ELR Citation: ELR 20633
No(s). 91-467-CIV-5-D (E.D.N.C. Nov 6, 1992)

The court refuses to dismiss environmental groups' citizen suits under the Federal Water Pollution Control Act (FWPCA) against a timber company, the U.S. Environmental Protection Agency (EPA), and the U.S. Army Corps of Engineers (Corps), and dismisses the groups' claims against EPA and the Corps under the Administrative Procedure Act (APA). The timber company was converting a large tract of swampland into a pine plantation by removing existing vegetation, opening drainage ditches, depositing fill materials, and planting trees. When the environmental groups notified EPA, the Corps, and the company of their intent to bring a citizen suit against the company for its discharges of fill material into the swamp without a permit, EPA notified the plaintiffs that it considered the company's activities to be exempt from permitting as an established silvicultural activity under FWPCA §404(f). The groups then brought suit against the company for violating an effluent standard by depositing fill into a swamp without a permit, and against EPA and the Corps, alleging that their determination that the company's activities were not subject to permitting violated a nondiscretionary duty under the FWPCA was arbitrary and capricious under the APA.

The court first upholds the magistrate judge's determination that plaintiffs sufficiently alleged FWPCA violations against the defendants. It is uncontested that plaintiffs are citizens, that the company constitutes a "person," and that neither EPA nor the state are prosecuting the company. Additionally, the complaint alleges that the company is in violation of an"effluent standard or limitation," and FWPCA §505 makes depositing fill without an FWPCA §301 permit a violation of an effluent limitation or standard. Although FWPCA §404(f)(1)(A) exempts from permitting established silvicultural activities, plaintiffs sufficiently alleged that permitting is required under FWPCA §404(f)(2) because the silvicultural activity subjects the land to a use to which it was not previously subject. Since the company has not obtained a permit, it is not in compliance with §404 and is discharging in violation of §301. The court holds that an EPA determination of permit requirements is not necessary for an "effluent standard" under §301 to exist. The court next holds that the environmental groups may bring suit simultaneously against a company alleged to be discharging without apermit and the permitting agency for failing to require a permit. Additionally, the court holds that although not all of the plaintiffs satisfied §505's 60-day notice requirement, notice by one plaintiff satisfied the requirement for all plaintiffs. The court refuses to dismiss the groups' FWPCA claims against EPA and the Corps, holding that their permit determinations regarding the company's operations constitute non-discretionary duties under §505. Finally, the court dismisses the groups' APA claims against EPA and the Corps, holding that an additional suit under the APA is precluded because the plaintiffs can bring suit under FWPCA §505.

Counsel for Plaintiffs
Derb S. Carter Jr., Deborah L. Hayes
Southern Environmental Law Center
137 E. Franklin St., Ste. 404, Chapel Hill NC 27514
(919) 967-1450

Dan Goodman
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Stephen A. West, Ass't U.S. Attorney
U.S. Attorney's Office
874 Federal Bldg.
310 New Bern Ave., P.O. Box 26897, Raleigh NC 27611
(919) 856-4530