ELR Citation: ELR 20119
No(s). A89-503 (D. Alaska Oct 16, 1990)

The court holds that challenges to a Memorandum of Agreement (MOA) between the Environmental Protection Agency (EPA) and the Corps of Engineers on mitigation requirements under Federal Water Pollution Control Act §404(b)(1) guidelines are not ripe for review. Plaintiffs allege that the MOA's requirement of compensatory mitigation, in the form of one-to-one replacement of wetlands, violates their procedural rights because the MOA was developed outside the notice and comment rulemaking procedures under the Administrative Procedure Act. The federal government claims that the MOA adds no new requirements for prospective permittees, and that the Corps retains authority to determine what mitigation is required in any given permit application. The court holds that the case is not ripe for review. The court notes that the issues presentedare purely legal and that the MOA represents final agency action. Nevertheless, the issues of whether the MOA requires new procedures or allows for agencies to rely on the guidelines and the MOA in making permit decisions are better addressed in a particular permit proceeding. Moreover, plaintiffs have shown no immediate impact on their day-to-day business resulting from the MOA, and plaintiffs are not now required to choose between compliance or penalty imposition.

Counsel for Plaintiffs
Richard Kibby
Office of Municipal Attorney
P.O. Box 196650, Anchorage AK 99519-6650
(907) 343-4545

Counsel for Defendants
Dean Dunsmore
U.S. Department of Justice
222 W. 7th Ave., No. 69, Anchorage AK 99513
(907) 271-5452