ELR Citation: ELR 20390
No(s). 73-1805 (3d Cir. May 23, 1974)

The Third Circuit holds that private dredging and construction of waterfront homesites and a lagoon system upon marshland previously subject to the ebb and flow of the tide do not require a permit from the Army Corps of Engineers and may not be totally enjoined under the Rivers and Harbors Appropriations Act. The Army's claim that the land is within the navigable waters of the United States is inconsistent with the fact that in 1951 the Army recognized harbor lines seaward of the lands in question and granted a permit to the developer. Also, the fact that the land was subject to the tide does not mean that it is presently within the navigable waterways of the U.S. because it has since become fast land and hence not subject to federal permit requirements. The Army's attempt to enjoin the development on the grounds that deposit of dredged material in navigable waters is illegal may only be upheld to the extent that hydraulic dredging operations actually lead to silt discharge, and may not be so broad as to cover operations from which no discharge results. The injunction appealed from is therefore limited to cover only hydraulic dredging and no new construction permit from the Army is required.

Counsel for Appellants-Defendants
Joel A. Mott Jr.
3207 Bayland Drive
Ocean City, NJ 08226

Charles A. Cohen
603 Commerce Building
Broadway and Federal St.
Camden, NJ 08103

Counsel for Appellees-Plaintiffs
Jonathan L. Goldstein, U.S. Attorney
Z. Lance Samay, Asst. U.S. Attorney
Chief, Environmental Protection Unit
Federal Building
970 Broad Street
Newark, NJ 07102