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State Water Control Bd. v. Hoffman

Citation: 8 ELR 20358
No. No. 77-1396, 574 F.2d 191/(4th Cir., 04/19/1978) Vacated & remanded

The Fourth Circuit vacates a lower court's dismissal of a suit challenging the Army Corps of Engineers' jurisdiction under §§ 9 and 10 of the Rivers and Harbors Act to require permits for construction activities in Smith Mountain Lake. There is sufficient evidence in the record to support the district court's finding that the lake, which was artificially created as part of a federally licensed hydroelectric project and lies wholly within one state, is a navigable water of the United States under the "historical usage" test of navigability. The lower court erred, however, in concluding that § 154 of the Water Resources and Development Act of 1976 did not exempt the lake from the Corps' Rivers and Harbors Act permit program. The language of § 154 and its legislative history indicate that it was intended to relieve property owners of the burden of obtaining Corps permits for the construction of wharves and piers in precisely this sort of intrastate lake, whether natural or artificially impounded, whose navigability is based solely on historical use.

For a summary of moving papers, see ELR PEND. LIT. 65525.

Counsel for Plaintiff-Appellant
Frederick S. Fisher, Ass't Attorney General; James E. Ryan, Jr., Deputy Attorney General; David E. Evans, Ass't Attorney General
Supreme Court Bldg., Richmond VA 23219
(804) 786-2071

Counsel for Defendant-Appellee
Dirk D. Snel; James W. Moorman, Ass't Attorney General; Edmund B. Clark, John E. Varnum
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 739-2769

Paul R. Thomson, Jr., U.S. Attorney
P.O. Box 1709, Roanoke VA 24008
(703) 982-6250

Field, J. for himself, Widner and Hall, JJ.