ELR Citation: ELR 20290
No(s). 87-3916 (D.N.J. Nov 6, 1989)

The court holds that the Army Corps of Engineers improperly refused to process a developer's permit for a 13.5-acre parcel unless the developer also applied for an after-the-fact permit for a 44-acre parcel. After the developer prepared applications for both permits, the Corps announced its intention to approve the permits, but the Environmental Protection Agency (EPA) vetoed the permits. The court first declines to rule on summary judgment motions that the properties were wetlands subject to Corps and EPA jurisdiction and that EPA's veto of the Corps permit was reasonable. The court next holds that the Corps' four-year delay between determining that one of the parcels was a wetland and taking enforcement action does not deprive the developer of constitutional due process. The court next holds that it has jurisdiction to hear the developer's takings claim, since it requests prospective, nonmonetary relief. Next, the court holds that the Corps improperly refused to process the developer's permit for the 13.5-acre parcel unless the developer also applied for an after-the-fact permit for the 44-acre parcel. Corps regulations at 33 C.F.R. §325.1(d)(2) require applications to include all activities reasonably related to the same project. Although these two parcels are contiguous, they were purchased separately and developed separately. The court limits the Corps' existing permit and EPA's veto to the 13.5-acre parcel, ordering the Corps to take further action on the 44-acre parcel. The court next declines to decide whether to apply equitable estoppel against the government. The court had already ordered the government to act on the 44-acre parcel, and since the government's possible misconduct only involved the 44-acre parcel, estoppel is not applicable to the 13.5-acre parcel. Next, the court finds issues of fact remain that preclude summary judgment on whether EPA's changing the classification of this wetland was arbitrary and capricious. The court next concludes that EPA was required to consider the New Jersey Coastal Management Plan in acting on the permit, and finds that issues of fact remain as to whether it did so. The court asks for additional briefs on whether EPA can veto after-the-fact permits. The court finds remaining issues of fact on whether the property was tidal or nontidal.

Counsel for Plaintiff
William J. Prout Jr., Michael S. Miller
Tompkins, McGuire & Wachenfeld
4 Gateway Ctr., Newark NJ 07102-4070
(201) 622-3000

David J. Bardin
Arent, Fox, Kintner, Plotkin & Kahn
1050 Connecticut Ave. NW, Washington DC 20036-5339
(202) 857-6000

Counsel for Defendants
James C. Woods, Ass't U.S. Attorney
970 Broad St., Rm. 502, Newark NJ 07102
(201) 621-2700