ELR Citation: ELR 20657
No(s). 86-1377 (3d Cir. May 5, 1987)

The court holds that due process does not require the Army Corps of Engineers to hold an informal hearing for a Federal Water Pollution Control Act (FWPCA) §404 dredge and fill permit applicant seeking to construct a seawall or bulkhead in the Florida Keys, because the permit applicant did not request a hearing during the public comment period. The court first rules that a remand to an administrative agency is immediately appealable if it resolves an important legal issue and would otherwise practically preclude appellate review. Because denial of appellate review would foreclose consideration of whether due process requires hearings for FWPCA §404 permit applications, the court holds that the instant case warrants judicial review. Next, the court finds that permit applicant failed to request a hearing during the permitting process and that applicable regulations only require a hearing when public notice specifies or the applicant requests that a hearing should be held. The court holds that an administrative agency such as the Corps may, in keeping with due process, condition a hearing upon a permit applicant's request. A hearing need not be required where, after the Corps provided numerous meaningful opportunities to be heard, the applicant elected to seek its permit by detailed written procedures.

Counsel for Appellee
Albert A. Ciardi Jr., Keith N. Leonard
Ciardi, Fishbone & DiDonato
1900 Spruce St., Philadelphia PA 19103
(215) 546-4370

Counsel for Appellants
Jacques B. Gelin, David C. Shilton
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2762

Before Higginbotham and Rodriquez, JJ.