ELR Citation: ELR 21509
No(s). 87-3138 (4th Cir. Oct 14, 1988)

The court holds that environmental groups are entitled to attorney fees under §505(d) of the Federal Water Pollution Control Act (FWPCA) for their challenge to the Corps of Engineers' determination that a tract of land was not wetlands and the Environmental Protection Agency's (EPA's) failure to override the determination. The court first holds that the suit is a citizen suit under FWPCA §505(a)(2), since the Corps has a non-discretionary duty under FWPCA §404 to make reasoned wetlands determinations. Congress could not have intended to allow citizen suit challenges to EPA's erroneous wetlands determinations but not to Corps determinations that EPA fails to override. The court holds that the fact that the Corps' wetlands determination is reviewable under the standards in the Administrative Procedure Act does not alter the jurisdictional base of the court's award of attorney fees under the FWPCA. The court holds that plaintiff is a "prevailing party" under §505(d), even though the Corps has not issued a final determination that the tract is wetlands. Attorney fees are more readily awarded to partially prevailing parties in environmental litigation than in traditional civil cases and are appropriate where the action promotes the purposes of the law. Whether or not the Corps and EPA ultimately determine that the tract is wetlands, plaintiff has ensured that the agencies will fulfill their duties under the FWPCA.

The court holds that the district court did not err in calculating the award based on rates charged by attorneys in Washington, D.C., instead of Raleigh, North Carolina, where the case was tried. Plaintiff produced evidence that its efforts to obtain local counsel were unsuccessful and that the nearest available counsel with the requisite expertise was in Washington, D.C. The court holds that the district court erred in using current rates to compute the lodestar, since current rates may not be used when computing attorney fees to be paid by the government. The district court must recompute the award using the rates in effect at the time the attorney hours were expended. The court holds that the district court did not calculate a lodestar figure and then adjust it upward to account for factors such as the expertise of counsel, but instead properly considered these factors in computing the lodestar figure. The court holds that the district court properly used market rates in determining the lodestar for the nonprofit law firm. The court holds that the district court properly assessed the entire fee award against the government. Companies that owned the land or proposed to develop it only did what they were permitted to do by the Corps.

[The district court decision on attorneys fees is published at 18 ELR 20008, and its decision on the merits is at 16 ELR 20388.]