Plaintiffs could maintain suit under CWA citizen suit provision based on failure of EPA to exercise oversight duties imposed on EPA to review permits granted by Army Corps, rules S.C. District Court

Plaintiffs could maintain suit under CWA citizen suit provision based on failure of EPA to exercise oversight duties imposed on EPA to review permits granted by Army Corps, rules S.C. District Court

Plaintiffs challenged a permit issued by the U.S. Army Corps of Engineers (the Corps) in connection with the construction of a marine container terminal and associated highway. Plaintiffs asserted that less damaging alternatives should have been considered, and that the project posed a threat to the North Atlantic Right Whale, a highly endangered species. Plaintiffs alleged that the Corps in essence chopped the project into a series of small segments so that the overall impact of the project would not be assessed, including air and surface water impacts. Defendants filed a FRCP 12(b)(6) motion.
 
In S.C. Coastal Conservation League v. United States Army Corps et al, 2008 U.S. Dist. LEXIS 69499 (D.S.C. 2008), the District Court, rejecting the motion of defendants in part, found that it had jurisdiction over the CWA citizen suit because the lawsuit specifically indicated that it was filed against various agencies, including EPA. In particular, the plaintiffs alleged that the EPA violated the CWA and the APA by failing to veto the Corps' permit.
 
The District Court noted that the U.S. Court of Appeals for the Fourth Circuit had stated that a plaintiff could maintain a citizen suit under the CWA, 33 U.S.C. §1365(a)(2), when the EPA's administrator failed to exercise the duty of oversight imposed by 33 U.S.C. §1344(c). However, the Court granted defendants' motion to dismiss the claims under the APA, 5 U.S.C. §704. A suit could be maintained under the APA only if the claim was not covered by the CWA citizen suit provisions; since the court held that plaintiffs could maintain their CWA suit, the APA claim was dismissed.