ELR Citation: ELR 20208
No(s). 88-1608-Y (D. Mass. Sep 25, 1989)

The court holds that the United States Justice Department, at the Army Corps of Engineers' behest, can bring suit for civil penalties for an alleged permitless discharge in violation of the Rivers and Harbors Act and the Federal Water Pollution Control Act (FWPCA). While the FWPCA authorizes the Corps to bring an action for a violation of any condition or limitation in an issued permit, the statute is silent as to whether the Corps has authority to bring an action for a permitless discharge. Rather, the FWPCA authorizes the Environmental Protection Agency (EPA) to seek civil penalties for permitless discharges. The Corps has been referring permitless discharge cases to Justice for several years and the courts have acquiesced. Recent memoranda of agreement between the Corps and EPA specifically addressed enforcement of permits and indicated EPA gave the Corps responsibility to act as the lead enforcement agency in all cases regarding permitless discharges. The Corps' enforcement authority is not an expansion of the Corps' power under the FWPCA but is limited, does not run afoul of any congressional policy underlying the relevant statutes, and may be revoked by the EPA at any time.

Counsel for Plaintiff
Andrew S. Hogeland, U.S. Attorney
1107 John W. McCormack Post Office & Courthouse, Boston MA 02109-4583
(617) 223-9400

Counsel for Defendant
Mark Stull, Gordon N. Schultz
Schultz & Bednarz
60 State St., Boston MA 02109
(617) 227-6200