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1902 Atl., Ltd. v. Hudson

Citation: 14 ELR 20023
No. No. 82-533-N, 574 F. Supp. 1381/19 ERC 1926/(E.D. Va., 09/28/1983)

The court rules that the Corps of Engineers' denial of a Federal Water Pollution Control Act § 404 permit to fill a borrow pit was arbitrary and capricious and amounted to a taking of property without compensation. The pit in question is connected by a ditch to a tidal creek and contains subtidal lands, intertidal lands, and wetlands. The court first rules that although the pit falls within the Corps' § 404 jurisdiction and is tidal, the pit is outside the Corps' Rivers and Harbors Act jurisdiction because it is artificial, and not navigable in fact. The court then rules that the § 404 permit denial was arbitrary and capricious. The Corps wrongfully based itsdenial almost exclusively on the fact that the proposed use of the pit was not water dependent. Water dependency is not a prerequisite for a permit, but merely a factor to be considered in determining whether the proposed action is in the public interest. The Corps also wrongfully included in the record selected negative comments on previous proposals to fill the pit. Further, the Corps' findings on navigation, fish and wildlife, water quality, aesthetics, land use, and other areas are flawed, either by failure to consider all relevant factors or by irrational conclusions.

Finally, the court finds that denial of a permit would render the pit commercially worthless and declares that such a denial would be a taking. The court rules that the government has no navigational servitude over the pit since it is not navigable in fact. Also, the court rules that it has jurisdiction to issue a declaratory judgment on the takings issue even though the Tucker Act might deprive it of jurisdiction to award damages.

Counsel for Plaintiff
Edward R. Baird Jr.
Wilcox & Baird
350 Monticello Arcade, Norfolk VA 23514
(804) 627-4217

Counsel for Defendant
Larry W. Shelton, Ass't U.S. Attorney
600 Granby St., Norfolk VA 23510
(804) 441-6331

Diane L. Donley
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-1066