ELR Citation: ELR 20634
No(s). 88-0054 (D.N.J. Nov 2, 1988)

The court holds that the Corps' assertion of jurisdiction under §404 of the Federal Water Pollution Control Act over 17 acres of wetlands in Ocean City, New Jersey, was not arbitrary or capricious. The court holds that the record on which the Corps based its jurisdictional determination was sufficiently complete at the time of deliberation. The administrative record subject to judicial review includes documents generated between the time the Corps issued a cease and desist order and until the Corps' communication of its final jurisdictional determination to plaintiff. The omission of state wetland maps from the record does not render it incomplete, since the state maps reflect only tidal wetlands, while federal jurisdiction extends to nontidal wetlands as well. The court also holds that the Corps had a rational basis on which to assert jurisdiction. The Corps did not sanction filling activities at the site in earlier maintenance dredging permits. Moreover, the Corps conducted soil and photo analysis, collected field data, and consulted aerial photographs in reaching its conclusion that the area constitutes wetlands under the implementing regulations. The court orders that no further work on plaintiff's construction project may be done until plaintiff applies for an after-the-fact permit and it is acted on by the Corps.

Counsel for Plaintiffs
Alfred A. Porro Jr.
Porro & Porro
10 Stuyvesant Ave., Lyndhurst NJ 07102
(201) 438-1923

Counsel for Defendant
Samuel A. Alioto Jr., U.S. Attorney; James C. Woods, Ass't U.S. Attorney
Federal Bldg., 970 Broad St., Rm. 502, Newark, NJ 07102
(201) 621-2700