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Hart & Miller Islands Area Envtl. Group v. Corps of Eng'rs

Citation: 9 ELR 20032
No. No. HM77-973, 459 F. Supp. 279/12 ERC 1311/(D. Md., 10/20/1978)

The court grants plaintiff's motion for summary judgment in a suit challenging the issuance by the Corps of Engineers of a permit to construct a diked facility for impounding dredge spoil within the Chesapeake Bay. In light of stipulations between the partners that the Chesapeake Bay is a navigable, interstate body of water, the court applies a two-step analysis in order to determine whether the facility is subject to the requirement of congressional authorization in § 9 of the Rivers and Harbors Act of 1899, whether the facility is a dike within the meaning of § 9, and whether it constitutes an obstruction to navigation. The court holds that the facility is a dike within the common meaning of that term, and that it is an obstruction to navigation, despite the fact that it would not completely block the passage of ships through the bay. Congressional approval of the project is therefore required. The Corps' issuance of the permit exceeded its authority under § 9 and is invalid.

Counsel for Plaintiff
Edward B. Rybczynski, Ralph K. Rothwell
820 Fidelity Bldg., Baltimore MD 21201
(301) 685-5095

Counsel for Defendant Corps of Engineers
Russell T. Baker, Jr., U.S. Attorney; Edward M. Norton, Jr., Ass't U.S. Attorney
8th Floor, U.S. Courthouse, 101 W. Lombard St., Baltimore MD 21201
(301) 539-2940

John E. Varnum
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2735

Counsel for Defendant Steamship Trade Ass'n
A. Adgate Duer
Niles, Barton & Wilmer
929 N. Howard St., Baltimore MD 21201
(301) 539-3240

Counsel for Defendant State of Maryland
Francis B. Burch, Attorney General; Warren K. Rich, Robert B. Harrison, III, Ass't Attorneys General
One S. Calvert St., Baltimore MD 21202
(301) 383-3737