ELR Citation: ELR 21207
No(s). 243-83L (Cl. Ct. Jul 23, 1990)

The court rules that the Army Corps of Engineers' denial of a dredge and fill permit under §404 of the Federal Water Pollution Control Act (FWPCA) is an unconstitutional taking and warrants just compensation under the Fifth Amendment to the U.S. Constitution. The Corps denied a request from private developers to fill wetlands purchased before enactment of the Corps' §404 dredge and fill permit program. The court holds that, but for the wetlands restrictions, the plaintiffs had a legitimate interest in developing their property. The plaintiffs' proposed activities would have been physically possible and financially feasible. However, the court concludes that in the absence of a fill permit, no market exists among knowledgeable investors, and the property is without an economically viable use. Further, the only potential buyer is a governmental unit, and the only remaining value is nominal. Thus, based on the difference between the value of the property before the taking and its value after permit denial, the court holds that the drastic impact on plaintiff's property amounts to a taking compensable at fair market value plus interest.

[A prior decision in this case is published at 19 ELR 20092.]

Counsel for Plaintiffs
Kevin J. Coakley, Stephen D. Kinnard
Connell, Foley & Geiser
85 Livingston Ave., Roseland NJ 07068
(201) 535-0500

Counsel for Defendant
Gary S. Guzy, Fred R. Disheroon
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000