ELR Citation: ELR 20388
No(s). 83-1288-CIV-5 (E.D.N.C. Dec 20, 1985)

In a Federal Water Pollution Control Act §505 citizen suit to challenge a determination by the Corps of Engineers (Corps) that a tract of land in North Carolina was not a wetland under §404 and subject to a permit for dredge and fill operations, the court holds that the Corps' refusal to assert jurisdiction over it is arbitrary and capricious within the meaning of the Administrative Procedure Act (APA). The court first rules that the appropriate standard of review is the arbitrary and capricious standard set out in §706(2)(A) of APA. The few courts that have applied the deferential standard to a wetlands determination have not adequately discussed the appropriate standard of review. The court rules that the Corps wrongfully declined jurisdiction of the tract. The nature of the land is such that the presence of wetlands is not readily apparent by superficial inspection. The Corps must therefore use its scientific expertise to analyze the tract in order to make an accurate jurisdictional determination. In addition, in this case, the Corps conceded that some difficult jurisdictional questions existed concerning the classification of the tract as nonwetlands. The court finds no scientific basis in the record supporting either the agency's final determination or its ability to quickly resolve an issue it had previously found difficult. The court declines, however, to give the Corps detailed instructions on how to proceed with the wetlands determination, ruling that it is empowered only to review the Corps' administrative decision.

[Pleadings in this case appeared at ELR PEND. LIT. 65800.]

Counsel for Plaintiffs
Derb S. Carter
National Wildlife Federation
P.O. Box 10626, Raleigh NC 27605
(919) 833-1923

S. Henri Johnson
P.O. Box 1005, New Bern NC 28560
(919) 633-4848

Counsel for Defendants
H. Robert Showers, Ass't U.S. Attorney
P.O. Box 26897, Raleigh NC 27611
(919) 755-4530

Jean A. Kingrey
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2716