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Hart & Miller Islands Area Envtl. Group v. Corps of Eng'rs

Citation: 10 ELR 20452
No. Nos. 78-1911 et al., 621 F.2d 1281/14 ERC 1578/(4th Cir., 05/28/1980) Rev'd

Reversing the district court, 9 ELR 20032, the Fourth Circuit Court of Appeals determines that the construction of a diked disposal area for dredge spoils does not require congressional authorization pursuant to § 9 of the Rivers and Harbors Act but may instead be authorized by the Corps of Engineers pursuant to § 10 of the Act. The legislative history and relevant case law indicate that the intent of § 9 was to require congressional assent to any construction that spans navigable waters but to permit the Corps to approve projects that merely affect navigable capacity. The Corps has long interpreted the Act similarly, and its view are entitled to deference in this context. Thus, although on its face § 9 provides that all dikes built in navigable waters require congressional approval, the court reads the provision to apply only to dikes that span the breadth of navigable waterways.The diked facility at issue in this case will not span the bay in which it will be built and therefore is subject only to the requirements of § 10. The § 10 permit issued by the Corps is valid.

Counsel for Appellant State of Maryland
Francis B. Burch, Attorney General; Warren K. Rich, Robert B. Harrison III, Ass't Attorneys General
One S. Calvert St., Baltimore MD 21202
(301) 383-3737

Counsel for Federal Defendant
Joshua I. Schwartz
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2754

Counsel for Appellees
Edward B. Rybczynski, Ralph K. Rothwell Jr.
820 Fidelity Bldg., Baltimore MD 21201
(301) 685-5095

Counsel for Intervenor-Appellant Steamship Trade Ass'n
William C. Stifler III, Paul B. Lang
Niles, Barton & Wilmer
929 N. Howard St., Baltimore MD 21201
(301) 539-3240

Joined by Hall and Warriner,* JJ.