ELR Citation: ELR 21186
No(s). 92-597-LO (D. Del. Sep 22, 1993)

The court holds that the U.S. Army Corps of Engineers (the Corps) had jurisdiction under §404 of the Federal Water Pollution Control Act (FWPCA) to compel a developer to apply for an after-the-fact permit for the excavation and clearing of wetlands, and the court upholds the Corps' decision to deny the permit. The court finds that evidence supported the Corps' determination that there had been a discharge of fill material requiring a §404 permit. Fundamental to the exercise of the Corps' jurisdiction is the existence of a discharge, and photographs and site visit reports demonstrated that a significant amount of discharges of fill material had occurred. The court holds that the Corps' exercise of jurisdiction over the disputed activities was proper under §706 of the Administrative Procedure Act because the Corps considered all of the relevant data and articulated an explanation establishing a rational connection between the facts found and the choice made. The Corps relied on a field officer's observations and report, and photographs detailing numerous activities that had resulted in discharges triggering FWPCA jurisdiction. Also, the developer failed to demonstrate that the Corps' initial jurisdictional determination was arbitrary and capricious. Next, the court holds that any error the Corps may have committed by purportedly relying on a regulatory guidance letter in reaching its jurisdictional decision was not prejudicial and should not disturb the government's exercise of jurisdiction. The court upholds the Corps' denial of the developer's after-the-fact permit application because the Corps' decision was based on a consideration of the relevant factors; there was no clear error of judgment, and the denial was a reasoned decision. Finally, the court declines to determine the propriety of the Corps' remedial plan, which includes complete restoration of excavated ponds. To resolve the issue would constitute impermissible preenforcement of judicial review.

Counsel for Plaintiff
F. Michael Parkowski, Jeremy W. Homer
Parkowski, Noble & Guerke
116 W. Water St., P.O. Box 598, Dover DE 19903
(302) 678-3262

Counsel for Defendants
Richard G. Andrews, Ass't U.S. Attorney
U.S. Attorney's Office
Chemical Bank Bldg.
1201 Market St., Ste. 1100, P.O. Box 2046, Wilmington DE 19801
(302) 573-6277

Robert E. Lefevre
Environmental and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000