Loveladies Harbor, Inc. v. Baldwin

No. 84-5273 (3d Cir. November 5, 1984)

The court holds that the Corps of Engineers did not violate the consistency provision of the Coastal Zone Management Act (CMZA) in denying a Federal Water Pollution Control Act § 404 fill permit, and that the Corps has jurisdiction over wetlands. Section 307(c)(1) of the CZMA does not prohibit Corps denial of the permit, despite the state's approval of the project.

[Note: The Third Circuit has not formally approved this opinion for publication.]

Counsel for Appellant
Kevin J. Coakley
Connell, Foley & Geiser
Gateway 1, Suite 1600, Newark, NJ 07102
(201) 643-2060

Counsel for Appellee
Vincent E. Gentile, U.S. Attorney
970 Broad St., Newark, NJ 07102
(201) 645-6429

Garth, J., before Sloviter and Lord,^* JJ.

[15 ELR 20088]

GARTH, J.:

Memorandum Opinion of the Court

Loveladies Harbor, Inc., takes this appeal from an order granting summary judgment to the Army Corps of Engineers ("ACE"), affirming the Corps' denial of a permit to fill a tidal wetlands area as part of Loveladies proposed housing development. Because we find that the Army Corps of Engineers' action was not arbitrary, capricious, or contrary to law, we affirm.

Loveladies Harbor depends on two principal attacks on this appeal. First it argues that by virtue of the "consistency provision" of the Coastal Zone Management Act, 16 U.S.C. § 1456(c)(1), the ACE may not deny a permit to a project authorized by state authorities, as Loveladies' project was when the New Jersey Department of Environmental Protection granted a permit pursuant to a prior settlement offer. In Cape May Greene, Inc. v. Warren, 698 F.2d 179 [13 ELR 20319] (3d Cir. 1983), we struck down a restriction against new hookups to a federally funded sewage treatment plant, where such a restriction would have effectively barred development previously authorized by the State. Cape May Greene does not control this case, however, for unlike the grant program in that case, the ACE is not here acting at the "outer limits of statutory authority." 698 F.2d at 190. Rather, the ACE acts pursuant to express statutory grant of permit authority under the Clean Water Act, 33 U.S.C. § 1344, and a statutory prohibition against any discharge into waters of the United States without such a permit. 33 U.S.C. § 1311. Further, regulations specifically authorize denial of a permit (where no federal grant is involved) despite prior state approval if the project fails to meet stricter federal standards. 15 C.F.R. § 930.39. We find that the ACE did not violate the "consistency provision" by denying this permit.

Loveladies' second main line of attack challenges the ACE's jurisdiction over wetland areas. Both cases, e.g. Avoyelles Sportsman's League v. Marsh, 715 F.2d 877 [13 ELR 20942] (5th Cir. 1983), and legislative history support such jurisdiction, however. See id. at 915 (remarks of Senator Muskie). We find that ACE jurisdiction over wetlands exists.

For the above reasons, the judgment of the district court is affirmed.

* Honorable Joseph S. Lord, III, United States District Court for the Eastern District of Pennsylvania, sitting by designation.