ELR Citation: ELR 20116
No(s). 82-3632 (D.D.C. Dec 17, 1984)

The court rules that the Army Corps of Engineers' inclusion of a broad grandfather clause in their October 5, 1984, Federal Water Pollution Control Act §404 regulations does not violate a settlement agreement reached in this case, 14 ELR 20262. The court first notes that administrative agencies, when implementing regulatory changes, often include grandfather provisions to avoid the inequity of retroactive application of regulations. Next, the court rules that the grandfather provision does not constitute a breach of the settlement agreement since that agreement does not expressly prohibit defendants from providing an equitable transition to the new regulations. Instead, the court determines, the grandfather clause provides a reasonable, fair transition to the new general permits for those dischargers that substantially and justifiably relied upon the July 1982 general permits and, therefore, ensures against a retroactive application of defendants' regulations that would result in manifest injustice to such dischargers. In accordance with the terms of the settlement agreement, the court dismisses all but four of the counts in the complaint with prejudice.

Counsel for Plaintiffs
James T.B. Tripp
Environmental Defense Fund, Inc.
444 Park Ave. S., New York NY 10016
(212) 686-4191

Jerry Jackson
National Wildlife Federation
1412 16th St. NW, Washington DC 20036
(202) 797-6800

Hope M. Babcock
National Audubon Society
645 Pennsylvania Ave. SE, Washington DC 20003
(202) 547-9009

Counsel for Defendants
Victoria O'Meara
Office of the General Counsel
Department of the Army, Washington DC 20310
(202) 697-5127

Catherine A. Winer
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 382-7703

William M. Cohen, Nancy Bryson, James Spears, Robert D. Daniel
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2704

Counsel for Defendants-Intervenors
Mark G. Weisshaar, Turner T. Smith Jr., Michael B. Barr, Charles D. Ossola
Hunton & Williams
P.O. Box 19230, Washington DC 20036
(202) 955-1500