Alliance to Save the Mattaponi et al v. United States Army Corps of Engineers et al

Memorandum in opposition to re MOTION to Dismiss for Lack of Jurisdiction And Memorandum In Support

D.D.C.March 30, 2007

1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ________________________________________________ ) ) ALLIANCE TO SAVE THE MATTAPONI, et al. ) ) ) ) Docket No. v. ) 1:06-cv-01268-HHK ) UNITED STATES ARMY CORPS OF ) ENGINEERS, et al. ) ) ) ________________________________________________) MEMORANDUM IN OPPOSITION TO THE UNITED STATES’ PARTIAL MOTION TO DISMISS Plaintiffs the Mattaponi Indian Tribe and Chief Carl T. Lone Eagle Custalow (“Tribe”) hereby oppose Defendants United States Army Corps of Engineers (“Corps”) et al. and United States Environmental Protection Agency’s (“EPA”) (collectively “United States”) motion to dismiss all claims asserted against EPA and the Tribe’s claims against the Corps asserted under the citizen suit provision of the Clean Water Act (“CWA” or “Act”), 33 U.S.C. § 1365(a). BACKGROUND I. Statutory Background A. The Clean Water Act Congress enacted the CWA “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters” and to attain a level of “water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water.” 33 U.S.C. § 1251(a). EPA and the Corps jointly Case 1:06-cv-01268-HHK Document 30 Filed 03/30/2007 Page 1 of 14 2 administer Section 404, which authorizes the issuance of permits for the discharge of dredged or fill material into the waters of the United States, including wetlands. 33 U.S.C. § 1344. EPA’s implementing regulations, known as the 404(b)(1) Guidelines, prohibit the issuance of a Section 404 permit if “there is a practicable alternative to the proposed discharge which would have a less adverse impact on the environment” or if the discharge will have “significantly adverse effects” on the “life stages of aquatic life and other wildlife,” “aquatic ecosystem diversity, productivity, and stability,” or “recreational, aesthetic, [or] economic values.” 40 C.F.R. § 230.10(a)-(c). Section 505(a)(2) of the Act provides that “any citizen may commence a civil action on his own behalf . . . against the Administrator where there is alleged a failure of the Administrator to perform any act or duty . . . which is not discretionary.” 33 U.S.C. § 1365(a)(2). B. The Administrative Procedure Act The Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706, provides jurisdiction for plaintiffs that have “suffer[ed] a legal wrong because of agency action,” id. § 702, to sue federal agencies for any nondiscretionary agency action alleged to be “arbitrary, capricious, an abuse of agency discretion, or otherwise not in accordance with law,” id. § 706(2)(A). Additionally, Section 702 waives sovereign immunity for all suits against federal agencies in which the plaintiff is not seeking monetary damages. Id. § 702 (“[A]n action in a court of the United States seeking relief other than money damages and stating a claim that an agency . . . acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States”). Case 1:06-cv-01268-HHK Document 30 Filed 03/30/2007 Page 2 of 14 3 II. Background A. Factual Background On November 16, 2005, the North Atlantic Division (“NAD”) of the Corps granted the CWA section 404 permit to the City of Newport News for the construction of the King William Reservoir (“KWR”), which will withdraw water from the Mattaponi River. This permit decision overturned the Norfolk (Virginia) District of the Corps’ initial recommendation to deny the KWR permit because it would cause or contribute to significant degradation of the Mattaponi River and its surrounding wetlands, because less harmful, practicable alternatives existed, and because, when weighing the costs against the benefits, the Norfolk District found the KWR project was contrary to the public interest. See U.S. Army Corps of Eng’rs, Final Recommended Record of Decision of the District Commander on Permit Application No. 93-0902-12 (July 2, 2001). The reservoir’s proposed withdrawal of up to 75 million gallons of water per day threatens to harm the Mattaponi River and its American shad population, on which the Tribe depends for its sustenance and way of life. The reservoir’s intake structure will be located at Scotland Landing, the Tribe’s prime fishing location, which is approximately three miles upstream of the Tribe’s reservation. In addition to the direct effects that the intake structure will have on shad eggs and larvae, the Tribe has reason to believe that the water withdrawals will disturb the river’s flow, increase the river’s sedimentation, and alter salinity levels, which will all adversely affect shad, striped bass, and other river species on which the Tribe depends. Case 1:06-cv-01268-HHK Document 30 Filed 03/30/2007 Page 3 of 14 4 B. Litigation Background Plaintiffs Alliance to Save the Mattaponi et al. initiated this lawsuit against the Corps on July 17, 2006. The Tribe filed a motion to intervene on November 8, 2006, which this Court granted on November 16, 2006. In its complaint, the Tribe asserts that this Court has jurisdiction over its claims against EPA and the Corps under, inter alia, APA sections 701-706 and CWA section 505(a)(2). The Tribe makes four claims against the Corps under CWA section 505(a)(2). Tribe Compl. ¶ 4 (citing 33 U.S.C. § 1365(a)(2)). First, the Tribe asserts that the Corps violated its nondiscretionary duty under the 404(b)(1) Guidelines to evaluate less harmful, practicable alternatives to the KWR project. Tribe Compl. ¶¶ 107-111. Second, the Tribe asserts that the Corps failed to investigate and balance factors relevant to the public interest review, as required by 33 C.F.R. § 320.4(a). Tribe Compl. ¶¶ 112-120. Third, the Tribe asserts that the Corps violated a second nondiscretionary duty under the 404(b)(1) Guidelines when it issued a permit that will significantly degrade the aquatic ecosystem. Tribe Compl. ¶¶ 121-129. Fourth, the Tribe asserts that the Corps issued a permit contrary to the public interest, in violation of 33 C.F.R. § 320.4(a)(1). Tribe Compl. ¶¶ 130-134. Because EPA has ultimate and final supervisory authority over the Corps’ administration of, and compliance with, Section 404 of the CWA, the Tribe also asserts two claims against EPA under the CWA for violation of nondiscretionary duties that the 404(b)(1) Guidelines impose. Specifically, the Tribe first asserts that EPA violated the 404(b)(1) Guidelines by allowing the issuance of the KWR permit despite the Corps’ failure to reevaluate less harmful alternatives in light of changes in the project’s design. Case 1:06-cv-01268-HHK Document 30 Filed 03/30/2007 Page 4 of 14 5 Tribe Compl. ¶ 111. Second, the Tribe asserts that EPA violated the 404(b)(1) Guidelines by allowing the Corps to issue the KWR permit despite evidence in the record that the KWR will “result in significant degradation of the aquatic ecosystem.” Tribe Compl. ¶ 129. On February 23, 2007, the United States moved to dismiss the Tribe’s assertion of CWA section 505(a)(2) as a basis for jurisdiction for the Tribe’s claims against the Corps, and moved to dismiss all claims asserted against EPA. STANDARD OF REVIEW In reviewing a motion to dismiss, courts must accept plaintiffs’ factual allegations as true and must construe complaints liberally in favor of plaintiffs. See Conley v. Gibson, 355 U.S. 41 (1957); Wilderness Soc’y v. Griles, 824 F.2d 4 (D.C. Cir. 1987). Courts can dismiss an action only if “no plausible inferences can be drawn from the facts alleged that, if proven, would provide grounds for relief.” Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82, 93 (D.C. Cir. 2002). ARGUMENT Both EPA and the Corps have nondiscretionary duties under CWA section 404, and CWA section 505(a)(2) provides this Court with jurisdiction to review the failure of either agency “to perform any act or duty . . . which is not discretionary.” 33 U.S.C. § 1365(a)(2). EPA retains administrative authority over Section 404 and has the specific duty to establish guidelines for the issuance of Section 404 dredge and fill permits. 33 U.S.C. § 1344(b). In turn, the Corps has authority to issue Section 404 permits, but only pursuant to EPA’s guidelines. 33 U.S.C. § 1344(b) (“[E]ach such disposal site shall be specified for each such permit by the Secretary . . . through the application of guidelines Case 1:06-cv-01268-HHK Document 30 Filed 03/30/2007 Page 5 of 14 6 developed by the Administrator.”). Courts have held that the 404(b)(1) Guidelines create a nondiscretionary duty. See, e.g., Bersani v. EPA, 850 F.2d 36, 40 (2d Cir. 1988) (holding that the Corps must follow the 404(b)(1) Guidelines when issuing permits). When applying well-established canons of statutory interpretation, the only reasonable interpretation of the Act is that Section 404 imposes mandatory duties on both agencies, and that both agencies are liable for a failure to carry out these duties. In its Motion to Dismiss, the United States essentially asks this Court to conclude that (1) although the Corps has a nondiscretionary duty under Section 404, the citizen suit provision does not provide jurisdiction for suits against the Corps, and (2) although the citizen suit provision provides jurisdiction for suits against EPA, EPA does not have any nondiscretionary duties under Section 404. This reading would be inconsistent with Congress’s establishment of nondiscretionary duties in Section 404. It is also inconsistent with the Act as a whole because it would provide an enforcement remedy for all duties in the CWA, except for the nondiscretionary duty to comply with the 404(b)(1) Guidelines. Adopting the United States’ interpretation would also thwart the overall purpose of the CWA—to protect and restore the Nation’s waters. I. THIS COURT HAS SUBJECT MATTER JURISDICTION OVER THE CLEAN WATER ACT CLAIMS AGAINST THE CORPS A. CWA Section 505(a)(2) Provides Jurisdiction for the Tribe’s Claims Against the Corps Whether the citizen suit provision of the CWA provides jurisdiction for claims against the Corps is a question of first impression in the D.C. Circuit. There is a long- standing circuit split over this issue, and the United States’ assertion that Section 505(a)(2) “has consistently been held to . . . exclude suits against the Corps,” Motion to Case 1:06-cv-01268-HHK Document 30 Filed 03/30/2007 Page 6 of 14 7 Dismiss at 14, is incorrect. Compare Nat’l Wildlife Fed’n v. Hanson, 859 F.2d 313, 316 (4th Cir. 1988) (holding that Sections 404 and 505 must be read together because EPA and the Corps “share responsibility for issuance of permits under the CWA and enforcement of their terms”), with Preserve Endangered Areas of Cobb’s History v. U.S. Army Corps of Eng’rs, 87 F.3d 1242 (11th Cir. 1996) (“P.E.A.C.H.”) (holding that Section 505(a)(2) does not provide jurisdiction over the Corps because it does not waive the Corps’ sovereign immunity). See also Save Our Cmty. v. EPA, 741 F. Supp. 605, 610 n.2 (N.D. Tex. 1990) (CWA section 505(a)(2) “provides a cause of action against the Corps or EPA”). Applying well-established canons of statutory construction to examine the Act as a whole and to avoid interpretations that would thwart the purpose of the Act, the Fourth Circuit’s reasoning that Section 505(a)(2) must be read to include jurisdiction for suits against the Corps because the Corps jointly administers Section 404 with EPA is more persuasive than the reasoning of the Eleventh Circuit. See Hanson, 859 F.2d at 316. It is a well established canon that courts should consider specific provisions of an act in their statutory context. Crandon v. United States, 494 U.S. 152, 158 (1990) (“In determining the meaning of the statute, we look not only to the particular statutory language, but to the design of the statute as a whole and to its object and policy.”). The D.C. Circuit has generally taken a “whole act” approach to interpreting the CWA. See, e.g., Nat’l Wildlife Fed’n v. Gorsuch, 693 F.2d 156, 178 (D.C. Cir. 1982) (reading the CWA “as a whole” to interpret Congress’ intent regarding the feasibility of limiting all sources of pollution); Natural Res. Def. Council, Inc. v. Costle, 568 F.2d 1369, 1375 (D.C. Cir. 1977) (interpreting CWA effluent guidelines in light of the Act’s legislative Case 1:06-cv-01268-HHK Document 30 Filed 03/30/2007 Page 7 of 14 8 history in order to retain “the fundamental logic of the statute”). Because the CWA establishes that the Corps must abide by mandatory guidelines when issuing Section 404 permits, it is most reasonable to read the Act’s citizen suit provision in Section 505(a)(2) to include suits alleging the Corps’ failure to “perform any act or duty . . . that is not discretionary.” 33 U.S.C. § 1365(a)(2). It would be inconsistent to read Section 505(a)(2) in a way that enables enforcement of all nondiscretionary duties enumerated in the rest of the Act, but excludes from enforcement the nondiscretionary duties of Section 404. Another statutory canon holds that Section 505(a)(2) must be interpreted in a way that would not thwart the Act’s purpose to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251; see Helvering v. Hamel, 311 U.S. 504, 510 (1941) (“[C]ourts in the interpretation of a statute have some scope for adopting a restricted rather than a literal or usual meaning of its words where acceptance of that meaning would lead to absurd results, or would thwart the obvious purpose of the statute.”). To achieve this purpose, Congress established particular, mandatory guidelines that govern the issuance of Section 404 permits. As articulated by the Fourth Circuit, “Congress cannot have intended to allow citizens to challenge erroneous wetlands determinations when the EPA Administrator makes them but to prohibit such challenges when the Corps makes the determination and the EPA fails to exert its authority over the Corps’ determination.” Hanson, 859 F.2d at 315; see also Envtl. Def. Fund v. Tidwell, 837 F.Supp. 1344 (E.D.N.C. 1992) (following Hanson to hold that a Section 505(a)(2) citizen suit may be brought against the Corps). A holding that the Act’s citizen suit provision in Section 505(a)(2) excludes suits against the Corps Case 1:06-cv-01268-HHK Document 30 Filed 03/30/2007 Page 8 of 14 9 would thwart the purpose of the Act and would improperly “impute to Congress a purpose to paralyze with one hand what it sought to promote with the other.” Clark v. Uebersee Finanz-Korporation, A.G., 332 U.S. 480, 489 (1947). As such, the only commonsensical reading of Section 505(a)(2), given the context of the statute and the objects it promotes, is to include the Corps within the term “Administrator.” 33 U.S.C. § 1365(a)(2). The United States’ reliance on P.E.A.C.H. is misguided. The P.E.A.C.H. court declined to allow jurisdiction over the Corps because the citizen suit provision did not clearly and unambiguously waive the Corps’ sovereign immunity. See P.E.A.C.H., 87 F.3d at 1249. See also Northwest Envtl. Def. Ctr. v. U.S. Army Corps of Eng’rs, 118 F.Supp. 2d. 1115 (D. Or. 2000) (citing P.E.A.C.H. in its determination that jurisdiction under section 505(a)(2) did not extend to the Corps); Cascade Conservation League v. M.A. Segale, Inc., 921 F.Supp. 692, 697 (W.D. Wash. 1996) (citing P.E.A.C.H. and rejecting the Hanson court’s “logical” purposive reasoning because “construction of a waiver of sovereign immunity begins and ends with the express terms of the statute.”). The Eleventh Circuit’s reasoning is faulty and should not be adopted by this Court as a basis for granting the United States’ motion because APA section 702 waives the Corps’ sovereign immunity. The Corps has clearly and unambiguously waived its sovereign immunity through Section 702 of the APA, which provides a blanket waiver of sovereign immunity for all suits against federal agencies that seek injunctive or declaratory relief. 5 U.S.C. § 702 (providing that an action seeking relief other than money damages “shall not be dismissed nor relief therein be denied on the ground that it is against the United States”). Case 1:06-cv-01268-HHK Document 30 Filed 03/30/2007 Page 9 of 14 10 Congress amended Section 702 of the APA in 1976 in order to “broaden the avenues for judicial review of agency action by eliminating the defense of sovereign immunity.”1 Bowen v. Massachusetts, 487 U.S. 879, 891-892 (1988). As this Court has consistently held, the waiver of sovereign immunity with respect to claims for equitable relief against federal agencies “applies to any suit whether under the APA or not.” Chamber of Commerce v. Reich, 74 F.3d 1322, 1328 (D.C. Cir. 1996); see also Trudeau v. Fed. Trade Comm’n, 456 F.3d 178, 186 (D.C. Cir. 2006) (“There is nothing in the language of the second sentence of Section 702 that restricts its waiver [of sovereign immunity] to suits brought under the APA . . . and hence [the waiver] applies regardless of whether the elements of an APA cause of action are satisfied”). Therefore, this Court’s jurisdiction as to the Corps is not precluded by the P.E.A.C.H. court’s reasoning because the APA’s explicit waiver of sovereign immunity extends to cases brought under the CWA. 5 U.S.C. § 702; see also P.E.A.C.H., 87 F.3d at 1249 (holding that CWA section 505(a)(2) did not apply to the Corps because the Corps had not waived its sovereign immunity). Furthermore, the cases on which the P.E.A.C.H. court relies for the proposition that a waiver of immunity must be clear and unambiguous are not suits that sought equitable relief, like the present case, but rather suits that were seeking a judgment of costs from the United States. See P.E.A.C.H., 87 F.3d at 1249 (citing United States v. Idaho ex rel. Dir., Idaho Dept. of Water Res., 508 U.S. 1, 6 (1993) (holding that Idaho water rights legislation requiring all claimants to pay a filing fee did not waive the United States’ sovereign immunity) and Ruckelshaus v. Sierra Club, 463 U.S. 680, 685-86 1 Prior to this enactment, Congress provided waivers of sovereign immunity for “non-monetary actions seeking judicial review of official conduct . . . statute-by-statute.” Wright & Miller, 14A Federal Prac. & Proc. § 3659. Congress amended APA Section 702 in order to “reduce the existing doctrinal uncertainty” regarding these statute-by-statute waivers of sovereign immunity. Id. Case 1:06-cv-01268-HHK Document 30 Filed 03/30/2007 Page 10 of 14 11 (1983) (noting that the United States is immune from claims for attorney’s fees except to the extent that it has waived its sovereign immunity)). Thus, the heart of the reasoning in P.E.A.C.H. and its progeny is unavailing, and the Tribe respectfully asks this Court to hold that Section 505(a)(2) of the CWA extends jurisdiction to citizen suits against the Corps.2 B. The Tribe Asserts No Claims Under CWA Section 505(a)(1) Contrary to the United States’ assertion in its Motion to Dismiss, the Tribe presents no claims against the Corps under Section 505(a)(1), which applies to violations of the Act’s effluent standards or limitations. 33 U.S.C. § 1365(a)(1). Instead, the Tribe alleges under Section 505(a)(2) that the Corps failed to fulfill its nondiscretionary duties under the CWA and its implementing regulations in 33 C.F.R. § 320.4(a) and 40 C.F.R. § 230.10, inter alia. Therefore, the United States’ arguments to dismiss on this basis are inapplicable here. II. THIS COURT HAS JURISDICTION OVER ALL CLAIMS AGAINST EPA Contrary to the United States’ assertions, EPA does have mandatory duties under CWA section 404 and, therefore, is subject to suit under section 505(a)(2).3 The 404(b)(1) Guidelines mandate that “all requirements in § 230.10 must be met” and that “no discharge of a dredged or fill material shall be permitted if there is a practicable alternative . . . which would have a less adverse impact on the aquatic ecosystem.” 40 2 Although the APA provides an alternate basis of jurisdiction for suits against the Corps, this does not solve the problem that a literal reading of the CWA’s citizen suit provision would be inconsistent with the Act as a whole. Furthermore, exclusion of the Corps from jurisdiction under the CWA conflicts with the purpose of the citizen suit provision—to encourage citizens to act as private attorneys general and provide them with reasonable attorney’s fees when successful. 33 U.S.C. § 1365(d); Hanson, 859 F.2d at 316-17 (4th Cir. 1988) (“The legislative history of the fee shifting provisions indicates that they were enacted to encourage litigation to ensure proper administrative implementation of the environmental statutes.”). 3 If this Court holds that Section 505(a)(2) of the CWA does not provide jurisdiction over EPA because EPA does not have nondiscretionary duties under Section 404, jurisdiction would also not exist under the APA and all of the Tribe’s claims against EPA would be precluded. 5 U.S.C. §§ 701(2), 706(2)(A). Case 1:06-cv-01268-HHK Document 30 Filed 03/30/2007 Page 11 of 14 12 C.F.R. § 230.10(a) (emphasis added). The Tribe alleges that EPA failed to fulfill its nondiscretionary duties to administer Section 404 and to ensure that the Corps complied with the 404(b)(1) Guidelines in issuing the KWR permit, 40 C.F.R. § 230. Tribe Compl. ¶¶ 111, 129. See Bersani, 850 F.2d at 40 (holding that EPA and the Corps share responsibility for issuing Section 404 permits). The Clean Water Act establishes that the EPA has oversight authority over permits for the discharge of dredged or fill material. 33 U.S.C. § 1344(b)(1) (providing that the Administrator must develop guidelines for the issuance of permits for the discharge of dredged or fill material); 33 U.S.C. § 1344(h) (providing that the Administrator has authority to approve state programs for the issuance of permits for dredged or fill material); 33 U.S.C. § 1344(i) (providing that the Administrator has the authority to withdraw approval of state programs that are not in compliance with the Section 404(b)(1) Guidelines); 33 U.S.C. § 1319 (providing that the Administrator has enforcement authority over violations of permits issued by a state under an approved permit program for dredged or fill material under 33 U.S.C. § 1344(h)). See also 118 Cong. Rec. 33,699 (1972), reprinted in 1 Legislative History of the Federal Water Pollution Control Act Amendments of 1972, at 177 (1973) (stating that Congress envisioned that the EPA Administrator would “prior to the issuance of any permit [by the Corps] . . . determine that the material to be disposed of will not adversely affect municipal water supplies, shellfish beds, and fishery areas (including spawning and breeding areas)” in the proposed site); 43 U.S. Op. Atty. Gen. 197 (Sept. 5, 1979) (concluding that the Administrator of EPA “share[s] responsibility for issuance of [CWA] permits and enforcement of their terms” with the Secretary of the Army). Case 1:06-cv-01268-HHK Document 30 Filed 03/30/2007 Page 12 of 14 13 Moreover, EPA and the Corps have enacted inter-agency agreements that establish EPA’s authority over permits issued under Section 404. See Memorandum of Agreement Between the Department of the Army and the Environmental Protection Agency Concerning the Determination of the Section 404 Program and the Application of the Exemptions Under Section 404(f) of the Clean Water Act (Jan. 19, 1989), available at http://www.epa.gov/owow/wetlands/guidance/404f.html (assigning EPA the ultimate authority to determine the jurisdictional scope of wetlands); Memorandum Between the Department of the Army and The Environmental Protection Agency: Federal Enforcement for the Section 404 Program of the Clean Water Act, available at http://www.epa.gov/owow/wetlands/regs/enfmoa.html (allocating section 404 enforcement authority to both the Corps and EPA). Finally, the courts have consistently recognized that Congress intended that EPA maintain authority over the Section 404 program. See, e.g., James City County v. EPA, 12 F.3d 1330, 1336 (4th Cir. 1993) (noting that Congress charged EPA with making final Section 404 permitting decisions because of its expertise and environmental commitment); Hanson, 859 F.2d at 316 (asserting that the EPA is “ultimately responsible for the protection of wetlands”); Orange Env’t v. County of Orange, 811 F. Supp. 926, 930 (S.D.N.Y. 1993) (confirming EPA’s “ultimate responsibility for wetlands protection”); see also Sierra Club v. Leavitt, 355 F. Supp. 2d. 544, 552, 556 (confirming that Clean Air Act regulations, similar to the 404(b)(1) Guidelines, create mandatory duties, the violation of which can be challenged through a citizen suit against EPA). Again, taking into account the statutory canons, Section 404 must be read as imposing a mandatory oversight duty on EPA. Because Congress intended that EPA is Case 1:06-cv-01268-HHK Document 30 Filed 03/30/2007 Page 13 of 14 14 responsible for administration over Section 404, it is logical that Congress also intended to provide an enforcement mechanism for EPA’s failure to ensure compliance with the 404(b)(1) Guidelines. Clark, 332 U.S. at 489 (noting that courts should not “impute to Congress a purpose to paralyze with one hand what it sought to promote with the other.”). It would thwart the CWA’s purpose and would be inconsistent in the context of the Act as a whole to conclude that the Corps’ independent authority to issue Section 404 permits, 33 U.S.C. § 1344(a), excuses EPA from liability for failing to ensure that nondiscretionary duties imposed by the 404(b)(1) Guidelines are carried out. Thus, the Tribe respectfully asks this Court to hold that Section 505(a)(2) of the CWA extends jurisdiction to citizen suits against EPA for its failure to fulfill its mandatory duties under Section 404. CONCLUSION For the foregoing reasons, the Court should uphold all of the Tribe’s claims asserted against the Corps under CWA section 505(a)(2) and all claims asserted against EPA for its violation of Section 404. Respectfully Submitted, /s/ Emma Garrison________________ Emma E. Garrison, Staff Attorney Hope M. Babcock, Senior Attorney Institute for Public Representation 600 New Jersey Avenue, NW Washington, D.C. 20001 (202) 662-9535 (202) 662-9634 (Facsimile) Counsel for the Mattaponi Indian Tribe and Chief Carl T. Lone Eagle Custalow Case 1:06-cv-01268-HHK Document 30 Filed 03/30/2007 Page 14 of 14