Route 26 Land Development Ass'n v. US Government, Civ. A. No. 88-643 LON.

• Decision Date: 11 December 1990
• Docket Number: Civ. A. No. 88-643 LON.
• Citation: 753 F. Supp. 532
• Court: U.S. District Court — District of Delaware
• Parties: ROUTE 26 LAND DEVELOPMENT ASSOCIATION, Plaintiff, v. UNITED STATES GOVERNMENT, Defendant.

753 F. Supp. 532

ROUTE 26 LAND DEVELOPMENT ASSOCIATION, Plaintiff, v. UNITED STATES GOVERNMENT, Defendant.

Civ. A. No. 88-643 LON.

United States District Court, D. Delaware.

December 11, 1990.

Harold W. T. Purnell, II, Tunnell and Raysor, Georgetown, Del. (Stanley J. Walcek, Bethany Beach, Del., of counsel), for plaintiff.

Kent A. Jordan, U.S. Attys. Office, Wilmington, Del. (Rebecca A. Lloyd, U.S. Dept. of Justice, Washington, D.C., Barry F. Gale, U.S. Army Corps of Engineers, Philadelphia, Pa., Richard F. Frank, U.S. Army Corps of Engineers, Washington, D.C., of counsel), for defendant.

OPINION

LONGOBARDI, Chief Judge.

The Plaintiff in this case seeks declaratory relief with regard to the jurisdiction of the United States Army Corps of Engineers (the "Corps") over the Plaintiff's property and the permitting process of the Corps pursuant to the federal Clean Water Act (the "CWA"), 33 U.S.C. § 1251, et seq. The Plaintiff intends to use this property for residential development. This is the Court's Opinion on the Government's motion to dismiss.¹

I. BACKGROUND

The Plaintiff is the owner of a 14-1/2 acre tract of land located in the Town of Bethany Beach, Delaware (the "Site"). Thirteen of these acres, according to Plaintiff, "have been designated as `wetlands'" by the United States of America through the Corps. Plaintiff alleges that of these 13 acres, approximately 4-1/2 acres have also been designated as "wetlands" by the State of Delaware.

In May of 1984, the Plaintiff's representative, Mr. Stanley Walcek ("Walcek"), contacted the Corps to determine whether the Site was subject to the Corps' jurisdiction. Docket Item ("D.I.") 14 at 2.² Subsequently, Walcek received a letter from the Corps which stated that a "majority of the proposed project site is wetland habitat and is, therefore, subject to the jurisdiction of" the Corps. Id., Affidavit ("Aff.") I.

Certain filling and clearing activities took place on the Site. The Acting District Engineer determined these activities were in violation of section 301 of the CWA. D.I. 14, Exhibit ("Ex.") 6. A Cease and Desist Order was issued by the Acting District Engineer for the Corps to Walcek on May 27, 1986, directing that the filling activities cease and the removal of all fill from the Corps' jurisdictional areas within 30 days. D.I. 14 at 3; see also id., Ex. 6. On October 30, 1986, the Corps sent a second letter to Walcek requiring him to remove the fill from those portions of the Site covered by the Corps' jurisdiction within 25 days. D.I. 14 at 3; see also id., Ex. 11. On November 7, 1986, Walcek contacted the Corps to request a six month extension to remove the fill and he questioned whether the Corps had jurisdiction over the Site. Id. Walcek, at that time, also requested that the Corps allow a permit application to be processed without having to remove the fill. D.I. 14 at 3; see also id., Ex. 12. The Corps wrote Walcek on January 28, 1987, to grant an additional 30 day extension from January 28, 1987,³ and to inform Walcek that it would accept an after-the-fact permit application only after the fill was removed. Id. Additionally, the Corps informed Walcek that the Corps did, in fact, have jurisdiction over the Site. Id. On May 27, 1987, a site inspection by the Corps led it to determine that some of the fill had been removed.⁴ D.I. 14 at 3. On February 22, 1988, Walcek sent the Corps an incomplete application for a permit to develop the site. Id.; see also id., Ex. 15 (incomplete permit application). A follow-up inspection of the Site revealed that while the fill in the most environmentally sensitive areas was gone, some of the fill remained in other areas. Id. at 3-4; see also id., Ex. 16.

On November 17, 1988, the Plaintiff filed this declaratory relief action. The Corps informed Walcek on December 14, 1988, that it would accept an after-the-fact permit application because the fill had been removed from the most environmentally sensitive areas. D.I. 14 at 4; see also id., Ex. 17. It also informed Walcek that additional information was necessary to complete the application. Id.⁵ Also, Walcek was advised that he would have to submit proof of compliance with the State of Delaware's Coastal Zone Management Program and show that he received a Water Quality Certificate before the Corps could complete its permitting process. To date, the application remains incomplete and it is still pending before the Corps.

The Plaintiff alleges in its complaint that the "Federal government has advised the Petitioner that they would never allow fill to be placed on their designated area for the purpose of private housing to be built thereon." D.I. 1, ¶ 7. Richard Hassel is the Chief of the Applications Section of the Regulatory Branch of the Corps and is responsible for the permit application process and for recommending whether or not to grant a permit application. He has submitted an affidavit disputing Walcek's contention. The affidavit states that the Corps "has not informed ... Walcek that `the Walcek fill permit would never be granted,' as alleged in the complaint. Such a statement would be contrary to the Corps' regulations and the policies of this District." D.I. 14, Aff. II. Also, the Plaintiff alleges that the "only viable economic use of the Site would be for use as private housing—now allowed by the Town of Bethany Beach." Id., ¶ 8. The Plaintiff further alleges that the Site "borders a privately owned drainage ditch called the `Bethany Beach Loop Canal', and is about 3/4 of a mile from the Assawoman Canal—a Federally owned waterway and it is not anticipated that the use of the Site for housing would not sic cause any pollution of the Federal waterway." Id., ¶ 9.

The Plaintiff's complaint apparently seeks declaratory relief on three main issues: jurisdiction, abuse of discretion and whether or not the action of the Corps has worked a taking of the Plaintiff's property.⁶ The jurisdiction issue has three parts: (1) whether the federal government and/or the State of Delaware properly has jurisdiction over the Site, D.I. 1, Question II; (2) whether there is federal jurisdiction over the Site in the alleged absence of pollution by the Plaintiff's proposed activities at the Site, id., Question III; and (3) whether the Corps has jurisdiction over the Site in light of the alleged non-adjacency of the Site to a federal waterway, id., Question I. With regard to the Corps' action during the permit process, the Plaintiff apparently seeks declarations that the Corps has abused its discretion by (1) refusing to process the permit application in its current form, id., Question IV; and (2) by refusing to give the Plaintiff an official determination on the permit application when a representative of the Corps has told Walcek that the permit would never be granted, id., Question V. Finally, the Plaintiff apparently seeks a declaration as to whether the Corps' activities thus far constitute a taking of the property by the federal government, id., Question VI.

Because the Plaintiff's after-the-fact permit application is presently incomplete and pending before the Corps, the Government argues that the Plaintiff's complaint should be dismissed on the grounds of lack of ripeness and failure to exhaust available administrative remedies. The Government argues that it would be "highly improper" for this Court to entertain a challenge to what it characterizes as an "on-going agency action that will ultimately lead to a decision on the merits of the Plaintiff's permit application." D.I. 14 at 9.

The Plaintiff, however, argues that the issue for this Court is whether the Plaintiff must submit to the permit process. Since the Corps has asserted jurisdiction over the site and there is no mechanism for the Plaintiff to appeal that determination within the agency, the Plaintiff argues the requirements of ripeness and exhaustion have been satisfied.⁷

The parties presented information outside of the pleadings for this Court to consider and the Court gave the parties notice of its intention to treat the motion as one for summary judgment. Because the Court gave the parties an opportunity to supplement the record, it will now make its determination on the basis of summary judgment standards. Fed.R.Civ.P. 12(c). Those familiar standards require that summary judgment be granted when there is no genuine issue as to any material fact and the moving party shows that it is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). Where, as here, affidavits have been submitted by the moving party, the "adverse party must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Those facts which are "material" will be determined from the substantive law to which they are to be applied. U.S. v. New Castle County, 727 F.Supp. 854, 860 (D.Del.1989). Furthermore, the Court must take all reasonable inferences from the evidence most favorably to the non-moving party, here the Plaintiff. Id. at 861.

II. DISCUSSION

Before beginning an analysis of the specific allegations in this case, it is helpful to review the regulatory scheme of the CWA and the considerations involved in judicial review of an agency action.

A. The Clean Water Act

The CWA establishes a comprehensive program to restore and maintain the chemical, physical and biological integrity of the waters of the United States. Section 301(a) of the CWA, 33 U.S.C. § 1311(a), prohibits "the discharge of any pollutant by any person" except in compliance with various provisions of the CWA. The CWA defines the phrase "discharge of a pollutant" to include "any addition of any pollutant to navigable waters from any point source." 33 U.S.C. § 1362(12). "Pollutant" is defined broadly to include, inter alia, "dredged spoil", "biological materials", "heat", "rock", and "sand." 33 U.S.C. § 1362(6). "Navigable waters" is defined broadly, for purposes of CWA, to "mean the waters of the United States,...