ELR Citation: ELR 20040
No(s). 03-2604 (1st Cir. Feb 16, 2005)

The First Circuit upheld the U.S. Army Corps of Engineers' (the Corps') issuance of a navigability permit under §10 of the Rivers and Harbors Act (RHA) for the construction and maintenance of a data tower on the outer continental shelf (OCS) in Nantucket Sound. The Corps had jurisdiction to issue an RHA §10 permit for the data tower. As evidenced by the legislative history of the 1978 Outer Continental Shelf Lands Act Amendments, the Corps' permitting authority on the OCS is not limited to structures related to the extraction of mineral resources. Nor did the Corps violate the Administrative Procedure Act by failing to properly consider the applicant's lack of a property interest in the OCS land. The applicable regulations do not require the Corps in a §10 case to resolve disputes over the ownership of public or private property, the Corps reasonably found that the tower's impact on federal property rights would be "negligible," and the tower involves no real infringement on federal interests in the OCS lands. And the Corps fully complied with its obligations under National Environmental Policy Act and Council of Environmental Quality regulations to engage with the public in preparing the environmental assessment and finding of no significant impact.