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Harmon Cove Condominium Ass'n v. Marsh

Citation: 17 ELR 20747
No. No. 86-5547, 815 F.2d 949/25 ERC 1949/(3d Cir., 04/09/1987)

The court holds that the Army Corps of Engineers is not subject to mandamus to compel enforcement of the conditions of a dredge-and-fill permit issued under § 404 of the Federal Water Pollution Control Act (FWPCA) and § 10 of the Rivers and Harbors Act (RHA), since the decision to enforce is a matter committed to the Corps' discretion. The court notes that the presumption that the Corps' enforcement decision is unreviewable can only be overcome by a showing that the RHA or the FWPCA provides guidelines for the Corps in exercising its enforcement powers. The terms of the permit do not impose a duty on the Corps to enforce compliance with its conditions. Further, RHA § 10 and FWPCA § 404 do not impose a duty on the Corps to enforce the permit. The court holds that there is no private right of action under the RHA, nor is there a private right of action under the FWPCA which, if successful, would force the developers to comply with the permit and pay damages to the association.

Counsel for Appellant
Terrence Dwyker, Brian N. Lokker
Williams, Caliri, Miller & Otley
1428 Rte. 23, Wayne NJ 07474-0995
(201) 694-0800

Counsel for Appellee
F. Henry Habicht II
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2701

Thomas W. Greelish, U.S. Attorney
Fed'l Bldg., 970 Broad St., Rm. 502, Newark NJ 07102
(201) 645-2155

Before Sloviter and Aldisert, JJ.