Child v. United States

No. 93-C-839W (851 F. Supp. 1527) (D. Utah May 9, 1994)

The court holds that the U.S. Army Corps of Engineers' (Corps') assertion of jurisdiction over property it claims contains wetlands is not judicially reviewable under the Federal Water Pollution Control Act (FWPCA) or the Administrative Procedure Act (APA). The court holds that it does not have jurisdiction to review the Corps' assertion of jurisdiction, because it constitutes preenforcement proceedings and the FWPCA precludes preenforcement review. Congress' intent to preclude preenforcement review is evident from the Act's objectives and legislative history; similarities among the regulatory schemes of the FWPCA, the Clean Air Act, and the Comprehensive Environmental Response, Compensation, and Liability Act; and the nature of the administrative action involved. The court has jurisdiction to review FWPCA enforcement actions — and plaintiffs may contest the Corps' assertion of jurisdiction — only if the government seeks administrative penalties or judicial enforcement of a compliance order. The Corps has yet to take such action against plaintiffs. The court holds that the Corps' assertion of jurisdiction is not reviewable under APA § 704, because it is not final agency action. The Corps' statements concerning jurisdiction do not directly affect plaintiffs' conduct and do not require immediate compliance. Also, the Corps' jurisdictional decision is not definitive. Finally, the court rejects plaintiffs' claims that the Corps failed to follow rulemaking procedures required under the APA; that the FWPCA, as applied, violates the Commerce Clause of the U.S. Constitution; and that the Corps violated plaintiffs' Fifth Amendment due process rights. If they choose, plaintiffs may be heard through FWPCA § 404's permit process, and plaintiffs have not shown that they would be denied a fair hearing before being subject to significant property loss.

Counsel for Plaintiffs
Steven J. Christiansen, John M. Burke
Kimball, Parr, Waddoups, Brown & Gee
185 S. State St., Ste. 1300, Salt Lake City UT 84147
(801) 532-7840

Paul M. Seby, William Perry Pendley
Mountain States Legal Foundation
1660 Lincoln St., Ste. 2300, Denver CO 80264
(303) 861-0244

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

Steve Neugeboren
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 260-2090

[24 ELR 21193]

Memorandum Decision and Order

This matter is before the court on Defendant United States, et al.'s ("Defendants") Motion to Dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Procedure 12(b)(1). A hearing on the motion was held on March 22, 1994. At the hearing, Joseph W. Anderson, Katherine A. Dreyfus, Rebecca A. Lloyd, and Chris Mangan represented Defendant. Paul M. Seby and Clay N. Stucki represented Plaintiffs Brandt and Venice Child ("Plaintiffs" or the "Childs"). Before the hearing, the court considered carefully the memoranda and other materials submitted by the parties. Since taking the matter under advisement, the court has further considered the law and facts relating this motion. Now being fully advised, the court renders the following Memorandum Decision and order.

I. Background

The property in question is 400 acres of real property located in Kane County, Utah, owned by the Woodland Family Trust (the "Property"). A portion of the Property contains three naturally occurring spring-fed ponds. On December 27, 1990, Mr. Michael Schwinn of the U.S. Army Corps of Engineers (the "Corps") performed an on-site inspection of the Property and determined that Mr. Child had improperly filled .04 acres of what Schwinn determined to be wetlands under the Clean Water Act (the "CWA" or the "Act").¹ On January 16, 1991, Schwinn met with Plaintiffs to discuss the improper filling. At that time, Schwinn instructed Mr. Child to remove the fill he had placed on the wetlands area, or the Corps would consider Mr. Child to be in violation of the CWA after January 31, 1991. Accordingly, Mr. Child removed the alleged fill material from the relevant area, as instructed, on or before January 31, 1991.

By letter dated February 1, 1991, Schwinn summarized the oral agreement, stating that the fill would be removed by January 31, 1991, and that upon completing the agreed-upon plan, as verified through a compliance inspection, the Corps would consider the violation resolved. Schwinn's letter also notified Mr. Child that his property contained "wetlands" and "waters of the United States" and was therefore subject to the Corps' jurisdiction under the CWA. The same letter stated that the Corps had determined that a road on the Property was in compliance with the Corps' CWA regulations.² By letter dated April 2, 1991, the Corps informed Mr. Child that pursuant to an inspection on March 12, 1991, the Corps considered the fill violation to be resolved.

On September 21, 1993, Plaintiffs filed a Complaint against Defendants seeking an order of declaratory judgment "declaring that all of the property belonging to Woodland Family Trust . . . is not a 'navigable water,' is not a 'water of the United States,' and is not in any way subject to jurisdiction under the Clean Water Act . . ." Compl. at 9. Plaintiffs also seek a permanent injunction forever restraining the Corps and the Environmental Protection Agency (the "EPA") from asserting any type of jurisdiction under the CWA over the Property. Further, Plaintiffs allege that

a. The Army Corps' and/or EPA's purported "interpretation" and/or "construction" of "wetlands" as applied to the Woodland Family Trust property exceeds the scope of the agency's or agencies' statutory authority;

b. As applied, the Army Corps' and/or the EPA's purported "interpretation" and/or "construction" of "wetlands" would exceed Congress' power to regulate interstate commerce under Article I, Section 8 of the United States Constitution;

c. The Army Corps' and/or EPA's actions in expanding, and in effect amending, the "wetland definition" under the guise of purported "interpretation" and/or "construction" of "wetlands" constitutes rulemaking and as such is invalid because the rulemaking was and is being carried out in violation of the public notice and comment provisions of the Administrative Procedures Act, 5 U.S.C. § 553; and

d. The government's assertion of Clean Water Act jurisdiction as applied violated Woodland Family Trust's Constitutional rights of due process and equal protection under the law.

Compl. at 7-8.

Although Plaintiffs may apply for a permit to discharge fill into the wetlands on the Property under the procedures provided under the CWA and the Corps' regulations, they have not done so. Additionally, the United States has not initiated a judicial action to prevent Plaintiffs from conducting any activities on the property, not has it otherwise attempted to enforce the CWA.

In moving to dismiss Plaintiffs' Complaint for lack of subject matter jurisdiction, Defendants contend that the CWA precludes the type of "preenforcement review" Plaintiffs seek. Defendants also argue that the Administrative Procedures Act (the "APA") does not confer jurisdiction, both because the CWA precludes judicial review of preenforcement actions and because there is no final agency action for review. Defendants further argue that Plaintiffs' claim that Defendants violated APA rulemaking requirements is without merit, as are Plaintiffs' constitutional claims. Defendants contend that Plaintiffs' constitutional concerns will be adequately addressed if and when there is an enforcement proceeding or a challenge to a denial of a permit by the Corps. Finally, Defendants argue that the issues raised are not ripe for review.

II. The Clean Water Act

The objective of the CWA is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C.A. § 1251(a) (West 1986 & Supp. 1994). To achieve this goal, the CWA prohibits the discharge of any pollutants, including dredged or fill material, except in accordance with the Act. Id. § 1311(a).

The CWA, however, authorizes the Secretary of the Army (the "Secretary") to issue permits "for the discharge of dredged or fill material into the navigable waters at specified disposal sites." Id. § 1344(a). Subject to certain provisions in the CWA, each permit shall be based on the application of guidelines developed by the Administrator of the EPA in conjunction with the Secretary. Id. § 1344(b). Pursuant to that section of the CWA, the EPA developed regulations that are published at 40 C.F.R. Pt. 230. The Corps' regulations governing the permitting process are published at 33 C.F.R. Pts. 320-30.³

Part 320 contains the Corps' general regulatory policies for evaluating permit applications.⁴ Factors to consider include, among other things, "conservation, economics, aesthetics, general environmental concerns, wetlands, historical properties, fish and wildlife values, flood hazards, floodplain values, land use, . . . recreation, water supply and conservation, water quality, . . . considerations of property ownership and, in general, the needs and welfare of the people." Id. Pt. 320. Part 325 governs the permitting process and lists the items that must be submitted with an application for a § 404 permit.

The discharge of dredged or fill material into navigable waters without a permit violates the Act. 33 U.S.C.A. § 1311(a).⁵ The CWA [24 ELR 21194] defines "navigable waters" as "waters of the United States, including the territorial seas." Id. § 1362(7). Further, the EPA and the Corps have adopted regulations defining "waters of the United States" to include numerous bodies of water, including wetlands, "the use, degradation or destruction of which could affect interstate . . . commerce."⁶ 33 C.F.R. § 328.3(a)(2), (3) (the Corps' regulations); 40 C.F.R. 230.3(s)(2), (3) (the EPA's regulations); see also 33 C.F.R. § 328.3(a)(4)-(7); 40 C.F.R. § 230.3(s)(4)-(7).

Enforcement of the CWA is shared jointly by the Corps and the EPA. In cases of unpermitted discharge of fill material, the CWA and its implementing regulations provide the EPA and the Corps with a choice of methods for enforcing the Act: The EPA may issue compliance orders to violators of the Act, it may commence an enforcement action in the United States District Court, and it may assess an administrative penalty. See 33 U.S.C.A. § 1319(a), (b), (g).⁷ Similarly, upon a finding that a person is illegally engaging in dredge and fill activity, a district engineer of the Corps will notify the responsible persons, 33 C.F.R. § 326.3(c),⁸ and may later determine whether to recommend that legal action be taken. Id. § 326.5. If a violation continues, the United States may bring an enforcement action in district court under § 309(b), 33 U.S.C.A. § 1319(b). The government, however, has discretion regarding whether and when to bring an enforcement action. See Harmon Cove Condominium Ass'n v. Marsh, 815 F.2d 949, 952-53 [17 ELR 20747] (3d Cir. 1987).

III. Standard of Review

A motion to dismiss pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(1) is a motion to dismiss for lack of subject matter jurisdiction. In such a motion, Plaintiffs carry the burden of establishing jurisdiction. Penteco Corp. v. Union Gas Sys., Inc., 929 F.2d 1519, 1521 (10th Cir. 1991). "A court lacking jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking." Tuck v. United Servs. Auto. Ass'n, 859 F.2d 842, 844 (10th Cir. 1988) (emphasis in original) (quoting Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974)), cert. denied, 489 U.S. 1080 (1989).

IV. Discussion

The issue in the instant case is whether this court has subject matter jurisdiction over Plaintiffs' action challenging the Corps' assertion of jurisdiction over Plaintiffs' Property.

A. Statutory Preclusion Under the CWA

The APA states that judicial review may be obtained for a final agency action under the APA except to the extent that "statutes preclude judicial review." 5 U.S.C.A. § 701(a)(1) (West 1977): see Abbott Labs. v. Gardner, 387 U.S. 136, 139-40 (1967) (stating that first question is whether Congress intended to forbid preenforcement review in determining whether to review regulation that had not been enforced); Thomas Brooks Chartered v. Burnett, 920 F.2d 634, 641 (10th Cir. 1990) (recognizing that judicial review of agency action is generally allowed except where statutes preclude judicial review).

In determining whether a statute precludes judicial review, courts look not only to the statute's express language, but also to "the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved." Block v. Community Nutrition Inst., 467 U.S. 340, 345 (1984); Thunder Basin Coal Co. v. Reich, __ U.S. __, 114 S. Ct. 771, 776 (1994). After examining the Block factors, courts that have considered the same jurisdictional arguments raised by Plaintiffs here have held that the CWA precludes review of preenforcement actions by the Corps or the EPA, even where those actions include final administrative orders directing that filling of wetlands cease. For example, in Hoffman Groups, Inc. v. U.S. Environmental Protection Agency, 29 Env't Rep. Cas. (BNA) 1180, 1182 [20 ELR 20002] (N.D. Ill. 1989), aff'd, 902 F.2d 567 [20 ELR 20884] (7th Cir. 1990), a residential developer filed a complaint seeking review of an EPA administrative order requiring it to stop filling its wetlands and to restore the areas it had already filled. In holding that the CWA precludes such preenforcement review of compliance orders, the district court observed that

preenforcement review of compliance orders would render that option a meaningless alternative to bringing a civil enforcement action at the outset, and effectively eliminate the compliance order as a means of expeditiously abating violations of the CWA without resort to judicial process. It is doubtful Congress intended such a result.

Id. at 1182[. On appeal, the United States Court of Appeals for the Seventh Circuit examined the provisions of the CWA and determined that "]h[aving provided a detailed mechanism for judicial consideration of a compliance order via an enforcement proceeding, Congress has impliedly precluded judicial review of a compliance order except in an enforcement proceeding." Hoffman, 902 F.2d 567, 569 (7th Cir. 1990).

Similarly, the United States Court of Appeals for the Fourth Circuit agreed with the Seventh Circuit's decision in Hoffman Groups and also held that the CWA precludes review of preenforcement agency actions. See Southern Pines Assocs. v. United States, 912 F.2d 713 [21 ELR 20033] (4th Cir. 1990). In Southern Pines, the EPA issued a "Findings of Violation and Order for Compliance," informing the partnership that it had violated § 301(a) of the CWA by discharging fill materials into wetlands without a permit. The partnership brought an action seeking a temporary restraining order and declaratory judgment that the EPA lacked jurisdiction over the property because the wetlands on the property were not adjacent to any body of water.

The Fourth Circuit affirmed the district court's dismissal of the case for lack of subject matter jurisdiction. Id. at 717. In so ruling, the Southern Pines court recognized that the CWA is not the only environmental statute that allows the EPA to issue preenforcement administrative orders. Id. at 716; see also Hoffman Group, 902 F.2d at 569. Both the Clean Air Act (the "CAA"), 42 U.S.C.A. §§ 7401 et seq. (West 1983 & Supp. 1994), and the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C.A. §§ 9601 et seq. (West 1983 & Supp. 1994), also provide for preenforcement agency action. The CAA, like the CWA, provides that the EPA may issue a compliance order before bringing suit. Based on the legislative history of the CAA, courts have found that Congress intended to preclude judicial review of compliance orders issued under the CAA. See Union Elec. Co. v. U.S. Environmental Protection Agency, 593 F.2d 299, 304 [9 ELR 20154] (8th Cir.), cert. denied, 444 U.S. 839 (1979); Lloyd A. Fry Roofing Co. v. U.S. Environmental Protection Agency, 554 F.2d 885, 891 [7 ELR 20415] (8th Cir. 1977).

Similarly, CERCLA also allows the EPA to order that a site be cleaned up prior to bringing suit. 42 U.S.C.A. §§ 9604, 9606, 9607. Prior to 1986, courts held that preenforcement remedial actions taken by the EPA under CERCLA were not subject to judicial review because litigation would interfere with CERCLA's policy of prompt agency response. See, e.g., Wagner Seed Co. v. Daggett, 800 F.2d 310, 315 [16 ELR 21001] (2d Cir. 1986); Wheaton Indus. v. U.S. Environmental Protection Agency, 781 F.2d 354, 356-57 [16 ELR 20260] (3d Cir. 1986); United States v. Outboard Marine Corp., 789 F.3d 497, 505-06 [16 ELR 20708] (7th Cir.), cert. denied, 479 U.S. 961 (1986); Barnes v. U.S. District Court, 800 F.2d 822 [16 ELR 21004] (9th Cir. 1986); J. V. Peters & Co. v. Administrator, 767 F.2d 263, 264-65 [15 ELR 20646] (6th Cir. 1985). In 1986, to clarify its intent, Congress added a provision to CERCLA that specifically precluded federal district court jurisdiction over preenforcement remedial action. 42 U.S.C.A. § 9613(h).

Consequently, the Southern Pines court reasoned that the structure of these environmental statutes evinces Congress' intent to allow the EPA to address environmental problems quickly and without becoming immediately entangled in litigation. Southern Pines, [24 ELR 21195]912 F.2d at 716. Furthermore, the court noted that "[t]he CWA is not only similar in structure to the CAA and CERCLA, but its enforcement provisions were modeled after the enforcement provisions of the CAA." Id. (citing S. Rep. No. 414, 92d Cong., 1st Sess. 63 (1971), reprinted in 1972 U.S.C.C.A.N. 3668, 3730). Hence, the court, after looking at the language, structure, objectives, and history of the CWA, and after comparing it to the CAA and CERCLA, determined that "Congress intended to preclude, prior to enforcement action or imposition of penalties, judicial review of compliance orders issued under the Clean Water Act. . . ." Id. at 717; see also Howell v. United States, 794 F. Supp. 1072, 1075 (D.N.M. 1992) ("[f]orcing the agency into litigation before it completes its wetlands delineation and permitting process will frustrate the statutory scheme that allows the agency to resolve violations in a flexible manner without judicial interference"); Leslie Salt Co. v. United States, 789 F. Supp. 1030, 1034 [22 ELR 20359] (N.D. Cal. 1991) ("issuance of a cease and desist order by the Corps is not sufficient to create jurisdiction in this court"); Mulberry Hills Dev. Corp. v. United States, 772 F. Supp. 1553, 1557 [22 ELR 20254] (D. Md. 1991) ("CWA does not allow for pre-enforcement review of cease and desist orders," Route 26 Land Dev. Ass'n v. United States, 753 F. Supp. 532, 540 [21 ELR 21199] (D. Del. 1990) (declining to review Corps' assertion of jurisdiction because "the regulatory scheme of the CWA impliedly precludes such a review."), aff'd without opinion, 961 F.2d 1568 (3d Cir. 1992); McGown v. United States, 747 F. Supp. 539, 542-43 [21 ELR 20344] (E.D. Mo. 1990) (dismissing complaint for lack of subject matter jurisdiction pursuant to Southern Pines and Hoffman Group); Fiscella & Fiscella v. United States, 717 F. Supp. 1143, 1147 [20 ELR 20107] (E.D. Va. 1989) ("the existence of the Corps' jurisdiction in the case at bar is a factual issue properly left to the expertise of the agency. . . . [T]he Corps should be given the initial opportunity to [determine jurisdiction] and develop a record for judicial review.").

Recently, and in a case quite analogous to the instant one, the Seventh Circuit specifically found that a district court cannot review a challenge to the EPA's assertion of jurisdiction. In Rueth v. U.S. Environmental Protection Agency, 13 F.3d 227 (7th Cir. 1993), the plaintiff did not challenge a compliance order, but instead challenged the government's right to assert jurisdiction over the isolated wetlands in the plaintiff's development.⁹ The Seventh Circuit affirmed the trial court's conclusion that "'if agency compliance orders are not reviewable until the enforcement stage, the agency's initial determination that it has the authority to either require permitting or issue orders in the absence of a permit application must also be unreviewable.'" Id. at 229 (quoting Rueth v. U.S. Environmental Protection Agency, No. 560944, 1992 WL at *2 (N.D. Ind. Nov. 24, 1992)); see also Lotz Realty Co. v. United States, 757 F. Supp. 692, 695 (E.D. Va. 1990) (observing that "[b]ecause Southern Pines tells us that judicial review of a compliance order is pre-enforcement review prohibited by the statute, then it necessarily follows that judicial review at a stage even more preliminary is also precluded."); McGown, 747 F. Supp. at 542 (noting that "allowing the landowner to litigate the existence of agency jurisdiction prior to the institution of enforcement proceedings would frustrate agency efforts to reach an amicable resolution of disputes concerning compliance with the CWA.").

In reaching its decision, the Rueth court recounted its previous decision in Hoffman Group, 902 F.2d 567 [20 ELR 20884] (7th Cir. 1990), and also emphasized the Fourth Circuit's determination in Southern Pines Assocs. v. United States, 912 F.2d 713 [21 ELR 20033] (4th Cir. 1990), that the plaintiffs "'can contest the existence of EPA's jurisdiction if and when EPA seeks to enforce the penalties provided by the Act.'" Rueth, 13 F.3d at 230 (quoting Southern Pines, 912 F.2d at 717). Accordingly, the Rueth court explained, [o]nce the EPA determines that the . . . property is a wetland covered under the CWA and seeks judicial or administrative enforcement of penalties against the plaintiff, then [the plaintiff] will be entitled to his day in Court." Id. at 230.

In the present case, this court is persuaded by the reasoning of the Fourth and Seventh Circuits, which found that in light of the framework of the CWA's legislative history, the similarities in regulatory schemes of the CWA, the CAA, and CERCLA, the objectives of the CWA, and the nature of administrative action involved, Congress meant to preclude judicial review of preenforcement proceedings under the CWA. Thus, this court has jurisdiction to review enforcement actions pursuant to the CWA only when the government is seeking judicial enforcement of a compliance order or is seeking administrative penalties. Neither of these requirements has been met.¹⁰ Accordingly, Plaintiffs' request for injunctive and declaratory relief at this stage of the administrative process is antithetical to Congress' intent to allow the EPA and the Corps a nonjudicial means for dealing with water pollution quickly and efficiently. Plaintiffs can contest the Corps' or the EPA's jurisdiction if and when the government seeks judicial enforcement of a compliance order or seeks administrative penalties.¹¹

Despite the foregoing weight of authority, Plaintiffs nevertheless argue that Tenth Circuit precedent dictates that the Corps' jurisdictional determination is subject to immediate judicial review. In so arguing, Plaintiffs rely on Riverside Irrigation Dist. v. Stipo, 658 F.2d 762 [12 ELR 20243] (10th Cir. 1981). However, Riverside is completely distinguishable from the case at hand. The Tenth Circuit, in Riverside, allowed judicial review of the Corps' decision that the plaintiffs did not qualify for a nationwide permit concerning their proposed construction of a dam and reservoir. Id. at 767. The Corps had concluded that the completed project would adversely affect a 53-mile stretch of whooping crane habitat and had informed the plaintiffs that they would not qualify for a nationwide permit. Id.

In the instant case, Plaintiffs erroneously assert that they face "exactly the same situation." Pls.' Resp. Mem. to Defs.' Mot. to Dismiss at 8 ("Pls.' Resp. Mem."). By contrast, however, the Corps in the present case has not taken a final position on any pending proposal by Plaintiffs because they have not presented the Corps with any specific project proposal. Because Plaintiffs have not sought approval for a particular project, it is completely speculative whether such approval would be granted or denied. Thus, there is no clear, concrete dispute to be decided as there was in Riverside.

Moreover, while a few other courts have allowed preenforcement review of agency actions, those courts did not specifically address whether the CWA precluded review and are therefore inapplicable to the instant case. For example, Plaintiffs cite Swanson v. United States, 600 F. Supp. 802 [15 ELR 20206] (D. Idaho 1985), aff'd, 789 F.2d 1368 [16 ELR 20799] (9th Cir. 1986), for the proposition that other courts have allowed judicial review in Plaintiffs' situation. Pls.' Resp. Mem. at 10. Swanson, however, is inapposite because neither the district court, nor the Ninth Circuit in its affirmance, addressed whether the history and nature of the enforcement provisions of § 404 of the CWA demonstrate that Congress intended to preclude preenforcement review of compliance orders, which is imperative for the present inquiry. See also Bailey v. United States, 647 F. Supp. 44 [17 ELR 20501] (D. Idaho 1986).

Moreover, in Leslie Salt Co. v. United States 789 F. Supp. 1030, 1033 [22 ELR 20359] (N.D. Cal. 1991) the court recognized that other litigation in the Ninth Circuit had proceeded on the assumption that a district court had jurisdiction over a cease and desist order, but that "the issue has not been expressly discussed by the court involved, and the Corps has not squarely raised the issue before." Id. at 1032. In analyzing the issue, the Leslie Salt court discerned that "'[s]everal recent cases have held that the issuance of a cease and desist order by [24 ELR 21196] the Corps is a preliminary determination of jurisdiction and of possible Clean Water Act violations, but is not a final agency action reviewable by a district court." Id. at 1033. Additionally, the court recognized that "[s]everal cases from other circuits have held that the Clean Water Act itself precludes district court review at the stage of the issuance of a cease and desist order." Id. at 1033-34. For those reasons, the Leslie Salt court granted the government's motion to dismiss for lack of subject matter jurisdiction, concluding that the issuance of a cease and desist order by the Corps is not sufficient to enable a district court to resolve the jurisdiction of the Act over the property. Id. at 1034.

Plaintiffs also contend that "[b]y no stretch of the imagination could the Childs' suit be thought to meet the definition of 'preenforcement review.'" Pls.' Resp. Mem. at 10. Citing Websters' Third New International Dictionary of the English Language, Plaintiffs assert that all "[t]he agency's actions against [them], pursuant to § 309(a), constitute 'enforcement' in the purest sense." Id. at 9. As set forth above, this court, has held that review of any agency action made before the agency seeks judicial enforcement of a compliance order or seeks administrative penalties constitutes impermissible preenforcement review. In this case, because the Corps has not sought judicial enforcement or administrative penalties, the Corps' action is a "pre-enforcement" action not subject to judicial review.

B. Jurisdiction Pursuant to the APA

Plaintiffs also claim that the APA, 5 U.S.C.A. § 701 et seq., provides jurisdiction for their appeal because there has been a final agency action. Section 704 of the APA provides that "[a]gency action made reviewable by statute and final agency action for which there is not other adequate remedy in a court are subject to judicial review." 5 U.S.C.A. § 704. Plaintiffs argue that the Corps' own regulations provide that asserting jurisdiction is a final agency action. In support of this argument, Plaintiffs focus on the regulations concerning the Corps' authority under § 404 of the CWA, which state that district engineers are authorized to "issue formal determinations concerning the applicability of the [CWA] . . . to activities or tracts of land and the applicability of general permits or statutory exemptions to proposed activities. A determination pursuant to this authorization shall constitute a Corps final agency action." 33 C.F.R. § 320.1(a)(6).

Yet, the Tenth Circuit, in Sierra Club v. Yeutter, 911 F.2d 1405 [21 ELR 20083] (10th Cir. 1990), stated that "[a]n administrative decision is final when it is definitive rather than tentative, when it has a 'direct and immediate . . . effect on the day-to-day business' of the parties, and when it has the 'status of law' and requires immediate compliance." Id. at 1416 (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 151-52 (1967)) (citations omitted). Considering the Abbott factors, several courts have found that the Corps' assertion of jurisdiction is not a final agency action for purposes of judicial review. For example, in Route 26 Land Dev. Ass'n v. United States, 753 F. Supp. 532 [21 ELR 21199] (D. Del. 1990), aff'd without opinion, 961 F.2d 1568 (3d Cir. 1992), a case factually similar to the instant one, the plaintiffs sought review of the Corps' assertion of jurisdiction, stating that asserting jurisdiction was a final agency action that court be reviewed by a district court. The court, however, stated that:

Although the district engineer's assertion of jurisdiction may be a "final" agency action by virtue of 33 C.F.R. § 320.1(a) (61, this alone does not entitle Plaintiffs to preenforcement review. This court is not convinced that the district engineer's assertion of jurisdiction constitutes a final agency action as defined by the Supreme Court.

Id. at 539; see also Mulberry Hills Dev. Corp. v. United States, 772 F. Supp. 1553, 1558 [22 ELR 20254] (D. Md. 1991); Fercom Aquaculture Corp. v. United States, 740 F. Supp. 736 [20 ELR 21431] (E.D. Mo. 1990); Lotz Realty Co. v. United States, 757 F. Supp. 692, 693 (E.D. Va. 1990). As noted by the court in Route 26, the rules promulgated pursuant to § 404 to the CWA contemplate that the district engineer will have several options upon determining that someone has violated the CWA. Route 26, 753 F. Supp. at 540. For instance, after notifying the responsible parties, the district engineer may try to resolve the violation without adjudication by explaining to the violator what he must do to comply with the CWA. Id. The district engineer might resolve the problem by granting an after-the-fact permit, or, in some cases, the district engineer may recommend that suit be brought against the violator. Id. Therefore, the Route 26 court ruled that "the engineer's cease and desist order, standing alone, does not constitute a final agency action. It carries no legal consequences for the Plaintiff and it does not determine the rights and obligations of the Plaintiff or the Corps." Id.

Similarly, in the instant case, the Corps' statements concerning jurisdiction have no direct impact on Plaintiffs' conduct and do not require any immediate compliance. Further, the decision is not definitive. The Corps may grant Plaintiffs a permit to develop the property according to the Plaintiffs' plan, which would make the Corps' assertion of jurisdiction an action of minimal consequence. Alternatively, the Corps may decline to issue the permit, thus restricting Plaintiffs' use of the Property. Although the Corps has asserted jurisdiction over the Property, the ultimate effects of that action are not yet known. Hence, this court finds that the Corps' assertion of jurisdiction alone is not a final agency action entitling Plaintiffs to preenforcement review in a district court.

C. Constitutional Claims

Finally, this court finds no merit in Plaintiffs' claims that the Corps failed to observe the rulemaking procedures of the APA, and that the CWA, as applied, violates the Commerce Clause. Similarly, this court is not persuaded that the Corps has violated Plaintiffs' due process rights. Plaintiffs have not demonstrated that they would be denied a fair hearing before suffering a significant property loss.

In Southern Pines Assocs. v. United States, 912 F.2d 713 [21 ELR 20033] (4th Cir. 1990), the plaintiffs similarly argued that they had been denied due process because the Fifth Amendment, entitles them to notice and an opportunity to be heard prior to issuing a compliance order. The court noted that

[c]ontrary to their claim, appellants' fifth amendment rights are not violated because they are not subject to an injunction or penalties until EPA pursues an enforcement proceeding. [Appellants] will have an opportunity to make their constitutional arguments at any enforcement proceeding before they are subjected to any injunction or penalty.

Id. at 717; see also Hoffman Groups, Inc. v. U.S. Environmental Protection Agency, 902 F.2d 567, 570 [20 ELR 20884] (7th Cir. 1990).

Here, Plaintiffs would, in fact, have an opportunity to be heard through the permit process.¹² First, if Plaintiffs were to apply for a permit, it is possible that they would receive it, thus eliminating the possibility of such a loss due to the CWA. Second, if they were denied a permit, that denial would constitute a final order, which would be appealable under the APA. Third, in the event of any actual assessment of administrative penalties or a judicial enforcement action under § 309(a), Plaintiffs would have an additional opportunity to challenge the EPA's findings in the district court.

In summary, this court finds that the CWA precludes review of this preenforcement action, and that the Corps' assertion of jurisdiction over Plaintiffs' Property is not a final agency action reviewable by the district court. Additionally, this court finds no merit in Plaintiffs' constitutional claims.

Accordingly, and for good cause appearing,

IT IS HEREBY ORDERED that

1. Defendants United States et al.'s Motion to Dismiss is granted and Plaintiffs' Complaint is dismissed without prejudice.

2. This is a final order concluding this action and no further order need be prepared by counsel.

1. Clean Water Act, Pub. L. No. 92-500, 86 Stat. 816 (codified as amended at 33 U.S.C.A. §§ 1251 to 1387) (1986 & Supp. 1994).

2. Schwinn, however, advised Mr. Child to remain aware of any changes in the nationwide permit that authorized such road, which was scheduled to expire on January 13, 1992.

3. The Corps' regulations also establish several general nationwide permits, which are a type of general permit issued by the Chief of Engineers that are designed to regulate with little, if any, delay or paperwork certain activities having minimal impacts. 33 C.F.R. § 330.1(b). A party seeking to rely on a nationwide permit is not required to file an individual permit application, but some nationwide permits require the party to provide notice to the Corps before any discharge occurs. Id. § 330.1(e).

4. Under the regulations, the Corps must undertake a "public interest review" of all permit applications. In deciding whether to issue a permit, the Corps must carefully balance the "benefits which reasonably may be expected to accrue from" issuing the permits "against its reasonably foreseeable detriments." 33 C.F.R. § 320.4(a)(1).

5. If a person violates the CWA before applying for a permit, the Corps has the authority to issue a permit based on an "after-the-fact" permit application if initial corrective measures are completed. 33 C.F.R. § 326.3(e).

6. "Wetlands" are "areas that are inundated or saturated by surface or groundwater 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. Wetlands generally include swamps, marshes, bogs, and similar areas." 33 C.F.R. § 328.3(b); 40 C.F.R. § 230.3(t); see also United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 124 [16 ELR 20086] (1985).

7. When EPA proceeds under section 309(g), the violator is entitled to a hearing before the agency, and the public is provided with an opportunity to comment. 33 U.S.C.A. § 1319(g)(2).

8. Two types of formal notifications are described in 33 C.F.R. § 326.3(c). First, for projects that are not complete, the proper notification is "a cease and desist order prohibiting any further work pending resolution of the violation. . . ." Id. § 236.3(c)(1). Second, "[i]f the violation involves a completed project, a cease and desist order should not be necessary. However, the district engineer should still notify the responsible parties of the violation." Id. § 326(c)(2).

9. The plaintiff argued that it had no idea the wetlands on the development were "waters of the United States." In Rueth, the court noted that the Seventh Circuit's decision in Hoffman Homes, Inc. v. U.S. Environmental Protection Agency, 999 F.2d 256, 261 [23 ELR 21139] (7th Cir. 1993) makes clear that "nearly all wetlands fall within the jurisdiction of the CWA since one test for whether the wetland affects interstate commerce is whether migratory birds use the wetland." Rueth, 13 F.3d at 213. The Rueth court stated that "[d]ecisions such as Hoffman Homes give full effect to Congress'[] intent to make the Clean Water Act as far-reaching as the Commerce Clause permits." Id.

10. Moreover, Plaintiffs mistakenly refer to the Corps' assertion of jurisdiction as a § 309 compliance order. See Compl. at 6-7. Plaintiffs' reference is actually to the formal jurisdictional determination contained in the Corps' February 1, 1991, letter. As the Rueth court emphasized, if agency compliance orders are not reviewable until the enforcement stage, the agency's initial determination that it has the authority to either require permitting or issue orders in the absence of a permit application must also be unreviewable. See Rueth, 13 F.3d at 229.

11. Additionally, if Plaintiffs were to apply for a permit and were either denied or were not satisfied with its conditions, the Corps' decision on the permit is a final agency action, and a challenge to that decision may be brought in district court. See Leslie Salt Co. v. United States, 789 F. Supp. 1030, 1033 [22 ELR 20359] (N.D. Cal. 1991).

12. Plaintiffs incorrectly argue that if this court finds that it has no subject matter jurisdiction, "unless [they] violate the CWA, [they] will never have an opportunity to challenge the federal claim of jurisdiction." Pls.' Resp. Mem. at 24.