Law360 is reporting that a Federal District Court Judge in South Carolina is allowing NGOs, including the South Carolina Coastal Conservation League, to continue their Clean Water Act citizen suit against the Army Corps of Engineers and EPA for permitting the construction of a second mixed use development on the Cainhoy Plantation in Charleston. Through the miracle of Google I can tell you that the Plantation, half of which has already been developed, is adjacent to the Wando River, which is most certainly a Water of the United States, and that many of its first non-native inhabitants were 17th century "snowbirds" from Massachusetts.

Judge Gergel rejected EPA's and the Corps' position that the NGOs' lawsuit was unauthorized by the Clean Water Act because EPA's and the Corps' decisions to issue the permit in question were discretionary and the Act authorizes such suits against the Government only over nondiscretionary matters.

The Judge found that EPA has a nondiscretionary duty to "protect wetlands" which it may have abdicated "by not objecting of [sic] vetoing the permit in violation of section 404 of the Clean Water Act."

I wonder whether the DOJ and EPA lawyers involved were struck by the similarity between the Judge's reference to EPA's nondiscretionary duty to protect wetlands and EPA's defense of its most recent rule determining the reach of the Clean Water Act on the ground that is consistent with the Act's broad objective of restoring and protecting the Waters of the United States.

More importantly, how is a ruling that anyone can challenge any EPA permitting decision because that decision may be inconsistent with EPA's statutory duty to protect wetlands consistent with the principle of judicial deference to agency decision making that has been the law of the United States since Chevron? [I should add that the NGOs also alleged violations of the Administrative Procedures Act, but those claims were dismissed by the Judge in connection with his ruling that the NGOs' citizen suit under the Clean Water Act will proceed.] I'll be following this case as the Executive and Judicial Branches of our Federal Government continue to fill the Clean Water Act vacuum created by the Legislative Branch.

Judge Gergel said allowing the environmental groups' claims to move forward is consistent with several of the court's prior cases involving the CWA, and he disagreed with the Army Corps' argument that the CWA citizen suit provision can't be used to challenge the substance of an agency decision.

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