ELR Citation: ELR 20344
No(s). 89-0103 C (E.D. Mo. Oct 5, 1990)

The court holds that preenforcement review of an Army Corps of Engineers' order directing a landowner to cease and desist the construction of a levee on wetlands is unavailable under §404 of the Federal Water Pollution Control Act. To allow parties to challenge the existence of the Corps' jurisdiction before enforcement proceedings are initiated would delay the agency's response and would frustrate its efforts to reach an amicable resolution of disputes. Established precedent states that a landowner may not obtain judicial review of agency action until the agency either assesses civil penalties or institutes an enforcement action. Although the agency may choose to issue a compliance order before undertaking enforcement, it need not do so. The court also holds that the landowner's argument, raised in a single, cursory reference in a footnote to a brief, that the Corps improperly relied on an interagency wetlands delineation manual to assert jurisdiction is beyond the scope of the pleadings.

Counsel for Plaintiff
Richard A. Mueller, Edwin G. Harvey, John G. Medler Jr.
Coburn, Croft & Putzell
One Mertantile Ctr., St. Louis MO 63101

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

Craig D. Galli
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

William H. Ward
Office of Regional Counsel
U.S. Environmental Protection Agency Region VII
726 Minnesota Ave., Kansas City KS 66101
(913) 551-7000