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Corps Confirms Policy Against "Unnecessary" Development in Wetlands

June 1976

Citation: 6 ELR 10117

Issue: 6

In a decision1 of national importance, the Army Corps of Engineers has denied two applications from a large land developer for dredging and filling more than 2,000 acres of mangrove swamps at Marco Island, Florida. The Corps has thus dramatically signalled its willingness to apply strictly its own recently developed policy of protecting the nation's wetlands from unnecessary destruction. Deltona Corporation, the developer, has been constructing the Marco Island residential community for more than ten years, and many lots in Big Key and Barfield Bay, the two proposed filling sites, have already been sold to members of the public. Despite Deltona's protests that to deny the permits at this stage of the project's construction would be to change the rules in the middle of the game, the Chief of Engineers, Lt. Gen. William C. Gribble, found that the proposed filling would constitute an unnecessary and unacceptable adverse impact on this aquatic resource. Gribble therefore determined that the applications must be denied in view of overriding national factors in the public interest, including the Corps' own wetlandspolicy and the statutory purposes of the Federal Water Pollution Control Act Amendments of 1972 (FWPCA). A third application to complete the filling of approximately 100 acres in Collier Bay was granted, however, because nearly all the mangrove swamps at this third site had already been altered by previous illegal filling.

Gen. Gribble's decision is all the more noteworthy when contrasted with the Corps's initial reluctance2 to assume its expanded regulatory responsibilities under §404 of the FWPCA,3 which essentially extended the agency's jurisdiction over dredge and fill activities from only those areas traditionally subject to the navigational servitude under §10 of the Rivers and Harbors Act of 18994 to all "waters of the United States." Only after being ordered by a federal court5 did the Corps issue Interim Final regulations6 implementing this expanded authority and stating the agency's wetlands policy, and even then only after protracted negotiations with the Environmental Protection Agency as to the proper shape of the program. The Corps' firm adherence to this enlightened policy less than a year later was thus a welcome surprise to the environmental groups that had been fighting to halt the Marco Island development for a number of years, and to other Corps watchers who were glad to see the agency return to the trail it began to blaze with its denial of fill permits solely on environmental grounds in the landmark case of Zabel v. Tabb.7

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