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Nofelco Realty Corp. v. United States

Citation: 11 ELR 21090
No. No. 81 Civ. 0052 (GLG), 521 F. Supp. 458/(S.D.N.Y., 09/11/1981)

The court rules that formal adjudicatory hearings are not required for dredge and fill permit proceedings under § 404 of the Federal Water Pollution Control Act (FWPCA). The court rejects plaintiffs' contention that since adjudicatory hearings are required under § 402 of the FWPCA they are required under § 404. It finds that even though the term "public hearings" is used in both §§ 402 and 404, the legislative history supports the use of different procedures. While § 402 permits have been issued by the Environmental Protection Agency only since 1972, the Corps of Engineers has been administering its dredge and fill permit program, under § 404 and the Rivers and Harbors Act, for decades. Congress implicitly approved of the Corps' informal procedures by failing to specify otherwise in either the 1972 or the 1977 amendments to the FWPCA.

Counsel for Plaintiffs
Robert E. Denham
Denham & Vaneria
130 E. 38th St., New York NY 10016
(212) 679-1680

Counsel for Defendants
John S. Martin Jr., U.S. Attorney; Richard N. Papper
One st. Andrew's Plaza, New York NY 10007
(212) 791-0055