ELR Citation: ELR 21192
No(s). 93-C-839W (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