If Industrial takes no further action, it is in no danger of being found in violation of law, or subject to any administrative, civil or criminal penalties. Thus, it cannot be said that "immediate compliance is expected". Solar Turbines, 879 F.2d at 1080.
The third Solar Turbines factor -- whether the agency action has "an immediate impact on the operations of the plaintiff" -- also weighs against a finding of finality. Industrial contends that, as a result of the Corps' action, "the development of the project has come to a complete halt." Brief in Opposition at 15. Industrial, however, has mischaracterized the cause and effect relationship between the Corps' action and its inability to proceed with its project. The Corps' decision places no obligations on Industrial additional to those already imposed by the CWA. Though Industrial could be penalized if it went forward with its plan to fill the wetlands site, this threat does not result from the Corps' decision as to the kind of permit that must be obtained, but from the CWA statutory requirement that a permit must be obtained.
The CWA requires that a party obtain a permit before discharging fill into waters of the United States. 33 U.S.C. § 1311. Industrial has not yet obtained a permit, nor has it been denied a permit. The Corps was clearly within its statutory authority when it promulgated regulations that retained Corps discretion to suspend use of a nationwide permit and require an individual permit when it found that such action was necessary to protect an aquatic environment. Nothing in the CWA confers a vested right to discharge fill into waters of the United States without an individual permit. It cannot therefore be said that the Corps' decision to require an individual permit is the cause of any hardship to Industrial of a kind that weighs in favor of a finding of finality. Industrial's claimed hardship is essentially no more than an argument that "it prefers to move ahead with the project and [the individual permit requirement] makes it more difficult. . . ." CEC Energy Co. v. Public Service Comm'n of the Virgin Islands, 891 F.2d 1107, 1111 (3d Cir. 1989). Though the burden of completing the individual permit application process could arguably be described as "substantial, it is different in kind and legal effect from the burdens attending what heretofore has been considered to be final agency action." FTC v. Standard Oil Co. of California, 449 U.S. 232, 242, 101 S. Ct. 488, 494, 66 L. Ed. 2d 416 (1980).
Solar Turbines dictates that the Court next consider whether the dispute involves "a pure question of law, without the need for factual development." 879 F.2d at 1080. Industrial seeks review of an exercise of the Corps' discretion under a broadly-defined standard, i.e., whether the nationwide permit with additional conditions is "sufficient to address concerns for the aquatic environment." 33 C.F.R. § 330.8(c)(1). This subjective determination is necessarily fact intensive and dependent, and can hardly be characterized as a "pure question of law." In view of the discretionary nature of the challenged Corps action, the record as it stands is insufficiently developed to provide a basis for meaningful judicial review.
Last, the Court must determine whether immediate judicial review would speed enforcement of the relevant act. Solar Turbines, 879 F.2d at 1080. The Court concludes that it would not. A major purpose of the CWA is to protect the integrity of the nation's waters. Industrial seeks review of the Corps' decision to require additional documentation of Industrial's plans before it would decide whether the planned discharge will adversely affect those waters. Given the need for more specific findings of fact to facilitate meaningful review if the Court were to exercise jurisdiction, an outright reversal of the Corps' decision would not be a possibility. Moreover, the challenged action is discretionary. In the best case from Industrial's perspective, the Court might find that the Corps abused its discretion, and remand the case for reconsideration. Thus, judicial review would do little to speed enforcement of the act. It is more likely that judicial review at this time would "interfere with the proper functioning of the agency and  burden the courts." Standard Oil, 449 U.S. at 242, 101 S. Ct. at 494. In addition, because Industrial's individual permit application is currently under review of the challenged Corps action. Moreover, the possibility remains that the Corps' suspension of Nationwide Permit 26 could be removed. See 33 C.F.R. § 330.8(c)(1). Therefore, the Court believes that "judicial intervention into the agency process [would] deny the agency an opportunity to correct its own mistakes and to apply its expertise. . . . [and would] also lead to piecemeal review which at the least is inefficient and upon completion of the agency process might prove to have been unnecessary." Standard Oil, 449 U.S. at 242, 101 S. Ct. at 494.
Hence, the Court concludes that the challenged agency action is not final, and is not subject to judicial review pursuant to 5 U.S.C. § 704. For the reasons set forth above, the Court also finds unpersuasive the reasoning in Riverside Irrigation District v. Stipo, 658 F.2d 762 (10th Cir. 1981), a case in which the court held that jurisdiction existed to review an Army Corps of Engineers decision that required a party to comply with individual conditions imposed on Nationwide Permit 26 or obtain an individual permit.
One last argument must be addressed. Industrial claims that 33 C.F.R. § 320.1(a)(6) "mandates a finding that the decision of the Corps constitutes final agency action." Brief in Opposition at 12. That regulation provides:
The Corps has authorized its district engineers to issue formal determinations concerning . . . the applicability of general permits . . . A determination pursuant to this authorization shall constitute a Corps final agency action.
33 C.F.R. § 320.1(a)(6).
Industrial's "plain language" argument was rejected in Lotz Realty Co. v. United States, 757 F. Supp. 692, 697 (E.D. Va. 1990). The Lotz court determined that the regulation could not transform an otherwise unfinal action into a final one. Id. ("this regulation applies only when the determination at issue is by nature the final agency action in a particular matter"). Thus, implicit in the Lotz court's decision was the conclusion that the agency exceeded the scope of its statutory authority to the extent it purported to create federal court jurisdiction.
This Court does not reach the issue of the validity of § 320.1(a)(6), because it concludes that, even when applied literally, that regulation does not control the agency determination at issue in this case. By its plain terms, § 320.1(a)(6) applies only to "formal determinations . . . concerning . . . the applicability of general permits." (emphasis added). The Corps in this case made no "formal determination" as to the "applicability" of Nationwide Permit 26. It did not determine that Nationwide Permit 26 was "applicable" to Industrial's proposed discharge, nor did it determine that Nationwide Permit 26 was "inapplicable" to Industrial's proposed discharge.
The only pre-condition to the "applicability" of Nationwide Permit 26 for discharges into specified waters is that the proposed discharge will not cause the loss or substantial adverse modification of more than 10 acres of such waters. 33 C.F.R. § 330.5(a)(26). A determination of the "applicability" or "inapplicability" of Nationwide Permit 26 to a proposed discharge therefore hinges on the area of specified United States waters that the Corps finds will be lost or adversely modified to a substantial extent.
In this case, the Corps never formally determined what area of United States waters would be lost or adversely modified by Industrial's proposed discharge of fill, but instead "suspended use" of the permit under the discretionary authority of 33 C.F.R. § 330.8(c)(1). "Suspension of use" of a nationwide permit differs materially from a finding that the permit is "inapplicable." An applicability determination involves consideration of the specific criteria required by the permit, and findings whether those criteria have been met. "Suspension of use," by contrast, is an abrogation of the nationwide permit, rendering it ineffective, with no need to consider the permit's required criteria. Because the Corps "suspended use" of Nationwide Permit 26, it never determined one way or another whether Nationwide Permit 26 was "applicable." Therefore, 33 C.F.R. § 320.1(a)(6) has no bearing on the outcome of this motion.
For the reasons stated above, the Corps' motion to dismiss Industrial's complaint for lack of subject matter jurisdiction will be granted.
An appropriate order is attached.
Dated: June 8, 1992
ALFRED M. WOLIN, U.S.D.J.
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 796 F. Supp. 121.
In accordance with the Court's Opinion filed herewith,
It is on this 8th day of June, 1992,
ORDERED that defendants' motion to dismiss plaintiff's complaint for lack of subject matter jurisdiction is granted, and the complaint is hereby dismissed.
ALFRED M. WOLIN, U.S.D.J.