumstances of the site. In defending this interpretation of the normal circumstances language, the Port relies heavily on the Corps' regulatory statement that it did not intend to "assert jurisdiction over the areas that once were wetlands and part of an aquatic system, but which, in the past have been transformed into dry land for various purposes." 42 Fed. Reg. at 37128. It also relies on the Corps' recent regulatory guidance letter, in which the Corps states that "if a former wetland has been converted to another use" and "that use alters its wetlands characteristics to such an extent it is no longer a 'water of the United States,'" the Corps will not assert jurisdiction over that site. Regulatory Guidance Letter No. 86-9, August 27, 1986 at 2.

The Port argues that this languages exempts them from the permit requirement. The Port contends that since it allegedly converted the area into another use and altered its wetland characteristics, the Corps correctly disclaimed jurisdiction over the site.⁴

We believe the Port has read this language too broadly. That language must only apply to those situations in which wetlands were converted to dry land before 1975, the date the Corps acquired jurisdiction over adjacent wetlands. See description of interim regulation, 42 Fed. Reg. at 37124. Without this temporal limitation on the language, a developer could surreptitiously fill a site to destroy jurisdiction, and then avail itself of this "conversion" exemption from the permit requirement. Thus, this language would permit the very evil that the regulation is intended to prevent: the destruction of wetlands to eliminate the permit requirement. 42 Fed. Reg. at 37128.

This temporal limitation on that language is consistent with the Corps' purpose in promulgating the normal circumstances regulation. The normal circumstances regulation clarified and broadened the 1975 interim regulation. 42 Fed. Reg. at 37128. In broadening the definition, the Corps undoubtedly wished to assure developers that it did not intend to retroactively assert jurisdiction over sites that had previously been converted to dry land by the time the 1975 regulation was enacted. This language responds to that concern.⁵

[18 ELR 21404]

Moreover, the Port's interpretation of the normal circumstances language and the conversion exemption violates congressional intent. Congress passed the permit review program as part of a "comprehensive legislative attempt 'to restore and maintain the chemical, physical, and biological integrity of the nation's waters.'" United States v. Riverside Bayview Homes, Inc., 106 S. Ct. 455, 462 [16 ELR 20086] (1985), citing 33 U.S.C. § 1251. That objective "incorporated a broad, systemic view of the goal of maintaining and improving water quality." 106 S. Ct. at 462. Congress intended to preserve "'the natural structure and function of ecosystems,'" id., quoting H.R. Rep. No. 92-911, p. 76 (1972), and therefore "chose to define the waters covered by the Act broadly." 106 S. Ct. at 462. Congress achieved that goal in part by prohibiting the discharge of pollutants without a permit. 33 U.S.C. § 1311.

Allowing developers to illegally discharge fill materials without a permit and then rely upon that illegality to evade further compliance with the permit program eviscerates this central feature of the CWA. Therefore, we hold that permitless discharges of fill material that are in violation of the CWA may not be used to establish the normal circumstances of a site. Thus, we find that the Corps' determination that permitless filling can establish the site's normal circumstances is arbitrary, capricious, and contrary to law.

The Port has a fallback argument: they contend that even if the unauthorized filling may not establish the normal circumstances of the site, the site was converted into dry land by 1975, the year the Corps acquired jurisdiction over adjacent wetlands. However, the Corps never made a finding that the site was converted into dry land in 1975.⁶ Instead, the Corps found that the Port began filling in 1965, filled it slowly in accordance with standard engineering practice, and had never abandoned the project. Clow letter at 1. The Corps also concluded that the entire area had been filled, but it did not state when the site had been filled. Id.

Thus, the Corps' findings do not adequately recognize or reconcile the competing tensions of the regulatory definition. If in fact the Port had not transformed the site into dry land by 1975, and instead was eliminating section 404 jurisdiction by filling the site, the Corps was precluded from finding that the filled site constituted its normal circumstances. If the site had been transformed into dry land by 1975, however, the Corps could find that the dry land was its normal circumstance, since the regulatory definition does not retroactively extend the Corps' jurisdiction over areas that have been transformed into dry land.

If the Port wishes to rely on its filling activities, it must show that the site was dry land in 1975. Accordingly, we vacate the Corps' prior determination. We also remand the issue to the Corps to reconsider the extensive body of evidence regarding the history and present condition of the site in light of this Court's order.

3. Remand Issue

As previously noted, plaintiffs urge us to remand the issue to the EPA and not the Corps. The federal defendants, on the other hand, contend that the Corps should reconsider the issue.

Plaintiffs' legal argument for a remand to the EPA is unpersuasive. Plaintiffs argue that the EPA make a binding jurisdictional decision by issuing its January 1987 findings. A "Memorandum of Understanding Geographic Jurisdiction of the § 404 program," 54 Fed. Reg. 45018, 44019, P6 (July 2, 1980) ("MOU") provides that jurisdictional determinations made by the EPA are binding on the Corps. Therefore, plaintiffs maintain that the Corps now has no authority to reconsider the issue.

This argument is completely undercut by the fact that the EPA rescinded the January findings, declaring all rights and obligations under the findings null and void.Since the EPA's assertion of jurisdiction has been nullified, and the Corps' determination remains in effect.⁷

Plaintiffs do advance some persuasive practical reasons for remanding to the EPA. They argue that EPA has extensively examined and analysed data on the site. They also fear that the Corps may be less than impartial in their renewed consideration; they may merely rationalize their prior decision, and not genuinely reconsider it.

If the Court had the discretion to remand the issue to either agency, these considerations would help guide our use of that discretion. However, under the MOU, the Corps makes wetlands determinations for all cases except special ones. Since neither the Corps nor the EPA has declared the center to be a special case, the Corps has the authority to make the decision. Id. at P4.

In accordance with this Court's retention of jurisdiction over this case, we deem it important to ensure that the Corps' reconsideration is thorough and fair. We have perused both the aerial photographs and staff report of Dr. Huffman commissioned by the EPA, and note that they amply support plaintiffs' assertion that the site contains wetlands. Dr. Williams, the expert who interpreted the photographs, concludes that "[t]he site was never totally dry even after the site was initially filled. . . . There was wetland and aquatic habitat present in every photograph since 12/13/72; therefore the habitat was never totally removed." Aerial Photointerpretation of Wetland Aquatic Habitat, and Fill Locations, Port of Oakland Distribution Center, Oakland California Study Period: 1969-1987, at 17. Dr. Williams' conclusion accords with Dr. Huffman's finding that the site contains "wetlands as well as other waters" that are "subject to Section 404 regulation under the U.S. Army Corps of Engineers, San Francisco District's regulatory program." A Report on the Presence of Wetland and Other Aquatic Habitats Within Areas of the Port of Oakland Distribution Center, July 24, 1987, at 38.

The Court strongly suggests that the Corps carefully consider this and other evidence. If the Corps upholds its prior determination, and it becomes necessary for us to review that decision, we will certainly wish to know why these findings were rejected by the Corps. In this regard, we also suggest that the Corps make written findings, as required by the MOU, 45 Fed. Reg. at 45019, P4, which thoroughly explain the basis for its action and provide an adequate record for judicial review. Finally, we recommend that the Corps fully elicit the participation of the plaintiffs in this litigation as a means of adequately considering all points of view on this important question.

With these suggestions, we remand the determination to the Corps for what we expect will be an expeditious reconsideration. This remand temporarily disposes of plaintiffs' second cause of action, though we retain jurisdiction over that claim.⁸

3. Disposition of Remaining Issues

A. Port's Dismissal Motion

The Court will not dismiss the first cause of action against the Port. That cause of action may be justiciable if the Corps reverses itself and finds that the site contains wetlands, or if the Court finds that the site contains wetlands upon review of the Corps' decision. Therefore, we will stay the dismissal motion and retain jurisdiction over the first cause of action, pending the outcome of the Corps' review.

The third cause of action is moot. In the third cause of action, plaintiffs challenge the Corps and the EPA for failing to make a wetlands determination. Of course, the Corps did make such a determination. Even if there were technical irregularities that void the determination, the Corps will make a new wetlands determination pursuant to this remand. Therefore, the third cause of action is dismissed.

The Court will not dismiss the fourth cause of action. That claim's continued vitality depends upon the outcome of the Corps' reconsideration. Though the Port presses us to declare that the EPA's alleged failure to enforce compliance with the permit program does not state a cause of action under section 1365(a)(2), the Court need not make that determination now. Since the claim may be mooted by subsequent Corps and EPA action, the Court will not render what may be an advisory opinion on this issue. Therefore, the Court will stay the dismissal motion, pending the outcome of the Corps' decision.

B. Discovery

All discovery in this action is hereby stayed pending Corps review. The parties shall submit either joint or individual reports to the Court every sixty days beginning from the date of this Order informing us of the status of the proceedings before the Corps.

IT IS SO ORDERED.

1. On the one hand, the Federal Defendants argue that "[s]ection 505(a)(1) . . . provides no basis for jurisdiction over the Corps or the EPA." Federal Defendants' Reply Brief at 7. On the other hand, the Federal Defendants state that the Court may review the jurisdictional disclaimer to determine the validity of the Port's defense to the enforcement cause of action. Id. at 7, n.8.

2. By deleting the portion of the opinion addressing Section 505, we moot the Federal Defendants' second objection to our prior Opinion dealing with the "correctness" or the Corps' determination. For the sake of clarification, however, we never intended to impose any standard of review upon the disclaimer other than the arbitrary and capricious standard of the APA.

3. We similarly find it unnecessary to "clarify" whether the Civiletti Opinion and the Memorandum of Understanding are consistent with each other and the Clean Water Act.

1. Plaintiffs vigorously contest those assertions; they contend that the site has never been transformed into dry land.

2. The Port does seek dismissal of the first claim as well. However, as noted infra at 17, dismissal of the first claim is premature, since the plaintiffs may have a viable enforcement claim if the Corp's wetlands determination is overturned. Nevertheless, we do agree with the Port that the enforcement cause of action may not be based on violation of the EPA's January Order, since the EPA rescinded and nullified the order, and plaintiffs may not sue for past violations of the CWA. Gwaltney of Smithfield v. Chesapeake Bay Foundation, 108 S. Ct. 376 (1984).

3. We reject the federal defendants' argument that the doctrine of primary jurisdiction precludes Court review of the Corps' decision. The Court will remand the agency's decision, rather than determining the merits of the issue itself. See infra at 17. Thus, the Court is abiding by the purpose of the doctrine, which is to enable an agency to exercise its expertise and correct its own errors. Klicker v. Northwest Airlines, Inc., 563 F.2d 1310, 1313 (9th Cir. 1977). In addition, since the Port is relying upon the Corps' prior determination as a defense to the enforcement claim, this Court's failure to vacate the prior determination could have the effect of permitting filling activity which the Corps may subsequently find to be illegal.

4. The plaintiffs vigorously contend that the site is still not dry land. Two EPA experts who have studied the site agree with plaintiffs. See discussion of Huffman and Williams reports, infra at 16.

5. This construction of the regulation is also consistent with court decisions interpreting that language in similar factual situations. For example, in United States v. Ciampitti, 583 F. Supp. 483, 493-494 (D.N.J. 1984), a defendant developer argued that since a railroad embankment barred the entry of tidal flow onto the site for some period of time, the site was not a wetlands. The court rejected the argument, since the site was wet when the defendant began filling it. The court stated: "the history of the site is not relevant unless it indicates that the land was fast [in 1975] when the Corps claimed jurisdiction. . . . As long as it was wet when the fill activity began, the history of the site is irrelevant." (emphasis added). Similarly, in United States v. Bradshaw, 541 F. Supp. 880, 883 [12 ELR 20629] (D. Md. 1981), a defendant property owner argued that his land was not wetlands, contending that the area was "highlands" which only later became a marsh after the government constructed a mosquito ditch. The court held that even if this were true, the owner was liable for removal costs since the site was wet when the filling activity began.

6. The photointerpretation of the aerial photographs, discussed infra at 16, indicates that the site was not dry land in 1975.

7. Contrary to plaintiffs' claim, there is no evidence that the EPA has asserted jurisdiction over the site after its withdrawal of the Findings.

8. The remand does appear to moot plaintiffs' other allegations in the second cause of action that the Corps violated procedural regulations in issuing its jurisdictional disclaimer. Therefore, these allegations are dismissed.