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Buttrey v. United States

Citation: 11 ELR 20932
No. No. 80-1617, (E.D. La., 04/01/1981)

The court holds that an applicant for a dredge and fill permit under § 404 of the Federal Water Pollution Control Act is not entitled to an adjudicatory hearing. Section 404 provides that the Corps may issue permits "after notice and opportunity for public hearings." Under similar language in § 402 of the Act, the Environmental Protection Agency conducts adjudicatory hearings on applications for pollution control permits. Nonetheless, the legislative history of § 404 shows that Congress intended to continue the system of dredge and fill permit issuance that existed under the Rivers and Harbors Act of 1899, including informal non-adversarial public hearings. The court also finds that the Corps's informal hearing procedures satisfy the requirements of due process. In ruling on the permit denial, the court limits its review to the administrative record and applies an arbitrary and capricious standard of review under § 706(2)(A) of the Administrative Procedure Act. After rejecting a hearsay-rule argument against the Corps' reliance on reports from other federal agencies, the court finds that the Corps properly concluded that the area in question constituted a wetland. The Corps' jurisdiction over navigable waters includes such wetlands.

Counsel for Plaintiffs
Pamela Pryor, Charles K. Reasonover, Harry S. Anderson
Deutsch, Kerrigan & Stiles
4700 One Shell Sq., New Orleans LA 70139
(504) 581-5141

Counsel for Defendants
John P. Volz, U.S. Attorney
Hale Boggs Fed. Bldg., 500 Camp St., New Orleans LA 70130
(504) 589-2921

William L. Want
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2543