ELR Citation: ELR 20542
No(s). 90-5289 (11th Cir. Sep 17, 1990)

The court holds that a district court lacked jurisdiction to review a Corps of Engineers' negative response to a landowner's request for confirmation that the Federal Water Pollution Control Act nationwide dredge and fill permit applies to the landowner's property. The court holds that the Corps' response does not constitute agency action, or assuming it does, the response is not final agency action under the Administrative Procedure Act (APA) subject to judicial review. The Corps' response to a request for confirmation is merely advisory and has no binding legal effect on a potential permittee. Moreover, the denial of judicial review of a negative response under these circumstances is consistent with APA jurisprudence and with the regulatory scheme established under §404. Additionally, the court notes that the Declaratory Judgment Act is not a source of subject matter jurisdiction.

[The district court opinion is published at 20 ELR 20920.]

Counsel for Appellant
Anthony J. O'Donnell
Akermkan, Senterfitt & Eidson
One Brickell Sq., 801 Brickell Ave., 24th Fl., Miami, FL 33131
(305) 374-5600

Counsel for Appellant
M. Alice Thurston, Jon M. Lipshultz
Enviroment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000