ELR Citation: ELR 20630
No(s). 97-5064 (Fed. Cir. Jan 23, 1998)

The court holds that a challenge to the U.S. Army Corps of Engineers' withdrawal of a company's Federal Water Pollution Control Act (FWPCA) §404 permit application from active status for failure to include the statutorily required state water quality certificate (WQC) is not ripe. The court first holds that the Corps' dismissal of the permit application as incomplete was not a final decision or a merits-based decision. The FWPCA specifically makes submission by the applicant of certification by the state in which the discharge will originate a prerequisite for issuance by the Corps of a §404 permit. The Corps did not deny the permit. Nor did the Corps issue a merits-based determination regarding the proposed development's effect on water quality standards, because the company failed to provide the Corps with the information required by law. The court also holds that the New Jersey Department of Environmental Protection's (NJDEP's) cancellation of the company's WQC application does not constitute a final decision and cannot support a Fifth Amendment taking claim. The NJDEP canceled the company's application solely because the company refused to submit an alternatives analysis. The company still has full opportunity to seek a WQC upon submission of an alternatives analysis.

The court further holds that the company's futility, delay, and hardship arguments lack merit. The futility exception simply serves to protect property owners from being required to submit multiple applications when the manner in which the first application was rejected makes it clear that no project will be approved. In the instant case, the company's first application was never rejected because it was never completed. Similarly, the delay of three years was nearly all attributable to the company itself. And any hardship experienced due to lack of a final decision is entirely the fault of the company, because it could have completed a valid WQC application.

[A related decision is digested at ELR BRIEFS & PLEADS. 66560.]

Counsel for Plaintiff
Kevin J. Coakley
Connell, Foley & Geiser
85 Livingston Ave., Roseland NJ 07068
(973) 535-0500

Counsel for Defendant
Thomas L. Halkowski
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Mayer^* and Rich, JJ.