Section 404 Permit Program Survives Legal Challenges, Faces Congressional and Administrative Review
Federal jurisdiction over and protection of the nation's wetlands and navigable waters, long a source of spirited litigation, continues to give rise to litigation involving knotty legal issues and heated legislative debate. The large number of decisions to have appeared in recent issues of the Reporter show, not surprisingly, continued controversy over jurisdictional issues. Avoyelles Sportsmen's League v. Alexander1 adds an important dimension to the long line of cases addressing the permitting authority of the Army Corps of Engineers under the Federal Water Pollution Control Act (FWPCA). A more fundamental challenge tothe Corps' authority was raised in Deltona Corp. v. United States,2 in which plaintiffs claimed that the Corps' denial of dredge and fill permits constituted a taking of their property in violation of the Fifth Amendment. While the United States Court of Claims found that a permit denial might constitute a taking in specific cases, the mere diminution in the value of the litigants' property did not constitute a taking. Perhaps equally significant implications flow from the claims of frustrated permit applicants that they have a right to more formal administrative procedures. Two district courts3 have held that applicants for dredge and fill permits are not entitled to formal adjudicatory proceedings. A more authoritative resolution of this difficult issue must await a pending decision of the Fifth Circuit Court of Appeals.