jurisdictional determination. We cannot conclude, as Stoeco suggests, that the Corps did not review the information provided it prior to the October 13, 1987 hearing. The Hyland Report should have been included in the administrative record and, contrary to Stoeco's argument, was included in the record.
Stoeco also argues that the Corps purposely omitted the New Jersey Tidelands Map and Wetlands Map from the Administrative Record because the State of New Jersey does not regulate the project site under the New Jersey Coastal Wetlands Act of 1970, N.J.S.A. 13:9A-1 et seq. (1988). That Act mandated that the NJDEP make an inventory of ". . . all tidal wetlands within the State. The boundaries of such wetlands shall generally define the areas that are at or below high water and shall be shown on suitable maps, which may be reproductions or aerial photographs." N.J.S.A. 13:9A-1(b) (1988) (emphasis added). Thus, the NJDEP under the State statute regulates only tidal wetlands. Federal jurisdiction under the CWA, however, extends to all wetlands whether or not they are "at or below high water." See, 33 C.F.R. § 328.3(a)(3), (7) (1987); 33 C.F.R. 328.3(b) (1987).
In the instant matter, the Corps does not take the position that the project site presently functions as a "tidal wetland." Nor as a matter of law is the Corps regulatory authority limited to tidally flowed wetlands. United States v. Tilton, 705 F.2d 429 (11th Cir. 1983); Ciampitti, 583 F. Supp. at 494 (". . . the existence of an artificial barrier, in this case a railroad embankment, which may prevent tidal flow to a site is not determinative of the limits of Corps' jurisdiction.") Thus, we do not believe omission of the state maps from the administrative record renders the same incomplete.
Finally we address whether the Corps had a rational basis upon which to assert jurisdiction. Stoeco contends that an examination of the history of the tract reveals that the Corps sanctioned the filling activities by issuing maintenance dredging permits for the bay in 1976 and 1979. This argument is unconvincing inasmuch as Condition II(b) of the 1976 permit and Special Condition (h) of the 1979 permit specifically prohibited discharge of fill into wetland areas. AR 343, 352.
According to the definition of 33 C.F.R. 328.3(b) (1987), to be wetlands under Corps regulations an area must be: (1) durationally inundated or saturated; (2) supportive of vegetation dependent on or adapted to saturated soils; and, (3) contain saturated soils. See, definitions cited earlier in this opinion at p. 1078, supra.10 The administrative record here shows that each of these three parameters have been met. The Corps in this matter conducted soil and photo analysis, collected field data and consulted aerial photographs in reaching its conclusion that the area is wetlands under the implementing regulations.
We cannot substitute our judgment for that of the Corps, which has the technical expertise in this area and has properly reached an administrative determination. Thus, we conclude that the administrative decision made by the Corps was not "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law." Plaintiff's motion to upset that administrative determination shall be denied. Moreover, no interim relief shall be given at this time until an after-the-fact permit has been applied for and a ruling has been made on such by the Corps. The Government's motion is granted to the extent that the Corps' decision is determined to be rational and in accordance with the law. We feel that it is not warranted, however, to assess civil monetary penalties at this time.
An appropriate order shall be entered.
ORDER - November 2, 1988, Filed
This matter having come before the Court on cross-motions for summary judgment to review the Department of the Army Corps of Engineers' decision to assert Federal jurisdiction over certain land owned by plaintiffs under the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. (1988); and
The Court having reviewed the submissions of the parties and having heard oral argument; and
The Court being satisfied that the Army Corps' decision is not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" under 5 U.S.C. § 706(2)(A) (1988); and
For good cause shown;
It is on this 2nd day of November, 1988 ORDERED that the motion of the plaintiffs shall be DENIED in its entirety and the motion of the government shall be granted only insofar as the plaintiffs shall be required to file for an after-the-fact permit under § 404 of the Clean Water Act.
IT IS FURTHER ORDERED that no civil monetary penalties shall be assessed at this time for existing violations under 33 U.S.C. § 1251 et seq. (1988).