ELR Citation: ELR 21345
No(s). 87-3916 (D.N.J. May 17, 1991)

In a developer's challenge to an Army Corps of Engineers' permit action and an Environmental Protection Agency (EPA) veto under §404 of the Federal Water Pollution Control Act (FWPCA), the court holds that no evidence exists of agency bad faith or bias in the decisionmaking concerning the permit. The court holds that the case should be reviewed on the administrative record and that no trial is necessary. The court holds that the agencies correctly asserted jurisdiction over a 13.5-acre tract. However, the court remands the case to the agencies to consider new jurisdictional issues and the agencies'alleged failure to credit the developer with the pre-enhanced value of the property in establishing mitigation requirements. The court also holds that the Corps' decision to grant a permit for a 13.5-acre tract with certain mitigation conditions was unreasonable, because it was based on the Corps' improper linkage of the 13.5-acre tract with an adjoining 44-acre tract. Further, EPA's 2:1 mitigation ratio and its veto under §404(c) were arbitrary and capricious because of the improper linkage of the two tracts.

Counsel for Plaintiff
William J. Prout, Gregory Castano
Tompkins, McGuire & Wachenfeld
4 Gateway Ctr., 100 Mulberry St., Newark NJ 07102
(201) 622-3000

Counsel for Defendants
Paul G. Shapiro, Ass't U.S. Attorney
402 E. State St., Trenton NJ 08608
(609) 989-2190