Howard W. Heck & Associates, Inc. v. United States

No. 97-5064 (134 F.3d 1468, 46 ERC 1381) (Fed. Cir. January 23, 1998)

The court holds that a challenge to the U.S. Army Corps of Engineers' withdrawal of a company's Federal Water Pollution Control Act (FWPCA) § 404 permit application from active status for failure to include the statutorily required state water quality certificate (WQC) is not ripe. The court first holds that the Corps' dismissal of the permit application as incomplete was not a final decision or a merits-based decision. The FWPCA specifically makes submission by the applicant of certification by the state in which the discharge will originate a prerequisite for issuance by the Corps of a § 404 permit. The Corps did not deny the permit. Nor did the Corps issue a merits-based determination regarding the proposed development's effect on water quality standards, because the company failed to provide the Corps with the information required by law. The court also holds that the New Jersey Department of Environmental Protection's (NJDEP's) cancellation of the company's WQC application does not constitute a final decision and cannot support a Fifth Amendment taking claim. The NJDEP canceled the company's application solely because the company refused to submit an alternatives analysis. The company still has full opportunity to seek a WQC upon submission of an alternatives analysis.

The court further holds that the company's futility, delay, and hardship arguments lack merit. The futility exception simply serves to protect property owners from being required to submit multiple applications when the manner in which the first application was rejected makes it clear that no project will be approved. In the instant case, the company's first application was never rejected because it was never completed. Similarly, the delay of three years was nearly all attributable to the company itself. And any hardship experienced due to lack of a final decision is entirely the fault of the company, because it could have completed a valid WQC application.

[A related decision is digested at ELR BRIEFS & PLEADS. 66560.]

Counsel for Plaintiff
Kevin J. Coakley
Connell, Foley & Geiser
85 Livingston Ave., Roseland NJ 07068
(973) 535-0500

Counsel for Defendant
Thomas L. Halkowski
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Mayer^* and Rich, JJ.

[28 ELR 20630]

Michel, J.:

Howard W. Heck, and Associates, Inc. ("Heck") appeals the judgment of the Court of Federal Claims, 37 Fed. Cl. 245 (1997), dismissing its complaint and holding that the court lacked jurisdiction over Heck's Fifth Amendment taking claim¹ because the claim was not ripe for adjudication. Because the Army Corps of Engineers ("Corps") made no decision on the merits of Heck's application for a wetlands dredge-and-fill permit but removed the application from active consideration due to Heck's unexcused failure to submit the statutorily-required state water quality certificate ("WQC") to support its federal permit application, we affirm.

Background

In order to expand Heck's existing residential development in Farmingdale, New Jersey, Heck applied to the Corps for a Clean Water Act ("CWA") section 404 permit² on April 5, 1991, to discharge, dredge, and fill 13 acres of wetlands within Heck's 24 acre parcel of property. A WQC from the State of New Jersey, or a waiver by the Corps of such, was a statutory prerequisite for the Corps to issue a section 404 permit. See 33 U.S.C. § 1341 (1994); 33 C.F.R. § 325.2(b)(1)(ii) (1996).

Heck had submitted a WQC application to the New Jersey Department of Environmental Protection ("NJDEP") on January 3, 1989. On February 16, 1989, the NJDEP responded by letter to Heck requesting, among other things, submission of a complete discussion of alternatives (an "alternatives analysis") for the proposed project.³ Heck responded that

the property could not physically be developed without removal of vegetation, grading and fill for proper drainage purposes. Accordingly, there is no other alternative to the approved residential project, other than to allow the land to remain idle and vacant.

37 Fed. Cl. at 247. In December 1989, the NJDEP again notified Heck that its alternatives analysis was still incomplete and specified that

[a]lternatives are to include both on and off-site considerations. Onsite alternatives would include minimizing water quality impact through the minimization of discharge and fill, and/or total avoidance of wetland impact. The consideration of off-site alternatives must also be demonstrated. The Division does not consider owner- [Illegible Text]

* Chief Judge Haldane Robert Mayer assumed the position of Chief Judge on December 25, 1997.

1. "[N]or shall private property be taken for public use, without just compensation." U.S. Const. amend. V, cl. 4.

2. Section 404(b)(1) provides that permits shall be granted for discharge into navigable waters (including wetlands) "based upon criteria comparable" to those criteria used for granting permits to dispose of material into territorial seas, the contiguous zone, and the ocean, 33 U.S.C. § 1344(b)(1).

3. When evaluating a WQC application, the NJDEP incorporates the logic of the CWA alternatives analysis in section 404(b)(1), which is also a requirement when applying to the Corps for a section 404 permit.