ELR Citation: ELR 20302
No(s). s. 91-35321, -35643 (9th Cir. Dec 9, 1992)

The court holds unripe a challenge by Alaska municipalities to a memorandum of agreement (MOA) between the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers setting forth the policy and procedures for determining the type and level of mitigation required to comply with dredge and fill permit guidelines under Federal Water Pollution Control Act (FWPCA) §404(b)(1). The court first holds that although the municipalities' challenge under the notice and comment provisions of Administrative Procedure Act (APA) §553 presents purely legal issues generally fit for review and the court assumed that the MOA was final agency action under the APA, the case is not ripe, because judicial review is likely to stand on surer footing in the context of a specific application of the MOA. The judicial process will clearly gain by waiting for a concrete application of the MOA. U.S. Supreme Court rulings on ripeness compel this result. The court next holds that withholding consideration of the §553 challenge will not inflict any hardship on the municipalities. The municipalities failed to show that they would suffer any immediate, direct, or significant hardship that would outweigh the district court's and the agencies' interest in delaying review. The court holds that the district court also properly held unripe the municipalities' claim that the agencies violated APA §706(2)(a) by failing to adhere to the requirements of two executive orders requiring a taking implications assessment and a regulatory impact analysis in adopting the MOA. The court finds that, similar to the previous ripeness issue, the substance of this APA challenge can best be reviewed in the context of a real conflict. The court cannot know or discern what operative effect the MOA has.

Finally, the court holds that the agencies' adoption of the MOA did not violate §102(c) or (e) of the National Environmental Policy Act (NEPA), because the MOA is exempt under FWPCA §511(c), from the requirements of those NEPA sections. The MOA is not a major federal action requiring the preparation of an environmental impact assessment (EIS) under NEPA §102(c), because as an action taken by the administrator pursuant to the congressional directive in the FWPCA to develop guidelines under §404(b)(1), it is covered by §511's exemption from classification as a major federal action. Moreover, the Corps' involvement in adopting the MOA did not affect the scope of FWPCA's §511 exemption, and the exemption will facilitate EPA's efforts to clean up the nation's waters. The court also narrowly holds that in the circumstances of this case, Section 511's exemption is sufficiently broad to remove the MOA from NEPA's §102(e) consideration of alternatives requirements. A complete exemption from NEPA requirements will enable EPA to act more expeditiously in fulfilling its purpose of protecting the environment, and this case does not present a situation in which no one is policing EPA's activities. Moreover, the duties and obligations imposed on EPA by Congress under the FWPCA, in addition to the Corps' compliance with EIS and other NEPA requirements when issuing a permit pursuant to the guidelines, will ensure that any action taken by the administrator under §404(b)(1) will have been subjected to the "functional equivalent" of NEPA requirements.

[The district court's opinion is published at 21 ELR 20119.]

Counsel for Plaintiffs
James S. Burling
Pacific Legal Foundation
121 W. Fireweed La., Ste. 250, Anchorage AK 99503
(907) 278-1731

Counsel for Plaintiffs/Appellants
Ronald A. Zumbrun, Robin L. Rivett
Pacific Legal Foundation
2700 Gateway Oaks Dr., Ste. 200, Sacramento CA 95833
(916) 641-8888

Counsel for Defendants/Appellees
J. Carol Williams, Blake A. Watson
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Wright and Canby, JJ.