ELR Citation: ELR 21490
No(s). s. 92-1979, -1983 (6th Cir. Sep 21, 1994)

The court upholds a permanent injunction that prevents the U.S. Environmental Protection Agency (EPA) from transferring authority under Federal Water Pollution Control Act (FWPCA) §404 dredge and fill permit from the U.S. Army Corps ofEngineers to the state of Michigan. A developer had filed a combined state and federal application with the state for a §404 permit to fill 3.7 acres of wetlands. The state initially denied the permit application after EPA notified the state that it objected to the proposed permit. Following negotiations with the developer, however, the state proposed to approve the permit. EPA informed the state that, pursuant to regulatory authority, it had transferred permitting authority from the state to the Corps because the state had failed to satisfy EPA's objections within 90 days, as required by §404(j). Roughly one-and one-half years later, EPA decided to withdraw its objections to the permit, claiming to return permitting authority to the state.

The court first holds that it has jurisdiction to review EPA's withdrawal of its objections. Although an EPA decision to object does not constitute final agency action and a decision not to object is within the Agency's discretion, EPA's withdrawal of its objections is a final decision that, if unreviewed, will terminate the federal government's role in the case. The court holds that Congress did not intend to foreclose federal court review where EPA has allegedly abandoned its supervisory role and revoked the authority of another federal agency. The court next holds that where a statute both requires an agency to act within a certain time period and specifies a consequence if the requirement is not met, the agency will lose jurisdiction to act. The FWPCA specifically provides 90 days in which a state must comply with EPA objections, and a state's failure to do so results in the transfer of authority to the Corps. Thus, the court holds that Congress intended to divest the state agency of jurisdiction over the permit completely, and vest authority in the Corps, after expiration of the 90-day deadline. The court also holds that the district court had subject matter jurisdiction over the director of the Michigan Department of Natural Resources because plaintiffs alleged a federal question.

[The district court opinion is published at 23 ELR 21185.]

Counsel for Plaintiff
Thomas A. Baird
White, Beekman, Przybylowicz, Schneider & Baird
2300 Jolly Oak Rd., Okemos MI 48864
(517) 349-7744

Counsel for Defendants
Thomas H. Pacheco
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before: LIVELY, JONES, and MILBURN, Circuit Judges.