ELR Citation: ELR 20030
No(s). 83-3389 (5th Cir. Oct 1, 1984)

The court holds that the Corps of Engineers was not arbitrary or capricious in requiring Federal Water Pollution Control Act (FWPCA) or Rivers and Harbors Act (RHA) individual permits for various actions diking and draining a Louisiana cypress-tupelo gum swamp. The court first holds that the arbitrary and capricious standard applies, rejecting plaintiffs' contention that a higher standard should apply because a new District Engineer changed the Corps position on one of the issues in the case. Plaintiffs' suit challenges three Corps actions under the FWPCA: halting of an after-the-fact permit process for a levee that closed a drainage canal next to the swamp tract; approval of repair work on levees surrounding the tract; and approval of the installation of drainage culverts in one of the levees. The court holds that the new District Engineer reasonably interpreted Corps regulations in halting the after-the-fact permit process instigated by his predecessor. The regulations included a nationwide permit for discharges into non-navigable waters before 1975. Though the Corps has exercised jurisdictions over man-made waterways since 1977, the fact that the Corps did not consider man-made waterways to be navigable when the canal was filed in 1972-1973 was a reasonable basis for declining to assert retroactive jurisdiction. Next, the court holds that the Corps acted reasonably in finding that repair of the levees was covered by a nationwide permit for repair of "currently serviceable" structures. Plaintiffs' focus on the regulation's requirement that the structure have been constructed prior to any requirement that it be permitted by the Corps is misplaced since the court found the levee not unauthorized. Also, the Corps need not make any specific findings of fact to support its decision not to require an individual permit; the nationwide permits are designed to avoid just that sort of requirement. Finally, plaintiffs' argument that installation of the drainage culverts necessarily violated the FWPCA by virtue of washthrough of the dirt plug is unsupported by the record, and the mere fact that the culverts will impair the reach of the waters of the United States does not bring the action under the FWPCA absent some discharge of pollutants.

Plaintiffs also challenge closure of the canal and repair of the levees under the RHA. The court holds that the decision not to require an after-the-fact permit for the canal-closing levee under RHA §10 was reasonable because RHA regulations exempt projects completed in a waterway before the Corps asserted jurisdiction over the waterway. Second, and for the same reason, the levee on which the repair work was done falls under the nationwide permit for repairs to structures "constructed prior to the requirement for authorization." Finally, the court finds that plaintiffs' contention that the Corps acted in bad faith is unfounded.

Counsel for Appellants
Peter D. Derbes
Derbes & Derbes
315 Richards Bldg., New Orleans LA 70112
(504) 522-8706

Frank A. Silvestri
577 S. Carrollton Ave., New Orleans LA 70118
(504) 866-9631

Counsel for Appellees
William F. Baity, Ass't U.S. Attorney
Hale Boggs Fed. Bldg., 500 Camp St., New Orleans LA 70130
(504) 589-2921

Harless Benthul
Office of the General Counsel
First Int'l Bldg., Dallas TX 75270
(214) 767-2600

Dirk D. Snel, Arthur E. Gowran
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 533-4400

Counsel for Appellee-Intervenor
Joseph LeBlanc Jr.
Milling, Benson, Woodward, Hillyard, Pierson & Miller
1100 Whitney Bldg., New Orleans LA 70130
(504) 581-3333

Before REAVLEY, JOHNSON, and JOLLY, Circuit Judges.