Shoreline Associates v. Marsh

No. 83-1164 (4th Cir. January 10, 1984)

The court affirms a district court ruling, 13 ELR 20421, upholding a Corps of Engineers decision under § 404 of the Federal Water Pollution Control Act and § 10 of the Rivers and Harbors Act denying a permit to fill and develop a tidal wetland in Ocean City, Maryland. The court rules simply that the district court decision was correct.

Counsel for Appellant
Warren K. Rich, Stephen P. Kling
Niles, Barton & Wilmer
P.O. Box 509, Annapolis MD 21401
(301) 269-1610

Counsel for Appellees
Wendy B. Jacobs, Anne S. Almy, Michael W. Neville, Martin Green; F. Henry Habicht III, Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4010

Before Winter, Phillips, and Ervin, JJ.

[14 ELR 20269]

Per curiam:

Shoreline Associates ("Shoreline") sought judicial review of a determination by the Secretary of the Army, acting through the District Engineer of the Army Corps of Engineers for the Baltimore District ("Corps"), not to award Shoreline a permit to fill and develop a marshland in Ocean City, Maryland. The tidal wetland areas in question are the subject of federal regulation, including the issuance of permits by the Secretary of the Army and the Corps. See, § 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403, and § 404 of the Clean Water Act, 33 U.S.C. § 1344. The district court by memorandum opinion and order granted the Corps' motion for summary judgment. Shoreline Associates v. John O. Marsh, Jr., et al., D. Md., Civil Action No. M-81-3097 [13 ELR 20421] (January 6, 1983).

The issues raised by Shoreline on appeal are identical to those it raised below. They include both procedural and substantive objections to the Corps' determination.

As to procedural matters, Shoreline contends that the Corps' procedures for considering applications such as its are inadequate in that they do not provide for formal submission of evidence, cross-examination, or rebuttal. In addition, Shoreline maintains that denial to it of an opportunity to comment on memoranda prepared by Corps' staff is a violation of its hearing rights. Finally, Shoreline contends that the Corps' decision was inadequate in that it failed properly to set forth facts on which it was based and its rationale.

Substantively, Shoreline maintains the Corps' decision failed to indicate proper consideration of the evidence and that it relied on generalized non-site specific evidence. Shoreline contends that the Corps' determination that the wetlands in question were "important" for purposes of 33 C.F.R. § 302.4(b) was clearly erroneous. Finally Shoreline argues that the Corps improperly considered alternatives to the proposed development.

After reviewing the briefs submitted by the parties to the appeal and hearing argument, we conclude that the district court correctly disposed of each objection to the Corps' determination raised by Shoreline. We affirm on the basis of the district court's memorandum and order.

AFFIRMED.