ELR Citation: ELR 21322
No(s). C90-1515WD (W.D. Wash. May 24, 1991)

The court holds that landowners' challenge to the Federal Manual for Identifying and Delineating Jurisdictional Wetlands is not ripe for review. After a consulting firm prepared a report for the landowners using the wetlands delineation methodology in effect at the time, the landowners determined that they were not required to obtain a Federal Water Pollution Control Act §404 permit from the Corps of Engineers for placement of 200,000 cubic yards of fill on their property. The Corps later informed the landowners that the methodology used in the consulting firm's report had been superseded by the methodology in the Federal Manual and that plaintiffs should revise their application drawings and report to reflect the new procedures. The landowners allege that the Federal Manual is void because it was adopted without following the Administrative Procedure Act's notice and comment rulemaking procedures, and that they acquired a vested property right to have their application evaluated under the wetlands criteria in effect at that time. The court holds that this challenge is not ripe for review. The Corps' request for revised application materials is not final agency action and the Corps has not decided whether plaintiff will be permitted to place the fill on their property. Plaintiffs will be free to challenge any inappropriate use of the Federal Manual as part of a challenge to a final permit decision.

Counsel for Plaintiff
David Halinen
800 Bellevue Way NE, Ste. 376, Bellevue WA 98004
(206)454-8272

Counsel for Defendant
Charles Pinnell
U.S. Attorney's Office
3600 Seafirst Plaza Bldg., 800 Fifth Ave., Seattle WA 98104
(206)442-7970

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