ELR Citation: ELR 20033
No(s). 85-2747 (D.D.C. Sep 25, 1985)

The court holds that Environmental Protection Agency (EPA) has power under the Federal Water Pollution Control Act (FWPCA) §404(c) to veto a dredge and fill permit issued by the Corps of Engineers (Corps) and EPA's initiation of public hearings on proposed construction in Sweeden's Swamp, a wetland, in Massachusetts, is neither illegal nor final agency action. Although Congress gave the Corps primary responsibility for §404 permit issuance under guidelines contained in §404(b), this authority is subject to EPA's express veto power over the Corps' permits in §404(c). Nothing in §404(c) suggests the veto power is extraordinary or highly limited, and EPA's infrequent use of the power does not, by itself, change a broadly defined authority into a narrow one, the court observes. The court declines to rule as a matter of law that EPA's Regional Administrator (RA) abused his discretion in initiating §404(c) proceedings to determine if practical alternative sites existed under §404(b). The RA had reason to believe that the permit issuance would produce unacceptable adverse effects on the environment based upon the incomplete record and the ill-defined mitigation project. The court concludes that to decide otherwise would abrogate EPA's §404(c) veto power. The court rules that the initiation of §404(c) proceedings is not final agency action. The proceedings represent only the initiation of an investigation and no agency determinations have been made. Judicial review would hinder the FWPCA's purpose and interfere with the congressional intent that EPA would decide questions concerning the practical alternatives and values of mitigation projects.

Counsel for Plaintiff
R. Sarah Compton
McDermott, Will & Emery
1850 K St. NW, Washington DC 20006
(202) 887-8000

Michael S. Gardener
Mintz, Levin, Cohn, Ferris, Glovsky & Popeo
One Financial Ctr., Boston MA 02111
(617) 542-6000

Counsel for Defendants
Lawrence R. Liebesman
Land and Natural Resources Division
Department of Justice, Washington DC 20026-3986
(202) 633-2281

Catherine Winer
Office of General Counsel
U.S. Environmental Protection Agency, 401 M St. SW, Washington DC 20460
(202) 475-8040

Ann Williams-Dawe
Office of Regional Counsel
U.S. Environmental Protection Agency
Region I, 2203 J.F. Kennedy Federal Bldg., Boston MA 02203
(617) 223-4900

Victoria O'Meara
Office of General Counsel
Department of the Army, The Pentagon, Washington DC 20310
(202) 697-9235

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

Michael Bean
Environmental Defense Fund
1525 18th St. NW, Washington DC 20036
(202) 387-3500