ELR Citation: ELR 20003
No(s). 89-453- (E.D. Va. Aug 11, 1989)

The court holds that it lacks subject matter jurisdiction under the Federal Declaratory Judgment Act and the federal question statute over a developer's challenge to an Environmental Protection Agency administrative order to cease and desist the filling of wetlands. The Declaratory Judgment Act does not supply its own jurisdictional base and thus does not provide plaintiff a private cause of action. Similarly, the federal question statute does not provide plaintiff access to the federal courts under the Federal Water Pollution Control Act (FWPCA). Although the FWPCA confers the right to sue on both government officials and private citizens, the FWPCA enforcement provisions, the citizen suit provision, and the non-discretionary duty provision, nor the savings clause do not afford the developer a cause of action or an implied right of action. Private remedies in addition to those expressly provided should not be implied and thus judicial review is limited to the FWPCA's express enforcement provisions. Additionally, the court holds that the developer must exhaust its administrative remedies to ensure that EPA has the first opportunity to consider the adjacency issue and develop a record for judicial review. The question of whether plaintiff's property is an adjacent or isolated wetland is a factual and not a purely legal issue. EPA's jurisdiction is a factual issue properly left to the agency's expertise. The developer's attempt to seek preenforcement review of EPA's jurisdictional decision not only encroaches on EPA's expertise but constitutes an attempt to make an end-run around the Administrative Procedure Act.

Counsel for Plaintiffs
Richard Nageotte
Nageotte & Borinsky
14908 Jefferson Davis Hwy., Woodbridge VA 22191
(703) 643-2066

Counsel for Defendants
Susan L. Watt, Ass't U.S. Attorney
Rm. 401, 600 Granby St., Norfolk VA 23510
(804) 441-6331