ELR Citation: ELR 21164
No(s). C95-781Z (W.D. Wash. Apr 2, 1996)

The court dismisses an environmental group's claims under Federal Water Pollution Control Act (FWPCA) §505(a)(2) and the Administrative Procedure Act (APA) against the U.S. Army Corps of Engineers (the Corps) and the U.S. Environmental Protection Agency (EPA) for allegedly failing to perform non-discretionary duties regarding permitting and wetlands delineation decisions on a parcel of land. The court first holds that §505(a)(2) does not waive the Corps' sovereign immunity from suit. Although the FWPCA expressly permits suits against the EPA Administrator, the court may not extend the waiver beyond the statute's express terms to include the Corps. This conclusion is reinforced by the statute's specific references elsewhere to the "Secretary," meaning "the Secretary of the Army, acting through the Chief of Engineers." The court finds further support from a comparison of §505(a)(2) with §505(a)(1), which expressly permits citizen suits against the United States and any other governmental instrumentality or agency. That Congress did not use similarly broad language in §505(a)(2) indicates that it meant the waiver of sovereign immunity to be limited to the EPA Administrator. The court rejects plaintiff's claim that because EPA has delegated certain duties to the Secretary of the Army, the waiver of sovereign immunity must be read to include the Corps. This argument ignores the rule that waivers of sovereign immunity must be construed narrowly and according to their express terms. The court notes that limiting the FWPCA's citizen suit provision to EPA does not insulate the Corps from suit, because the APA provides an alternate means of obtaining judicial review of the Corps' actions.

The court next holds that EPA did not have a nondiscretionary duty to review or reverse the Corps' decision that the landowner's activities constituted "normal farming," and thus were exempt from the requirement to obtain an FWPCA §404 permit. Nor did EPA have a non-discretionary duty to compel the Corps to conduct a wetlands delineation on the remainder of the parcel. The court rejects plaintiff's interpretation of §404(c) as requiring EPA to consult with the Corps and to make written findings every time the Corps makes a determination, and then to decide whether to veto that determination. Rather, the provision requires EPA to consult with the Corps and to set forth its findings in writing when EPA chooses to prohibit a specification or to deny or restrict use of a designated area. Nothing in the subsection states or implies that EPA is required to review every decision the Corps makes. Moreover, because §505(a)(2) waives EPA's sovereign immunity, the court construes it narrowly to require that a duty must be identifiable from the statutory text as non-discretionary in order for it to form the basis of a citizen suit against EPA. Plaintiff has not identified any portion of the FWPCA that requires EPA to review Corps decisions for error or to compel the Corps to make wetlands determinations.

The court then holds that EPA's decision not to act regarding the Corps' "normal farming" determination is committed to the Agency's discretion and, thus, is not subject to judicial review under the APA, 5 U.S.C. §702. The court holds that plaintiff failed to overcome the presumption against unreviewability of the Agency's decision not to take enforcement action. Thus, the court lacks subject matter jurisdiction over this claim. The court next dismisses plaintiff's APA claims against the Corps for failure to delineate wetlands and against EPA for failure to compel delineation, because the APA does not permit review of agency actions that lack finality. The court rejects plaintiff's argument that a letter from the Corps to the landowner—stating that the landowner's activities fell under the "normal farming" exception and that unless the activities changed or the Corps received new, relevant information, the Corps would take no further action—could be the Corps' last word on the subject of wetlands delineation on the parcel. The court holds that the Corps' statement in the letter is not final agency action. The Corps' decision did not impose a burden on plaintiff, the decision does not have the force of law and has not fixed any legal relationships, and judicial review of the decision could interfere with agency operations. Moreover, review of the status quo would be an inefficient use of judicial resources because such a ruling could become moot if the status quo changes and the Corps decides to take further action. The court therefore holds that the Corps has not taken final agency action with respect to the wetlands delineation and that EPA's failure to compel further action is also not reviewable.

Counsel for Plaintiff
M. David Karnas
Siegel, Bellovin & Karnas
2430 E. 6th St., Tucson AZ 85719
(520) 571-9700

Counsel for Defendants
Stephen T. Parkinson
Martin & Brown
1191 Second Ave., 22d Fl., Seattle WA 98101
(206) 292-6300