Smithwick v. Alexander

No. 81-1464 (4th Cir. December 15, 1981)

The court affirms the district court's holding that the Army Corps of Engineers properly denied appellant's application for a permit under § 404 of the Federal Water Pollution Control Act to fill a wetland. The Corps' determination that appellant's land is a wetland and that the proposed development was not in the public interest or consistent with federal wetlands policy was based on a full record including evidence on both sides of the issue and was supported by the recommendations of three other federal agencies which reviewed the application. It was therefore not arbitrary, capricious, or an abuse of discretion.

Counsel for Appellant
Thomas J. Morgan
Hunoval, Fullwood & Morgan
206 Princess St., Wilmington NC 28401
(919) 762-5271

Counsel for Appellees
Thomas Lee Riesenberg
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4519

Abraham Penn Jones, Ass't U.S. Attorney
P.O. Box 26897, Raleigh NC 27611
(919) 755-4530

Before Haynsworth, Russell, and Hall, JJ.

[12 ELR 20432]

Per curiam:

Under the Federal Water Pollution Control Act Amendments of 1972,¹ the Secretary of the Army is responsible for issuing permits for the discharge of dredge and fill material which would pollute the nation's navigable waters. 33 U.S.C. § 1344(a). Pursuant to this authority, the Corps of Engineers refused to issue Lloyd Smithwick a permit to excavate his property because it had been designated a "wetland" as defined by the Corps' regulations.² The district court upheld the Corps' decision, and Smithwick appealed. The district court was correct in holding that the Corps acted properly. Therefore, we affirm.

This case involves approximately 20 acres east of Belleville, North Carolina. The land is a marshy peninsula, bounded by creeks. Smithwick, the owner, wanted to dig canals and use the excavated material to build up the level of the marshland in order to develop it for housing. However, before he could proceed, he needed a federal permit for dredging and filling.

In July 1975, Smithwick applied for a permit.³ His application was reviewed by the Environmental Protection Agency (EPA), the National Marine Fisheries Service and the Fish and Wildlife Service as well as by the Corps of Engineers. They all recommended that the permit be denied because the area was a viable [12 ELR 20433] wetland, supporting a variety of marsh grasses,⁴ and because the proposed development was not in the public interest or consistent with federal wetlands policy. Based on these recommendations, the permit was denied.

The district court affirmed the Corps' decision on the grounds that the Corps had acted within the scope of its authority, that the procedural requirements had been met, and that the decision was not arbitrary, capricious, or an abuse of discretion. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 [1 ELR 20110] (1971). We agree.

Appellant's most vehement argument is that the Corps acted improperly. He contends that his land is not a "wetland," and therefore is outside the Corps' jurisdiction. However, Congress gave the Secretary of the Army the authority to promulgate regulations defining "wetlands" and to classify particular areas; we cannot conduct a de novo review of those determinations. Overton Park, 401 U.S. at 415. There is a full record in this case to support the Secretary's exercise of jurisdiction over Smithwick's land. Therefore, our only task is to determine if the decision to deny his permit was arbitrary, capricious, or an abuse of discretion.

We cannot find fault with the Corps' decision in this case. Although the local community favored the development with its attendant benefits of employment and additional housing, the federal agencies which were involved unanimously recommended denial of the permit. The Corps outlined the evidence supporting both sides of the issue, considered all of the relevant factors, and concluded that the development was not consistent with national wetlands policy, and on balance, was not in the public interest. We defer to that determination.

We have considered the other issues raised by the appellant and find them to be without merit. Accordingly, the decision of the district court is affirmed.

AFFIRMED.

1. Now called the Clean Water Act, 33 U.S.C. 1251 et seq.

2. The Corps' 1975 regulations, in effect at the time of the decision to deny Mr. Smithwick's application, defined "wetlands" as "those areas that are periodically inundated and that are normally characterized by the prevalence of vegetation that requires saturated soil conditions for growth and reproduction. . . ." 33 C.F.R. 209.120(f)(4), 40 Fed. Reg. 31324-25 July 25, 1975.

3. This was his second attempt. He had first applied for state and federal permits in 1973. The North Carolina Department of Natural and Economic Resources denied the permit for environmental reasons and the Corps of Engineers followed suit. This time around Smithwick had received a permit from the North Carolina Marine Fisheries Commission despite opposition from the local Division of Marine Fisheries. Nevertheless, the North Carolina State Department of Natural and Economic Resources persisted in its opposition to the permit.

4. Although Mr. Smithwick had disked the area and planted grass, the EPA noted that the area was revegetating with the native marsh grass.