On Appeal from the United States District Court For the Eastern District of Pennsylvania, Civil Action No. 85-5151.
Higginbotham and Stapleton, Circuit Judges, and Rodriguez, District Judge.*fn*
STAPLETON, Circuit Judge:
The Army Corps of Engineers ("the Corps") appeals from the district court's remand order concerning an application for a dredge-and-fill permit by AJA Associates ("AJA"). Because the applicant has already been given the meaningful opportunity to be heard that due process requires, we conclude that the district court erred in remanding to the Corps for "an informal oral hearing." Accordingly, we will instruct the district court to vacate its remand order and consider AJA's remaining assertions of impropriety in the processing of its application.
AJA owns property on a canal in Key Colony Beach, Florida. On September 21, 1983, the prior owner of AJA's lot, Glen Cafferty, filed an application with the Corps for a permit to construct a seawall (or "bulkhead"), to backfill behind the seawall, and to dredge the base of the seawall. These activities require a permit under § 404 of the Clean Water Act, 33 U.S.C. § 1344 (1986), and § 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403 (1986). The Jacksonville District of the Corps published a notice describing the application on November 2, 1984. Consideration of the application, number 84R-4588, had been delayed by the Corps until that time because it was negotiating with the City of Key Colony Beach to secure modification of a city ordinance that required seawall construction in the manner presented in the application.
On November 27, 1984, a Corps Area Engineer submitted a report that considered this permit application along with 15 other similar proposals for the construction of bulkheads. The report concluded with respect to application 84R-4588: "Recommend bulkhead be placed at landward edge of wetland zone and a pile supported pier for boat access. Recommend no dredging waterward of bulkhead line." Record at 51. Thus the report did not support construction of the seawall as proposed.
In response to the public notice, the Environmental Protection Agency, the Fish and Wildlife Service of the Department of the Interior, and the National Marine Fisheries Service of the National Oceanic and Atmospheric Administration submitted comments. Each agency recommended denial of the AJA permit application as well as denial of permits for the 15 other similar projects under consideration. The EPA comment, for example, describes the wetlands at issue in the permit applications as "a valuable public resource." Wetlands provide "fish and wildlife habitat, hydrological buffering, shoreline stabilization, water purification, pollution and erosion traps, and food chain production." According to the EPA, "although the proposed projects would impact only a relatively small area of wetlands, the cumulative effects of many such projects would have a devastating impact on the wetland resources of the Florida Keys." Record at 67.
Albert Ciardi, a principal in the AJA partnership, then received a letter from an official in the Corps Permit Section dated February 5, 1985, and addressed to Glen Boe, the manager who had actually submitted the permit application for the AJA lot. The letter requested a written response from the applicant addressing the three agency reports that had recommended denial of the application; copies of the three reports were sent along with the letter. In addition to addressing the agency reports, the Corps letter directed the applicant to provide a discussion of (1) the public and private need for the project, (2) why the proposed fill must be located in the wetland resource, and (3) alternative plans that have been considered and why the alternatives are not feasible.
Ciardi's response states that the private need "is so that I can construct a home." The public need "is that the project be constructed safely and that a monstrous pier not jut out in the middle of the waterway which can be dangerous to boat traffic." Ciardi wrote that the seawall must be located in the wetland resource "because that is where it is." He stated that he had not considered an alternative site "because I have spent good money for this site; ergo, it would not be feasible to spend money for another site." Record at 86. Ciardi also wrote:
Having this information in your possession, why don't you deny the permit so that we can take the matter before the courts and let a Judge make a decision that will determine once and for all the wisdom of your denial of a permit on a lot which is totally enclosed by two (2) built-up lots with bulkheads on a lagoon which has been in existence for many years without any significant environmental impact whatsoever.
Record at 87. Glen Boe submitted a five-page response to the agency reports, but began with the statement:
The issues surrounding the applications in question, as you well know, have been discussed at great and tedious length for at least a decade. It is difficult to believe that you really want to rehash the hours of discussions, letters, arguments, contentions, inspections, claims, counterclaims, allegations, opinions, ...