ELR Citation: ELR 20836
No(s). 92-1589 (3d Cir. Mar 16, 1993)

The court holds that a challenge by citizens to a U.S. Army Corps of Engineers' (Corps') determination that a new landfill project may proceed under a Federal Water Pollution Control Act (FWPCA) §404 general nationwide permit is not ripe for review, because construction or operation of the landfill project, which is the focus of this case, cannot go forward unless and until the state issues an FWPCA §401 water quality certificate. Although the Corps' decision represents its final position on the extent of the wetlands involved, an agency's last position may not be final for purposes of review, and no certain or impending harm has occurred to warrant a suit. The court holds that review of a district court's decision regarding ripeness is plenary, and that dismissing an unripe appeal prevents courts from becoming involved in administrative policy disputes, as well as protects agencies from judicial interference. Further, a state may set more stringent water quality standards than required by the FWPCA, giving it the equivalent of veto power over an agency's permitting decision.

Counsel for Appellees
Seth M. Barsky, Dirk D. Snel, Martin W. Matzen
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Appellant
Albert J. Slap
Fox, Rothschild, O'Brien & Frankel
2000 Market St., 10th Fl., Philadelphia PA 19103
(215) 299-2000

Lewis, J. (before Greenberg and Roth, JJ.)