ELR Citation: ELR 20107
No(s). 89-522- (E.D. Va. Aug 10, 1989)

The court holds that it lacks subject matter jurisdiction over a developer's action seeking preenforcement judicial review of the Army Corps of Engineers' assertion of wetlands jurisdiction in a cease and desist order under the Federal Water Pollution Control Act (FWPCA). The court first holds that the Declaratory Judgment Act does not provide the developer a private cause of action arising under the FWPCA. Although the FWPCA confers the right to sue on both government officials and private citizens, the FWPCA enforcement provisions, the citizen suit provision, and the Savings Clause do not afford the developer a cause of action or an implied right-of-action. Congress intended that private remedies in addition to those expressly provided should not be implied and thus limited judicial review to the FWPCA's express enforcement provisions. The court next holds that the developer must exhaust its administrative remedies to ensure that the Corps has the first opportunity to consider and develop a record for review of plaintiff's challenge to the Corps' jurisdiction, a factual issue properly left to the Corps' expertise. The developer's attempt to enjoin the Corps from asserting jurisdiction constitutes preenforcement review and encroaches on the Corps' expertise and duties under the FWPCA. Congress intended that judicial review of a compliance order occur if and when the agency seeks to enforce the order in district court. Moreover, the developer cannot circumvent the judicial review provisions of the Administrative Procedure Act and embroil the court in the intricacy of initially determining the Corps' wetlands jurisdiction.

Counsel for Plaintiffs
Richard R. Nageotte
Nageotte & Borinsky
14908 Jefferson Davis Hwy., Woodbridge VA 22191
(703) 643-2202

Counsel for Defendants
Letitia J. Grishaw
Land and Natural Resources Division
U.S. Department of Justice, P.O. Box 7611 Ben Franklin Station, Washington DC 20044
(202) 633-2000

J. Phillip Krajewski, Ass't U.S. Attorney
P.O. Box 60, 407 U.S. Courthouse, 600 Granby St., Norfolk VA 23510
(804) 441-6331