ELR Citation: ELR 20254
No(s). HAR-89-2639 (D. Md. Aug 14, 1991)

On a motion for reconsideration of its earlier decision, the court holds that a real estate developer's rulemaking challenge to the Army Corps of Engineers' Federal Manual for Identifying and Delineating Jurisdictional Wetlands is not ripe, and preenforcement review of the Corps' cease and desist order is not available under the Federal Water Pollution Control Act. The court holds that the agency's action is not final until a delineation takes place using the 1989 Manual. The court notes that even if the complaint was ripe, the court would defer to the agency under the doctrine of primary jurisdiction. The court holds that the plaintiffs have not exhausted administrative remedies, and the avenues of an administrative hearing and a permit application remain open. The court also finds that the plaintiffs have not demonstrated compelling hardship if judicial relief is withheld. The only hardship advanced is financial loss caused by delay. Finally, the court dismisses the plaintiffs' request for a declaratory judgment on constitutional due process, equal protection, and takings claims.

[The court's earlier decision is published at 21 ELR 20123 and a digest of pleadings in that phase of the case is published at ELR PEND. LIT. 66059.]

Counsel for Plaintiff
Warren K. Rich
Graham & James
2000 M St. NW, Ste. 700, Washington DC 20036
(202) 463-0800

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

Richard D. Bennett, U.S. Attorney; Jane F. Barrett, Ass't U.S. Attorney
U.S. Courthouse, 8th Fl., 101 W. Lombard St., Baltimore MD 21201
(410) 539-2940