ELR Citation: ELR 21199
No(s). 88-643 LO (D. Del. Dec 11, 1990)

The court holds that the United States Army Corps of Engineers' (Corps') assertion of jurisdiction over a landowner's wetlands cannot be challenged until completion of the landowner's application for a permit under §404 of the Federal Water Pollution Control Act (FWPCA). The court holds that the determination of jurisdiction and the issuance of a cease and desist order is not a final agency action. The court must apply the finality rule, even if the cost of obtaining an after-the-fact permit might be substantial. The FWPCA impliedly precludes preenforcement review. The court next holds that the landowner's claim that the Corps impermissibly delayed processing his permit application is premature before completion of the process. The jurisdiction decision is not ripe for review until the Corps determines whether to allow development. Moreover, the court declines to review the Corps' timeliness in reviewing the landowner's permit application until the application is complete and the landowner has exhausted his administrative remedies. Because the landowner has not shown that he would suffer irreparable harm by dismissal, suffer a violation of statutory or constitutional rights, or that exhaustion would be futile, the court declines to interfere with the Corps' permitting process. Finally, the court holds that the landowner's claim that the Corps' cease and desist order is a temporary taking is not ripe. Whether the landowner's lost use value constitutes a temporary taking is not ripe until the Corps' determines whether it will allow development. It is impossible to determine the extent of the landowner's lost use until the Corps' final decision.

Counsel for Plaintiff
Harold W. T. Purnell II
Tunnell & Rayser
Pine & Race Sts., P.O. Box 151, Georgetown DE 19947
(302) 856-7313

Counsel for Defendant
Kent A. Jordan
Office of the U.S. Attorney
5110 Federal Bldg., 844 King St., Wilmington DE 19801
(302) 573-6227