ELR Citation: ELR 20696
No(s). 01-6141 (2d Cir. May 16, 2002)

The court affirms a district court decision holding that an individual constructed two floats on his dock without securing a permit from the U.S. Army Corps of Engineers (Corps) in violation of the Rivers and Harbors Appropriations Act (RHAA) and requiring the individual to remove the floats. In 1988, the individual applied to the Corps and received a permit to build a pier on his property, which is located at the end of a canal that can be sailed to the Atlantic Ocean when tidal conditions permit. Storms caused significant damage to the structure, and in the early 1990s the individual applied to the state environmental agency and received a permit to build two additional floats attached to his original pier. The court first holds, however, that the canal is a navigable waterway and the new construction was not authorized by the original 1988 Corps permit. The construction of the floats, therefore, was unlawful. The fact that the canal may be impassable at low tide is immaterial because the Corps' jurisdiction under RHAA §10 extends to the average high water shoreline. The court next holds that the individual failed to raise before the district court his claim that his permit application to the state agency was a joint state/Corps permit application; thus, it was not properly before the court. Even were the court to consider this issue, however, the argument lacks merit. The U.S. Congress gave the Corps exclusive jurisdiction to enforce the RHAA, and the mere existence of a joint form does not demonstrate that the submission of an application to the state agency is an application to the Corps.

Counsel for Plaintiff
Kevan Cleary, Ass't U.S. Attorney
U.S. Attorney's Office
U.S. CtHse.
225 Cadman Plaza E., Brooklyn NY 11201
(718) 254-7000)

Counsel for Defendant
Theodore Angell
Law Offices of Theodore Angell
124 Ridge St., New York NY 10002
(212) 358-9395

Parker, J. Before Kearse and Sack, JJ.