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Smithwick v. Alexander

Citation: 12 ELR 20790
No. No. 78-83-CIV-7, 17 ERC 2126/(E.D.N.C., 03/23/1981)

The court dismisses a challenge to the Corps of Engineers' denial of a dredge and fill permit application under § 10 of the Rivers and Harbors Act and § 404 of the Federal Water Pollution Control Act. Applying the arbitrary and capricious standard of review, the court finds that the Corps acted within the scope of its authority and did not abuse its discretion in applying the factors provided in its regulation in denying the requested application to dredge and fill 18 acres on a 20-acre peninsula. The court also finds that the Corps satisfied the requirements of due process by making adequate findings and affording plaintiff an opportunity to respond. In addition, the Corps' actions were not arbitrary, capricious,or an abuse of discretion because it is clear that the land constitutes a wetland within the meaning of the regulation. The court holds that since plaintiff can still use the property for its current purpose, there is no unconstitutional taking.

Counsel for Plaintiff
Thomas J. Morgan
Hunoval, Fullwood & Morgan
P.O. Box 1388, Wilmington NC 28402
(919) 762-5271

Counsel for Defendants
Bruce H. Johnson, Ass't U.S. Attorney
P.O. Box 26897, Raleigh NC 27611
(919) 755-4530