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Village of Bald Head Island v. U.S. Army Corps of Engineers

Citation: 43 ELR 20086
No. 11-2366, -2368, (4th Cir., 04/15/2013)

The Fourth Circuit upheld the dismissal of a town's complaint seeking to require the U.S. Army Corps of Engineers to honor commitments the Corps made to it and other North Carolina towns when developing plans to widen, deepen, and realign portions of the Cape Fear River navigation channel. The town alleged that the Corps failed to honor commitments to protect the adjacent beaches against the adverse effects of the project and to restore sand to the beaches. But the Corps' implementation of the project, including the ongoing periodic maintenance dredging and resulting nourishment of nearby beaches, does not constitute "agency action" within the meaning of the APA. While the Corps' alleged failure to adequately protect and renourish the impacted beaches was a failure to take "action" in its broadest sense, it was not a determination—i.e., a "rule, order, license, sanction, relief, or the equivalent"—that qualifies as an "action" as used in the APA.