ELR Citation: ELR 20359
No(s). C-90-0034-CAL (N.D. Cal. Dec 31, 1991)

The court holds that issuance of cease and desist orders by the Army Corps of Engineers under §404 of the Federal Water Pollution Control Act (FWPCA) is not final agency action reviewable by a district court. Based on decisions of courts in other circuits, the court concludes that a final agency determination occurs when the Corps files a civil enforcement action or when it rules on a permit application. Cease and desist orders create no penalties or obligations not already imposed by the Act. The court also concludes by analogy to cases involving the U.S. Environmental Protection Agency's jurisdiction, that the FWPCA itself precludes district court review at the stage of a Corps' cease and desist order. Thus, upon receipt of a cease and desist order, the landowner may either apply to the Corps for a permit, or proceed with its activities on the property and await an enforcement suit by the Corps.

[Related cases are published at 17 ELR 21006, 19 ELR 20420, 20 ELR 20477, and 22 ELR 20361.]

Counsel for Plaintiff
Edgar B. Washburn
Washburn, Briscoe & McCarthy
55 Frisco St., Ste. 600, San Francisco CA 94133
(415) 421-3200

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