ELR Citation: ELR 20123
No(s). PN-89-2639 (D. Md. Nov 16, 1990)

The court rules that a development company failed to meet its burden for obtaining a preliminary injunction to prevent the Army Corps of Engineers from enforcing §404 of the Federal Water Pollution Control Act (FWPCA) by means of a Federal Manual for Identifying and Delineating Jurisdictional Wetlands. The manual was adopted in January 1989, without formal notice and opportunity to comment, to provide a single interagency manual for wetlands delineation. The Corps ordered the company to cease and desist from filling wetlands and selling lots at its residential development, and the company alleged that the Corps exceeded its authority under FWPCA §404 when it adopted the manual's substantive changes to the Corps' wetlands jurisdiction and applied its new intepretation to delimit wetlands on the company's land. The court first holds that the case is not ripe. The case is in a preliminary stage because the company has not performed a delineation on any plan and has not pursued any permit for continuing work on delineated wetlands. When a delineation is made, the company will have the opportunity to contest it. The court next holds that granting review would violate the doctrine of primary jurisdiction. Although the company concedes that some acreage is wetlands, a factual dispute remains whether additional acres are wetlands and whether they would generate hydrophytic vegetation if left unfarmed. These issues would best be decided using the agency's scientific expertise. Further, the FWPCA does not provide preenforcement review, and prior precedent that proscribes the Corps from asserting its jurisdiction in a memorandum without following rulemaking procedures is distinguishable. In this case, the company's challenge is over what portion of the disputed tract is wetlands, not whether jurisdiction is proper. The court thus holds that the company has not demonstrated a likelihood of success on the merits at this stage. Finally, the court balances the hardships to the parties and concludes that the public interest in protecting wetlands outweighs the company's potential economic injury. The company provided no evidence that its economic injury would lead to bankruptcy and should have applied for a permit to use wetlands when it began developing the land. Moreover, the wetlands may be lost by the time the case is adjudicated if the injunction is granted.

[Pleadings in this case are digested at ELR Pend. Lit. 66059 and 66063.]

Counsel for Defendants
Richard B. Stewart, Scott A. Schachter, Kimberlea Rea Cowley
Environment and Natural Resources Division
U.S. Department of Justice, P.O. Box 23986, Washington DC 20026-3986
(202) 786-4787

Jane F. Barrett, Ass't U.S. Attorney
District of Maryland, U.S. Courthouse
101 W. Lombard St., 8th Fl., Baltimore MD 21201
(301) 539-2940

Counsel for Plaintiffs
Warren K. Rich, Sharon K. Tucker, Frank E. Couper
Rich, Tucker & Rice
93 Main St., P.O. Box 589, Annapolis MD 21404
(301) 268-3090