## Facts

- Howard W. Heck and Associates, Inc. owned a 24-acre parcel in Farmingdale, New Jersey containing wetlands and sought to expand an existing residential development by filling roughly 13 acres of wetlands.
- In January 1989, Heck applied to the New Jersey Department of Environmental Protection (NJDEP) for a Clean Water Act (CWA) § 401 water quality certification (WQC).
- NJDEP requested a complete alternatives analysis; NJDEP later reiterated the request and specified additional required information.
- Heck did not submit an alternatives analysis that NJDEP deemed complete, and NJDEP cancelled the WQC application as incomplete.
- In April 1991, Heck applied to the U.S. Army Corps of Engineers for a CWA § 404 dredge-and-fill permit.
- Because a valid WQC (or waiver) was a statutory prerequisite to a § 404 permit, the Corps did not evaluate the application on the merits and instead removed it from active consideration without prejudice due to the missing WQC.
- Heck sued the United States in the Court of Federal Claims alleging a Fifth Amendment regulatory taking based on the Corps’ actions and the permitting regime.

## Issues

1. Whether a Fifth Amendment regulatory takings claim is ripe when the Corps has not made a final merits decision on a § 404 permit application because the applicant failed to obtain the required state WQC.
2. Whether the Corps’ removal of a permit application from active consideration without prejudice constitutes a final agency decision sufficient to support takings jurisdiction in the Court of Federal Claims.

## Decision

- The Federal Circuit affirmed dismissal for lack of jurisdiction.
- The court held the takings claim was not ripe because the Corps made no decision on the merits of the § 404 permit application.
- The Corps’ action was not a substantive denial; it reflected an incomplete application lacking a statutory prerequisite and was taken without prejudice to refiling with the required WQC.

## Legal Principles

- A regulatory takings claim generally requires a final decision applying the challenged regulatory regime to the specific property before it is ripe for adjudication.
- Where a statutory prerequisite to federal permitting (such as state § 401 WQC) is not satisfied, and the federal agency therefore does not reach the merits, there is no final decision for takings ripeness purposes.
- A procedural closure or suspension of a permit application “without prejudice” due to incompleteness does not constitute a final merits determination and does not establish ripeness for a federal takings claim.

## Conclusion

Because the developer failed to secure the state water quality certification required for Corps consideration of a § 404 permit, the Corps never issued a final merits decision; as a result, the alleged regulatory taking was unripe and the Court of Federal Claims lacked jurisdiction.


Howard W. Heck & Assocs., Inc. v. United States, 134 F.3d 1468 (Fed. Cir. 1998)