ELR Citation: ELR 21431
No(s). 89-0116C (E.D. Mo. Jul 13, 1990)

The court holds that the doctrines of primary jurisdiction and ripeness bar a landowner's action challenging the Army Corps of Engineers' determination that the landowner's property is a "wetland" or "water of the United States" under §404 of the Federal Water Pollution Control Act (FWPCA). The Corps had ordered the landowner to cease and desist unauthorized discharges of fill material onto wetlands during the construction of fish ponds. The court holds that the Corps has jurisdiction under FWPCA §404 over the landowner's property. The determination of whether the landowner's property is a wetland falls squarely within the Corps' expertise, and the doctrine of primary jurisdiction precludes the courts from substituting their judgment for that of the appropriate agency. Further, the landowner's challenge to the Corps' cease and desist order is not ripe because the order does not constitute final agency action, and the Corps' threat to impose fines is merely one potential action. The landowner may seek judicial review only when the Corps completes its investigation and issues a final decision on whether to impose fines or to issue a FWPCA §404 permit.

Counsel for Plaintiff
Richard A. Mueller, Edwin G. Harvey, John F. Medler Jr.
Cobrun, Croft & Putzell
One Mercantile Ctr., St. Louis MO 63101
(314) 621-8575

Counsel for Defendants
Joseph B. Moore, Ass't U.S. Attorney
414 U.S. Court & Custom House, 1114 Market St., St. Louis MO 63101
(314) 539-2200