ELR Citation: ELR 21188
No(s). 91-2635 (4th Cir. Jun 23, 1992)

The court holds that the U.S. Army Corps of Engineers has jurisdiction under the Rivers and Harbors Act of 1899 over streams that are subject to the tide's ebb and flow, and the Corps' order to remove barriers to stream access is not a compensable taking. The court first holds that determining whether waters are subject to the tidal ebb and flow is a valid test for the Corps' jurisdiction over navigable waters. The maintenance of bodies of water implicates interstate commerce power and not admiralty jurisdiction, and defining "navigable waters of the United States" to include waters subject to the tidal ebb and flow is within the limits of the interstate commerce power. The court next holds that the barriers are not grandfathered under the Corps' regulations, because they interfere with navigation and are thus subject to the Corps' permitting requirements. The court holds that the Corps' failure to conduct an administrative investigation into its jurisdiction is immaterial, because failure to comply with required procedures is an issue only when jurisdictional questions arise, and here jurisdiction was stipulated for ebb and flow waters. Moreover, the Rivers and Harbors Act does not require any prior administrativeaction. The court also holds that case law does not require that the Corps' action be deemed a compensable taking, because the Corps never led the landowner to expect a right to exclude others, and the case law suggests that these particular streams are navigable waters subject to public use. Finally, the court holds that the landowner must bring any future takings action under the Tucker Act in the Court of Claims.

Counsel for Appellee
Vicki Lane Plaut
Environmental and Natural Resources Division
U.S. Department, Washington DC 20530
(202) 514-2000

Counsel for Appellant
Dove Walker Green Jr.
Green & Sasser
207 Beaty St., Conway SC 29526
(803) 248-5707

Before Phillips and Ramsey, JJ.