287 



building of structures nnd the excavating and filling 

 in navigable waters. It is structured as a flat prohibi- 

 tion unless — the unless being the issuance of approval 

 by the Secretary after recommendation of the Chief 

 of Engineers.^ 3 The Act itself does not put any restric- 

 tions on denial of a permit or the reasons why the 

 Secretary may refuse to grant a permit to one seeking 

 to build structures on or dredge and fill his own proper- 

 ty. Although the Act has always been read as temper- 

 ing the outright prohibition by the rule of reason a- 

 gainst arbitrary action, the Act does flatly forbid the 

 obstructiorL The administrator may grant pernnission 

 on conditions and conversely deny permission when 

 the situation does not allov/ for those conditions. 



But the statute does not prescribe either generally 

 or specifically what those conditions may be. The ques- 



harbor lines, or where no harbor lines have been 

 established, except on plans recommended by Ihe Chief 

 of Engineers and authorized by the Secretary of the 

 Army; and it shall not be lawful to excavate or fill, 

 or in any manner to alter or modify the course, lo- 

 cation, condition, or capacity of, any port, roadstead, 

 haven, harbor, canal, lake, harbor of refuge, or in- 

 closiu*e within the limits of any breakwater, or 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 the 

 Army prior to beginning tlie same." 

 33 U.S.C.A. § 403. 

 isThis Court recently held that under this same section together 

 with the Outer Continental Shelf Lands Act, 43 U.S.CJi. 

 § 1333(f), a permit must be obtained before a project can be 

 begun on the Outer Continental Shelf. United SIbIcs v. Ray, 

 supra, note 5, which followed the remand and trial on the 

 merits in Atlantis Development Corp. v. United States, 5 Cir., 

 1967, 379 F.2d 818. 



