ELR Citation: ELR 20726
No(s). 440-87L (Cl. Ct. Oct 31, 1989)

The court holds that the federal government is not entitled to summary judgment against property owners that brought an inverse condemnation action when the Corps of Engineers (the Corps) denied them a dredge and fill permit under §404 of the Federal Water Pollution Control Act (FWPCA). Plaintiffs, who owned several lots in federal and state wetlands, were issued a cease and desist order for illegal dredging and filling activity on federal wetlands under the Rivers and Harbors Act and the FWPCA. After one plaintiff was found in contempt of court for disregarding a permanent injunction and assessed penalties, he applied for a §404 permit. The Corps denied the permit on the grounds that it was inconsistent with federal regulations and New Jersey's Coastal Zone Management Program, and noted that the plaintiff would need state permits and a State Water Quality Certificate. The court first rejects plaintiffs' claims with respect to those lots not subject to the §404 permit denial. The court then holds that the claims are ripe because the Corps denied the permit on grounds independent of plaintiffs' failure to obtain state permits or the state's refusal to give a consistency determination. The court holds that even if the state's actions were the sole reason for the permit denial, those actions could still be imputed to the federal government when it denied the permit application. The court holds that even if the serious health effects associated with plaintiff's proposal bring it into the nuisance exception to the Fifth Amendment takings clause, the court would still be required to examine the economic impact of the regulation and its interference with reasonable investment-backed expectations. The court holds that, while permitting difficulties may be a factor in reasonable investment-backed expectations, other factors must be weighed in the constitutional balance.

[A related case is published at 18 ELR 20419.]

Counsel for Plaintiffs
Alfred A. Porro Jr.
Porro & Porro
10 Stuyvesant Ave., Lyndhurst NJ 07071
(201) 438-1923

Counsel for Defendant
Dorothy R. Burakreis
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 272-6253