ELR Citation: ELR 20846
No(s). 280-35 (S.D. Ga. Jun 27, 1980)

The court rules that §404(s) of the Federal Water Pollution Control Act (FWPCA) confers a discretionary and not a mandatory duty on the Corps of Engineers to enforce compliance with the statute's permit requirements. Looking to the actual language of §404(s) to determine congressional intent, the court holds that the presumption of a mandatory intent created by use of the word "shall" may be overridden by contrary evidence revealed by the statute's purpose and legislative history, and by agency interpretation of the statute. The court then follows the Fifth Circuit's lead in Sierra Club v. Train, which interpreted the parallel enforcement provisions of FWPCA §309(a) to be discretionary, rather than mandatory. Since §309(a) and §404(s) of the Act have substantially identical language, purposes, and legislative histories, and have been given similar agency interpretations, and since the Sierra Club decision did not depend on the context in which the issue arose, the court applies the Fifth Circuit's interpretation of §309(a) to §404(s), and holds that the Corps' enforcement authority under FWPCA §404(s) is discretionary. Accordingly, the court dismisses plaintiff's claim against the Corps for failure to state a claim upon which relief can be granted.

Counsel for Plaintiff
Michael K. Jablonski
Savell, Williams, Cox & Angel
2300 The Equitable Bldg., 100 Peachtree St., Atlanta GA 30043-6201
(404) 521-1282

Austin E. Catts
The Garland Firm (formerly Garland, Nuckolls, Kadish, Martin & Catts, P.C.)
92 Luckie St. NW, Atlanta GA 30303
(404) 577-2225

Counsel for Defendant
David Buente
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2753