Deltona Corp. v. United States

• Citation: 657 F.2d 1184
• Decision Date: 19 August 1981
• Docket Number: No. 370-76.,370-76.
• Parties: The DELTONA CORPORATION v. The UNITED STATES.
• Court: Court of Federal Claims

657 F.2d 1184

The DELTONA CORPORATION v. The UNITED STATES.

No. 370-76.

United States Court of Claims.

August 19, 1981.

William L. Earl, Miami, Fla., atty. of record, for plaintiff.

Fred R. Disheroon, Washington, D. C., with whom was Asst. Atty. Gen. Carol E. Dinkins, Washington, D. C., for defendant. Nancy J. Marvel and Diane L. Donley, Washington, D. C., of counsel.

Before FRIEDMAN, Chief Judge, SKELTON, Senior Judge, and KUNZIG, Judge.

OPINION

KUNZIG, Judge:

In this case, plaintiff contends that it has suffered an uncompensated taking as the consequence of federal regulation affecting its development of a planned subdivision along the Gulf coast of Florida.¹ The statutes in question — § 10 of the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. § 403, and § 404 of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1344 — and implementing regulations thereunder, prohibit, inter alia, dredging and filling in navigable waters without the authorization of the Department of the Army. The latter, stressing environmental factors, has thus far steadfastly refused to grant plaintiff the permits it needs to finish its project. We hold that while plaintiff may indeed have sustained an economic loss, the loss is not such as to constitute a Fifth Amendment taking under the circumstances herein.

I. BACKGROUND

A. Applicable Statutes and Regulations:

A Pattern of Stiffening Requirements.

1. Section 10 of the Rivers and Harbors Appropriation Act of 1899, 30 Stat. 1121, 1151, 33 U.S.C. § 403 (1976) (Rivers and Harbors Act), provides in part:

That the creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is hereby prohibited....

The section goes on to outlaw various structures in any navigable water of the United States except those initiated by plans recommended by the Chief of Engineers and authorized by the Secretary of the Army. Section 10 then states that

it shall not be lawful to excavate or fill, or in any manner to alter or modify the ... capacity of ... the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of War now the Army prior to beginning the same.

See United States v. Republic Steel Corp., 362 U.S. 482, 484-485, 80 S.Ct. 884, 886, 4 L.Ed.2d 903 (1960).²

The Secretary of the Army has delegated to the Corps of Engineers the authority to issue or deny Section 10 permits. 33 C.F.R. § 322.5 (1980). The Corps, in turn, has adopted the following definition of "navigable waters of the United States" in order to mark out the extent of its regulatory jurisdiction under the Rivers and Harbors Act:

The term "navigable waters of the United States" means those waters of the United States that are subject to the ebb and flow of the tide shoreward to the mean high water mark ... and/or are presently used, or have been used in the past, or may be susceptible to use to transport interstate or foreign commerce.

33 C.F.R. § 322.2(a) (1980). See generally 33 C.F.R. § 329.4 (1980).³ The Corps notes that the "policies and criteria" reflected in its definition "are in close conformity with the tests used by the Federal Courts." 33 C.F.R. § 329.3 (1980).

The Supreme Court has described Section 10 as a type of "general proscription" or "ban," the intent being "to benefit the public at large by empowering the federal government to exercise its authority over interstate commerce with respect to obstructions" in the navigable waters of the United States. California v. Sierra Club, 451 U.S. 287, ___, 101 S.Ct. 1775, 1779, 68 L.Ed.2d 101 (1981).

2. Section 404 of the Federal Water Pollution Control Act Amendments of 1972, 86 Stat. 816, 884, 33 U.S.C. § 1344 (1976) (FWPCA), generally prohibits the "discharge of dredged or fill material into ... navigable waters" absent a permit from the Army Corps of Engineers. See also FWPCA § 301, 86 Stat. 844, 33 U.S.C. § 1311 (1976).⁴ The term "navigable waters" is defined by FWPCA as "the waters of the United States, including the territorial seas." 33 U.S.C. § 1362(7) (1976). It is now well settled that Congress, by adopting this 1972 definition, "asserted federal jurisdiction over the nation's waters to the maximum extent permissible under the Commerce Clause of the Constitution," Natural Resources Defense Council, Inc. v. Callaway, 392 F.Supp. 685, 686 (D.D.C.1975); accord, e.g., Conservation Council v. Costanzo, 398 F.Supp. 653, 674 (E.D.N.C.), affirmed, 528 F.2d 250 (1975), and intended a departure from the traditional tests used to delimit Corps jurisdiction under the Rivers and Harbors Act, viz, tidal waters extending to the mean high water mark and/or waters susceptible to use to transport interstate or foreign commerce. See, e. g., Wyoming v. Hoffman, 437 F.Supp. 114 (D.Wyo.1977); United States v. Holland, 373 F.Supp. 665 (M.D.Fla.1974). In other words, the intent was to cover, as much as possible, all waters of the United States instead of just some.

Notably, the Corps — which has also been delegated the task of administering this program, see 33 C.F.R. § 323.5 (1980) — defines "waters of the United States" to include "adjacent wetlands," 33 C.F.R. § 323.2 (1980), and the courts have been in agreement.⁵See, e. g., Avoyelles Sportsmen's League v. Alexander, 473 F.Supp. 525, 531, 533 (W.D.La.1979); Conservation Council v. Costanzo, 398 F.Supp. 653, 674 (E.D.N.C.), affirmed, 528 F.2d 250 (1975); United States v. Holland, 373 F.Supp. 665, 673-674 (M.D.Fla.1974).

The FWPCA establishes a comprehensive program of water pollution research and control in order to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters" and, among other things, declares as a national goal the elimination of the discharge of pollutants into navigable waters by the year 1985. 33 U.S.C. § 1251(a)(1) (1976); see, e.g., Train v. New York, 420 U.S. 35, 37, 95 S.Ct. 839, 841, 43 L.Ed.2d 1 (1975); United States v. Earth Sciences, Inc., 599 F.2d 368, 372-373 (10th Cir. 1979). Further, "a basic policy of the FWPCA is the protection of our nation's wetlands and the important functions they serve." Avoyelles Sportsmen's League v. Alexander, 473 F.Supp. 525, 533 (W.D.La.1979).

3. The implementing regulations adopted by the Corps of Engineers pursuant to its statutory authority have grown increasingly complex and rigorous since the late 1960's.⁶ This, for us, is the key legal event in the case at bar.

Until 1968, the Corps administered the Rivers and Harbors Act solely in the interest of navigation and the navigable capacity of the nation's waters. However, on December 18, 1968, in response to a growing national concern for environmental values and related federal legislation, the Corps revised its regulations to implement a new type of review termed "public interest review." Besides navigation, the Corps would consider the following additional factors in reviewing permit applications: fish and wildlife, conservation, pollution, aesthetics, ecology, and the general public interest.⁷

On April 4, 1974, the Corps published further revised regulations so as to:

a) incorporate new permit programs under Section 404 of the FWPCA;

b) incorporate the requirements of new federal legislation⁸ by adding to the factors to be weighed in the public interest review, including: economics; historic values; flood damage prevention; land-use classification; recreation; water supply and water quality;

c) adopt further criteria to be considered in the evaluation of each permit application, including the desirability of using appropriate alternatives; the extent and permanence of the beneficial and/or detrimental effects of the proposed activity; and the cumulative effect of the activity when considered in relation to other activities in the same general area d) institute a full-fledged wetlands policy to protect wetlands subject to the Corps' jurisdiction from unnecessary destruction.

The inauguration of the wetlands policy should especially be noted, as it plays a leading role in the forthcoming scenario.

The last general revision of Corps regulations occurred on July 19, 1977. The purpose was merely to simplify and reorganize the existing body of rules to make them more understandable. The finished product appears at 33 C.F.R. §§ 320.1-329.16 (1980).

B. Facts.

In 1964, plaintiff, Deltona, purchased for $7,500,000 a 10,000 acre parcel on the Florida Gulf coast with the intention of developing a water-oriented residential community, Marco Island. The property, then completely undeveloped, lay astride the mean high water mark and contained large areas of dense mangrove vegetation, including wetlands. Deltona's master plan called for more than 12,000 single family tracts, numerous multifamily sites, school and park areas, shopping districts, marinas, beaches and regular utilities. Structurally, the project revolved about the "finger-fill" or "landfinger" concept and would necessitate considerable dredging and filling as well as the permanent destruction of much of the natural mangrove vegetation.

Deltona divided Marco Island into five construction or permit areas to be built consecutively. These five areas, in order of scheduled completion, were Marco River, Roberts Bay, Collier Bay, Barfield Bay and Big Key. Each separate stage would take three to four years to complete. While partitioned for these limited purposes, in operation, the Marco Island community would be a thoroughly integrated, unified whole.

Because Deltona's proposed dredge and fill activities were to take place in "navigable waters of the United States" as that term is used in the Rivers and Harbors Act, it was required to obtain the proper permit from the Army Corps of Engineers before any of the work could legally get underway in 1964. Also, because its proposed dredge and fill activities were to take place in ...