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PUERTO RICO v. ALEXANDER

August 13, 1977

THE COMMONWEALTH OF PUERTO RICO, Plaintiff
v.
CLIFFORD ALEXANDER, JR., et al., Defendants



The opinion of the court was delivered by: WADDY

 Joseph C. Waddy, United States District Judge

 This is an action for declaratory and injunctive relief arising under the Federal Water Pollution Control Act Amendments of 1972 *fn1" (FWPCA), 33 U.S.C. §§ 1251-1376, and the Puerto Rican Federal Relations Act of 1950 (FRA), 48 U.S.C. §§ 731-916. Plaintiff, the Commonwealth of Puerto Rico, seeks a determination of whether the FRA limits the federal government's FWPCA regulatory powers over the Commonwealth's unnavigable waters. More specifically, this Complaint alleges that Section 404 of the Water Pollution Act, 33 U.S.C. § 1344, and the regulations promulgated thereunder, *fn2" which provide for the issuance of permits to discharge dredged or fill material into the waters, are inapplicable to the Commonwealth in light of Sections 7 and 9 of the FRA, 48 U.S.C. §§ 747, 734, respectively.

 This case is before the Court on defendants' motion to dismiss and cross motions of plaintiff and defendants for summary judgment. *fn3"

 Defendants in this action are the Secretary of the Army and the Chief of the Army Corps of Engineers (Corps), who are responsible for issuing the FWPCA Section 404 discharge permits, and the Administrator of the Environmental Protection Agency, who has responsibility for the administration of the Water Pollution Act, 33 U.S.C. § 1251(d).

 The Army Corps of Engineers has adopted regulations implementing its discharge permit responsibilities under FWPCA Section 404. The parties to this action are agreed that those regulations, specifically 33 C.F.R. § 209.120(d)(2) (1976), expand the Corps' jurisdiction under that section, titled "Navigable waters", to include areas which were previously considered to be unnavigable waters. In light of recent judicial decisions expanding the scope of "navigable" waters under the FWPCA *fn4" plaintiff does not challenge the Corps' authority to promulgate such regulations, but it does contend that Sections 7 and 9 of the Puerto Rican Federal Relations Act, 48 U.S.C. §§ 747, 734, respectively, make those regulations inapplicable to Puerto Rico's unnavigable waters.

 It is Puerto Rico's contention that the Corps' regulations require plaintiff to obtain dredge and fill discharge permits from the federal government for bodies of water which are controlled by Puerto Rico, which have always been under Puerto Rican sovereignty, and over which the federal government and the Congress have no jurisdiction.

 This is not an action which presents the Court with a specific body or bodies of water for a determination of whether the Corps' regulations require the plaintiff to obtain the appropriate discharge permit. This is not an action for review of a denial by the Corps of a Puerto Rican permit application. Rather, this action is for a pre-enforcement review of federal regulations and the scope of those regulations as applied to the Commonwealth of Puerto Rico's unnavigable waters. Plaintiff is here seeking declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201, 2202, and 1651.

 The defendants respond by alternative motions to dismiss or for summary judgment. The Court considers first defendants' motion to dismiss this Complaint.

 Defendants' Motion to Dismiss

 The federal defendants move to dismiss this action as unripe and not appropriate for judicial resolution, and because plaintiff lacks standing to bring this Complaint. It is their contention that judicial resolution at this point would involve the Court prematurely in resolving an abstract question, as no particular body of Puerto Rican waters is now before the Court for a focused determination of FWPCA applicability. Defendants submit that the Commonwealth is asking the Court to write a treatise on federal jurisdiction over Puerto Rican waters. Defendants further contend that plaintiff has failed to show any real or immediate injury since no one has been denied a dredge permit, or been required to apply for one. They conclude that this Court lacks jurisdiction over the subject matter of this action.

 Plaintiff alleges that the expenses required to comply with the FWPCA regulations are its injury in fact. It maintains that it must now establish procedures consistent with the Corps' regulations -- present operations must be revised, maintenance schedules changed, operational methods and procedures altered, pending and future projects delayed or aborted -- all at considerable expense and inconvenience to plaintiff. It also claims that such expenditures are irreversible and irretrievable.

 The Supreme Court has provided considerable guidance in the area of pre-enforcement review of agency regulations. Abbott Laboratories v. Gardner, 387 U.S. 136, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967) concerned pre-enforcement review of certain HEW prescriptive drug labeling regulations. The regulations were definitive and compliance was expected. They had the status of law and, as in this case, ...


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