**No.\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

**UNITED STATES OF AMERICA**

**BEFORE THE DEPARTMENT OF COMMERCE**

**G. Walter Swain,**

**Appellant,**

**vs.**

**Delaware Department of Natural**

**Resources and Environmental Control,**

**Respondent.**

**INITIAL BRIEF ON APPEAL OF G. WALTER SWAIN**

**UNDER THE COASTAL ZONE MANAGEMENT ACT**

> John W. Paradee, Esquire (DE Bar #2767)
>
> Kevin M. Baird, Esquire (DE Bar #4219)
>
> PRICKETT, JONES & ELLIOTT, P.A.
>
> 11 North State Street
>
> Dover, Delaware 19901
>
> \(302\) 674-3841
>
> *Counsel for the Applicant/Appellant*

DATED: March 3, 2008

**[TABLE OF CONTENTS]{.underline}**

##### [PAGE]{.underline}

TABLE OF AUTHORITIES ii

STATEMENT OF THE CASE 1

STATEMENT OF FACTS 2

ARGUMENT:

> I. The Secretary Should Override DNREC's Consistency
>
> Objection as a Threshold Matter Because the Objection
>
> Did Not Comply with CZMA Regulations 6
>
> 1\. DNREC's Unreasonable Delay and Indefinite "Hold" on
>
> the Project's Certification Violated Section 307(c)(3)(A) of
>
> the CZMA 6
>
> 2\. DNREC's Unreasonable Delay and Indefinite "Hold" on
>
> the Project's Certification Violated 15 C.F.R. § 930.60
>
> (Subpart D). 8
>
> 3\. DNREC's Violation of §307 and 15 C.F.R. §930 (Subpart
>
> D\) Requires that, as a Threshold Matter, the Secretary
>
> Override DNREC's Consistency Objection. 10
>
> II\. The Application is Consistent With the Objectives of the
>
> CZMA 10
>
> 1\. The Swain's Marina Project Furthers the National
>
> Interest in a Significant and Substantial Manner. 11
>
> 2\. The National Interest Furthered by the Swain's Marina
>
> Project Outweighs Any Putative Adverse Coastal Effects 12
>
> 3\. There is No Reasonable Alternative 14

CONCLUSION 15

**[TABLE OF AUTHORITIES]{.underline}**

**[STATUTES:]{.underline} [PAGE:]{.underline}**

15 C.F.R. §930 1,6

15 C.F.R. §930.60(b) 8,9,10

15 C.F.R. §930.60(c) 8

15 C.F.R. §930.60 (Subpart D) 6,8,10

15 C.F.R. §930.64(d) 4,7

15 C.F.R. §930.121 1,2,10,14

15 C.F.R. §930.129(b) 1,6,10,15

16 U.S.C. §1456(c)(3)(A) 2,6,10

§302(a) 11

§303 11

§303(1) 12

§303(2)(E) and (F) 12

§307(c)(3)(A) of the Coastal Zone Management Act,

codified at 16 U.S.C. §1456(c)(3)(A) 1,6,7,15

§930.57 8

§930.58(a) 8

§930.60(c) 8

§940.629(a) 8

**[STATEMENT OF THE CASE]{.underline}**

On January 3, 2008, after over two-and-a-half years of delay, the
Division of Soil and Water Conservation ("the Division") of the Delaware
Department of Natural Resources and Environmental Control ("DNREC")
objected to a request submitted by G. Walter Swain ("Mr. Swain" or,
alternatively, "the Applicant") for certification that the Applicant's
proposed marina project, known as "Swain's Marina" ("the Project"), is
consistent with the Delaware Coastal Management Program ("DCMP"). The
Applicant hereby requests --- under Section 307(c)(3)(A) of the Coastal
Zone Management Act, codified at 16 U.S.C. §1456(c)(3)(A) ("CZMA" or
"the Act") --- that the Secretary of Commerce override DNREC's
objections to certification of the Project's consistency with the DCPM.
As a threshold matter, DNREC's objection is invalid under 15 C.F.R.
§930.129(b). DNREC's objection should also be overridden on a
substantive basis under 15 C.F.R. §930.121. The grounds for this appeal
are more fully articulated as follows:

1\. DNREC's objection did not comply with §307(c)(3)(A) of the Act and
the regulations in Subpart D of 15 C.F.R. §930. Therefore, as a
threshold matter, DNREC's objection is invalid under 15 C.F.R.
§930.129(b). Mr. Swain filed his request for a Coastal Zone Consistency
Determination with DNREC on April 25, 2005. Thereafter, DNREC (i)
repeatedly delayed its review of the Application without justification;
(ii) improperly stayed the six-month consistency review period; (iii)
failed to timely identify specific enforceable policies under the DCPM
with which the Project is inconsistent; and (iv) failed to provide Mr.
Swain with timely notice of the reasons for the substantial delay in its
review.

2\. The Project for which Mr. Swain provided the Consistency
Certification is consistent with the objectives or purposes of the Act
--- 16 U.S.C. §1456(c)(3)(A) --- and 15 C.F.R. §930.121.

**[STATEMENT OF FACTS]{.underline}**

1.  Mr. Swain owns land at the confluence of Cedar Creek and Mispillion
    River, on County Road 203 in Milford, Sussex County, Delaware. This
    location has been used commercially as a marina since before the
    1930s and was formerly the site of a 26 slip marina owned by Ms.
    Dorothy Bennett.

2.  In 1992, a hurricane destroyed much of the marina and its
    longstanding structures. At the time of the hurricane, there were
    106 mooring pilings and 26 boat slips in the marine.

3.  On July 7, 1997, Mr. Swain filed an Application with DNREC for a
    subaqueous land permit (CL-3807/97) to repair and replace the marina
    and structures that were destroyed by the 1992 storm. DNREC issued
    the requested permit on June 1, 1998 ("the DNREC Permit"), thereby
    approving the reconstruction of the marina with a total of 38-slips.

4.  After receiving the DNREC Permit, Mr. Swain filed a Section 10/404
    application with the U.S. Army Corps of Engineers ("USACOE"). Due to
    various delays, however, the DNREC Permit expired before the
    USACOE's review of federal permit application was completed.

5.  In 2004, Mr. Swain renewed his efforts to rebuild the marina --- a
    project called "Swain's Marina." Mr. Swain hired an environmental
    consulting firm, Environmental Resources, Inc., and began compiling
    all of the information required for the application process.

6.  On April 14, 2005, Mr. Swain filed an application for a second
    Subaqueous Lands Permit with DNREC's Division of Water Resources
    ("the Application"). (Exhibit A).[^1] An application for the
    appropriate permits was also filed with the U.S. Army Corps of
    Engineers. (Exhibit B).

7.  On April 25, 2005, Mr. Swain requested a federal consistency
    determination for Swain's Marina with respect to the Delaware
    Coastal Management Program from DNREC's Division of Soil and Water
    Conservation. (Exhibit C).

8.  On May 25, 2005, DNREC acknowledged receipt of Mr. Swain's request
    and sent a letter to Mr. Swain requesting additional information for
    a Federal Consistency Determination (FC 05.083). (Exhibit D).

9.  After receiving DNREC's May 25, 2005 letter, Mr. Swain's
    environmental consultant, David Hardin, corresponded with
    representatives from DNREC by phone and email in order to get the
    necessary materials together. An August 2, 2005 email from Bonnie
    Willis at DNREC further explained DNREC's concerns and requested
    additional materials. (Exhibit E).

10. On January 12, 2006, Mr. Swain provided the additional information
    requested by DNREC in the aforesaid May 25, 2005 letter and August
    2, 2005 email. (Exhibit F). On January 31, 2006, DNREC acknowledged
    receipt of the additional information, stated that the application
    was now ready for review, and set an April 17, 2006 deadline for
    completion of its review. (Exhibit G).

11. On February 5, 2006, DNREC placed the Project on public notice for a
    period of 30 days. (Exhibit G).

12. On March 23, 2006, Mr. Swain received another letter from DNREC,
    informing him that his review period was being extended by 90 days
    and that additional information was again required. The review
    deadline was unilaterally reset to July 17, 2006. (Exhibit H).

13. On June 30, 2006, Mr. Swain received another letter from DNREC,
    asking for more information and informing Mr. Swain that DNREC would
    not complete its review of the Swain's Marina Project within the
    statutorily-required 180-day period. (Exhibit I). DNREC then stated
    that if the Applicant did not agree "to place the project on hold",
    the Project would be denied based on "insufficient information"
    under 15 C.F.R. §930.64(d). (Exhibit I).

14. DNREC also required that the Applicant submit additional information
    within 90 days of its June 30, 2006 letter, after which DNREC would
    have a new 180-day period to review the Project. (Exhibit I). Given
    no other choice, Mr. Hardin acceded to DNREC's demands on July 13,
    2006, thereby extending the review period to an unspecified date.
    (Exhibit I).

15. On July 5, 2006, the Applicant provided additional requested
    materials to DNREC. (Exhibit J).

16. On September 29, 2006, DNREC sent Mr. Hardin a letter reminding him
    that the materials responsive to DNREC's June 30, 2006 request were
    due by October 16, 2006, although DNREC would be willing to grant a
    request for an extension. (Exhibit K).

17. On October 14, 2006, the Applicant, through Mr. Hardin, requested a
    30-day extension, agreeing to provide the additional materials by
    November 16, 2006. (Exhibit L).

18. On November 14, 2006, the Applicant provided DNREC with all the
    additional information DNREC had requested, thereby again completing
    the application process and restarting DNREC's new 180-day review
    period, which would set the review deadline at May 16, 2007 ---
    although this was never explicitly set out in a written agreement
    between the parties. (Exhibit M).

19. May 16, 2007 came and went, and Mr. Swain heard nothing from DNREC
    about his Consistency Determination request. Despite repeated
    efforts to inquire about the status, Mr. Swain received no response.

20. After hearing nothing from DNREC for eight months from submission of
    the final application materials, Mr. Swain retained legal counsel.
    On July 16, 2007, counsel for the Applicant sent DNREC a letter
    inquiring as to the status of DNREC's review. (Exhibit N). DNREC
    ignored this correspondence as well. Hearing nothing, a follow-up
    letter was sent on August 20, 2007, informing DNREC that legal
    action would be taken if it continued to ignore Mr. Swain and his
    Application. (Exhibit O).

21. On August 30, 2007, DNREC finally responded and informed the
    Applicant that the Application was taking longer to review that
    usual. (Exhibit P). Regarding the substantial delay, DNREC informed
    counsel for the Applicant that the "project was placed on HOLD on
    July 13, 2006." Despite the terms of the *temporary* stay agreement
    Mr. Hardin signed on July 13, 2006, giving DNREC another 180-day
    period, DNREC's new position was that the Project was on an
    indefinite HOLD for as long as DNREC saw fit. DNREC gave the
    Applicant no deadline for its review or any indication how long its
    "HOLD" would continue. (Exhibit P).

22. After hearing nothing for over another month, counsel for the
    Applicant sent a letter to the Secretary of DNREC, again inquiring
    about the status of Mr. Swain's Application and the reason for the
    undue delay. (Exhibit Q).

23. After hearing nothing from DNREC for another three months, DNREC's
    Division of Water Resources objected to the Applicant's consistency
    certification on January 3, 2008. (Exhibit R).

24. DNREC's decision to object to Mr. Swain's Application thus arrived
    more than two-and-a-half years (32 months) after the date Mr. Swain
    filed his Application. After missing two consecutive 180-day review
    periods, DNREC unilaterally decided to put the Project on an
    indefinite "hold", without ever informing the Applicant or securing
    his consent to same.

**[ARGUMENT]{.underline}**

**I. [The Secretary Should Override DNREC's Consistency Objection as a
Threshold]{.underline} [Matter Because the Objection Did Not Comply With
CZMA Regulations.]{.underline}**

Regulation 15 C.F.R. §930.129(b) states that, as a threshold matter, "if
the State agency's consistency objection is not in compliance with
Section 307 of the Act and the regulations contained in \[subpart D of
15 C.F.R. Part 930\], the Secretary ***shall*** override the State's
objection \[emphasis added\]."[^2] In this case, the State's objection
did not comply with §307 of the Act and with 15 C.F.R. §930.60 (Subpart
D). Therefore, DNREC's objection must be overridden as a threshold
matter.

**1. DNREC's Unreasonable Delay and Indefinite "Hold" on the Project's
Certification Violated Section 307(c)(3)(A) of the CZMA.**

Section 307(c)(3)(A) of the Act states, in relevant part, that:

> At the earliest practicable time, the state or its designated agency
> shall notify the Federal agency concerned that the state concurs with
> or objects to the applicant's certification. If the state or its
> designated agency fails to furnish the required notification within
> six months after receipt of its copy of the applicant's certification,
> the state's concurrence with the certification ***shall*** be
> conclusively presumed \[emphasis added\].[^3]

In this case, Mr. Swain submitted his certification of consistency on
April 25, 2005. After complying with DNREC's request to submit
additional information, on January 31, 2006, DNREC acknowledged receipt
of the information and stated that the application was ready for review,
starting the 180-day review period. Although DNREC set an initial
deadline of April 17, 2006, it later extended the deadline to July 17,
2006 --- still within the original 180-day review period which had
commenced on January 31, 2006.

On June 30, 2006, however, DNREC requested additional information and
informed the Applicant that it would not complete its review of the
project within the 180 day period --- by July 17, 2006. (*See* Exhibit
I). DNREC then strong-armed the Applicant into agreeing to a stay,
threatening that if the Applicant did not agree "to place the project on
hold" it would be denied based on "insufficient information" under 15
C.F.R. §930.64(d). (*See* Exhibit I).

The terms of the "agreement" dictated by DNREC were that the Applicant
had 90 days to submit the additional requested information, after which
DNREC would have a new 180-day review period. On November 14, 2006, the
Applicant provided DNREC with all the additional information DNREC had
requested, thereby again completing the application process and
restarting DNREC's 180-day review period --- with a new deadline of May
16, 2007 --- although this date was never set forth in any written
agreement between the parties. (*See* Exhibit M).

Notwithstanding that all of the information necessary for review of the
Applicant's consistency certification was provided to DNREC on November
16, 2006, DNREC failed to furnish the required notification whether it
concurred with or objected to the Applicant's certification within six
months after second 180-day review period --- i.e., before May 16, 2007.
Accordingly, pursuant to §307(c)(3)(A) of the Act, DNREC's concurrence
with the Applicant's certification was thus presumed, effective May 16,
2007. Hence, DNREC's objection to the Applicant's consistency
certification, more than six months after the receipt of the Applicant's
completed certification request, violates §307(c)(3)(A) of the Act.

**2. DNREC's Unreasonable Delay and Indefinite "Hold" on the Project's
Certification Violated 15 C.F.R. § 930.60 (Subpart D).**

Section 930.60(a) states that "the State agency's six-month review
period (*see* §930.62(a)) of an applicant's consistency certification
begins on the date the State agency receives the consistency
certification required by §930.57 and all the necessary data and
information required by §930.58(a)." This occurred on January 31, 2006,
when DNREC acknowledged the receipt and sufficiency of the information
submitted by the Applicant and informed him the review period had begun.

Section 930.60(c) states that:

> The State agency's determination that a certification and necessary
> data and information under paragraph (a) of this section is complete
> is not a substantive review of the adequacy of the information
> received. If an applicant has submitted all necessary data and
> information required by § 930.58, then a State agency's or Federal
> agency's assertion that the submitted information is substantively
> deficient, or **[a State agency's or Federal agency's request for
> clarification of the information provided, or information or data
> requested that is in addition to that required by § 930.58 shall not
> extend the date of commencement of State agency review]{.underline}**
> \[emphasis added\].

In this case, after DNREC had advised the Applicant his certification
was complete, DNREC sent a letter on March 23, 2006 requesting
additional data and extending the date of the agency's review. (*See*
Exhibit H). More information was again requested on June 30, 2006, and
this time, DNREC forced the Applicant to consent to an improper "hold"
on its review. (*See* Exhibit I). Both of these actions violate 15
C.F.R. §930.60(c).

Regarding DNREC's "hold" on the certification process, 15 C.F.R.
§930.60(b) states that:

> \(b\) State agencies and applicants (and persons under subpart E of
> this part) may mutually agree in writing to stay the six-month
> consistency review period. **[Such an agreement shall be in writing
> and state a *specific date* on when the stay will end]{.underline}**.
> The State agency shall provide a copy of the written agreement to the
> Federal agency and the Federal agency shall not presume State agency
> concurrence with an applicant's consistency certification when such a
> written agreement to stay the six-month consistency review period is
> in effect. **[The State agency shall not stop, stay, or otherwise
> alter the consistency review period without such a written agreement
> with the applicant]{.underline}** \[emphasis added\].

Here, DNREC told the Applicant that it could either agree to its
improper --- and indefinite --- "hold" on the project, or face an
improper objection. DNREC threatened that it would object to the
Applicant's consistency based on insufficient information even though it
had previously advised the Applicant his certification was complete.
DNREC's heavy-handed tactics violate 15 C.F.R. §930.60(b) for the
following reasons:

**The Agreement does not state a *specific date* when the stay will
end**. Instead, the Agreement says that the Applicant has 90 days to
submit his information and then a *new* 180-day period will begin. DNREC
did not, however, provide a new end date --- likely because DNREC never
intended to meet it anyway. DNREC acknowledged that the Applicant had
provided all the new required information on November 16, 2006. Thus,
180 days from November 16, 2006 would be May 16, 2007. That would be the
***latest*** DNREC's new deadline could possibly extend. And yet, DNREC
did not provide its consistency determination by May 16, 2007. Instead,
DNREC took over *eight months* from May 16, 2007 to make its
determination. This unreasonable and unjustifiable delay violated 15
C.F.R. §930.60(b).

**The Applicant did not consent to an indefinite "hold", as DNREC
suggests**. On August 30, 2006, in response to numerous letters from Mr.
Swain's counsel, DNREC asserted that "if the review requires time beyond
the 180 days, the State agency and applicant may mutually agree to
suspend the consistency time clock (HOLD) extending the review period
until all matters can be resolved." (*See* Exhibit P). But this
statement is both legally and factually wrong.

First, 15 C.F.R. §930.60(b) does not allow for any such indefinite
"hold" until "all matters can be resolved." Rather, §930.60(b) requires
that any "agreement shall be in writing and state a specific date on
when the stay will end." That did not happen here. Second, the Applicant
never agreed to an indefinite "hold" on the project. The terms of the
agreement stated that after he provided all new required information, a
new 180-day period would begin. That began on November 16, 2006. Section
930.60(b) does not allow --- or even mention --- indefinite holds, and
even if it did, the Applicant never agreed to one. For these additional
reasons, DNREC's unreasonable and unjustified delay violated 15 C.F.R.
§930.60(b).

**3. DNREC's Violation of §307 and 15 C.F.R. §930 (Subpart D) Requires
that, as a Threshold Matter, the Secretary Override DNREC's Consistency
Objection.**

In light of DNREC's procedural violations, the Secretary must override
DNREC's consistency objection as a threshold matter under 15 C.F.R.
§930.129(b).

**II. [The Application is Consistent With the Objectives of the
CZMA]{.underline}**

DNREC's consistency objection must also be overridden for another reason
--- the Project ***is*** consistent with the objectives and purposes of
the CZMA.[^4] Under 15 C.F.R. §930.121, "a federal license or permit
activity, or a federal assistance activity, is 'consistent with the
objectives or purposes of the Act' if it satisfies each of the following
three requirements:

> \(a\) The activity furthers the national interest as articulated in
> §302 or §303 of the Act, in a significant or substantial manner.
>
> \(b\) The national interest furthered by the activity outweighs the
> activity's adverse coastal effects, when those effects are considered
> separately or cumulatively.
>
> \(c\) There is no reasonable alternative available which would permit
> the activity to be conducted in a manner consistent with the
> enforceable policies of the management program. The Secretary may
> consider but is not limited to considering previous appeal decisions,
> alternatives described in state objection letters and alternatives and
> other information submitted during the appeal.

The Swain's Marina Project satisfies these three requirements.

**1. The Swain's Marina Project Furthers the National Interest in a
Significant and Substantial Manner.**

The Swain's Marina Project promotes the national interest defined in
Sections 302 and 303 of the Act, in a significant and substantial
manner. Section 302(a) of the Act states that "there is a national
interest in the effective management, beneficial use, protection and
development of the Coastal Zone." Similarly, Section 302(a) of the Act
states that "the coastal zone is rich in a variety of natural,
commercial, recreational, ecological, industrial, and esthetic resources
of immediate and potential value to the present and future well-being of
the Nation." CZMA appeals decisions recognize that "Congress has broadly
defined the national interest in coastal zone management to include both
protection and development of coastal resources. Thus, Element \[1\]
will normally be satisfied on appeal."[^5]

In this case, the Swain's Marina Project will revitalize the marina for
the commercial, recreational, and aesthetic benefits that the public has
enjoyed since before the 1930s. As noted above, this site was
continuously operated as a marina from before 1930 through 1992, when a
hurricane destroyed the marina's infrastructure. In 1997, when Mr. Swain
began his efforts to bring back the marina, due to high public demand,
DNREC issued him a permit. But for timing and delay issues regarding
federal permits from the Army Corps of Engineers, Swain's Marina would
have been rebuilt at that time. Mr. Swain is now simply seeking to
return the site to the vibrant coastal commercial and recreational hub
it once was. This goal is consistent with §302 of the Act.

Mr. Swain's project is also consistent with §303(1) of the Act, which
states that the national policy is "to preserve, protect, develop, and
where possible, ***to restore or enhance***, the resources of the
Nation's coastal zone for this and succeeding generations." Similarly,
the objectives of §§303(2)(E) and (F) are realized through the Swain's
Marina Project:

> to encourage and assist the states to exercise effectively their
> responsibilities in the coastal zone through the development and
> implementation of management programs to achieve wise use of the land
> and water resources of the coastal zone, giving full consideration to
> ecological, cultural, historic, and (sic) esthetic values as well as
> the needs for compatible economic development, which programs should
> at least provide for ---

\(E\) public access to the coasts for recreation purposes,

> \(F\) assistance in the redevelopment of deteriorating urban
> waterfronts and ports, and sensitive preservation and restoration of
> historic, cultural, and esthetic coastal features.

Reopening Swain's Marina will once again allow the public to access the
waters along the Mispillion River, where they have for decades, and will
redevelop and revitalize the marina's current dilapidated and damaged
structures. The Swain's Marina Project will greatly benefit the citizens
of Delaware and the public at-large by revitalizing this once vibrant
area with a new, modern marina. The recreational, commercial, cultural,
historic, and aesthetic improvements the Project will bring to the area
will benefit the national interest in a significant and substantial
manner and promote the tenets of the CZMA.

**2. The National Interest Furthered by the Swain's Marina Project
Outweighs Any Putative Adverse Coastal Effects.**

The impact of the Swain's Marina Project on Delaware's Coastal Zone is
overwhelmingly positive and beneficial to the public. To the extent any
adverse coastal effects are not wholly mitigated, they are far
outweighed by the substantial national benefits of the Project.

DNREC's objections to Swain's Marina and its determination that the
project is inconsistent with the policies of CZMA and DCMP are based
entirely upon unadulterated speculation and conjecture. DNREC's
generalized and broad allegations of harm to the area's wildlife and
habitat are unsupported by any scientific or objective evidence.

DNREC's conclusion that the marina poses an unacceptably high potential
for significant adverse impacts to rare and threatened shorebird species
is not supported by the facts. The Red Knot shorebirds are not
classified as either endangered or threatened species in Delaware.
Although DNREC had hoped they would be classified as such, a recent
determination by the Shorebird Technical Committee refused to classify
the Red Knot as either endangered or threatened. Where a project does
not involve impacts to threatened or endangered species, the Secretary
has previously concluded that the benefits outweigh a project's adverse
impact.[^6]

Similarly, DNREC's allegations that the marina would have a detrimental
effect on the habitat, breeding, or nesting of the Red Knot is entirely
speculative. It cites no scientific studies conducted by DNREC, or any
other agency, demonstrating any adverse impact by the proposed marina.
The conclusion that the public would somehow be adversely affected by
the marina is entirely unsupported by any objective evidence and is
likewise speculative at best. The proposed marina would be constructed
on Mr. Swain's private property and the public would have the benefit of
its use. As discussed, the site had been a marina since before the 1930
until the time of a hurricane in 1992. Other than citing to unrelated
and irrelevant documents and articles regarding shorebirds, DNREC's
denial cites no evidence that the marina would adversely affect the
public in any way.

Finally, DNREC's conclusion that the marina will have an adverse effect
on water quality in the area is similarly based entirely upon pure
conjecture. Other than generalized and vague allegations of adverse
impact, the denial provides no evidence, scientific or otherwise, as to
the effect of the marina on water quality. This site operated as a
marina for decades, and was given a permit in 1997, without any concerns
about water quality.

For these reasons, DNREC's objection to Mr. Swain's consistency
certification is inconsistent with the CZMA, DCMP, and all of the other
regulations cited by DNREC.

**3. There Is No Reasonable Alternative.**

DNREC's consistency objection neither proposes nor suggests any
reasonable alternative to the Project as proposed. Additionally, DNREC
fails to consider the history of the site or its own previous conduct
with respect to the marina and the surrounding area, as is proper under
15 C.F.R. § 930.121(c).

Specifically, the site has been used as a marina for decades. DNREC has
previously granted a marina permit for the site and, in 2002, granted
permits for a site immediately adjacent to Mr. Swain's property without
requiring the owner to provide any of the application submissions or
supporting materials, evidence, and documentation which DNREC required
Mr. Swain to submit in the instant case.

Furthermore, on numerous occasions, DNREC and its officers and/or
employees have made offers, on behalf of the State, to purchase Mr.
Swain's property (albeit at a price far less than the property's fair
market value). Additionally, DNREC and its officers and/or employees
have repeatedly delayed the processing and consideration of Mr. Swain's
Application without just cause, in an effort to "wear down" Mr. Swain,
in hopes that Mr. Swain would either agree to sell his property to the
State or simply give up and forbear upon any further pursuit of his
Application. DNREC's goal all along appears to have been to frustrate,
thwart, and ultimately proscribe the Swain's Marina Project, at every
turn, regardless of its substantive merits or compliance with the CZMA.

**III. [Conclusion]{.underline}**

For all of the foregoing reasons, and for all the reasons and evidence
to be set forth in the Applicant's Opening Brief, the Applicant
respectfully asks the Secretary to find and conclude that:

1\. DNREC failed to comply with Section 307 and Subpart D of the NOAA
regulations and, therefore, pursuant to 15 C.F.R. §930.129(b), all of
DNREC's objections must be overridden.

2\. The Swain's Marina Project is consistent with the objectives and
purposes of the Act and, as such, all of DNREC's objections must be
overridden.

Respectfully Submitted,

> BY:\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
>
> John W. Paradee, Esquire (DE Bar #2767)
>
> Kevin M. Baird, Esquire (DE Bar #4219)
>
> PRICKETT, JONES & ELLIOTT, P.A.
>
> 11 North State Street
>
> Dover, Delaware 19901
>
> \(302\) 674-3841
>
> *Attorneys for the Applicant/Appellant*

Dated: March 3, 2008

**[CERTIFICATE OF SERVICE]{.underline}**

I hereby certify that on March 3, 2008, consistent with 15 C.F.R.
§930.125 and DNREC's objection letter, copies of the foregoing INITIAL
BRIEF ON APPEAL and APPENDIX TO THE INITIAL BRIEF ON APPEAL have been
sent to the following:

**[VIA Federal Express - Overnight]{.underline}**

> Secretary Carlos M. Gutierrez
>
> Herbert C. Hoover Building
>
> 1401 Constitution Avenue, NW
>
> Washington, DC 20230
>
> Mr. Joel La Bissonniere
>
> Assistant General Counsel for Ocean Services
>
> (GCOS)
>
> 1305 East West Highway
>
> Room 6111 SSMC4
>
> Silver Spring, MD 20910
>
> Ms. Sarah W. Cooksey
>
> Delaware Department of Natural Resources and Environmental Control
>
> Division of Soil and Water Conservation
>
> 89 Kings Highway
>
> Dover, DE 19901
>
> Secretary John A. Hughes
>
> Department of Natural Resources and Environmental Control
>
> 89 Kings Highway
>
> Dover, DE 19901
>
> BY:\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
>
> John W. Paradee, Esquire (DE Bar #2767)
>
> Kevin M. Baird, Esquire (DE Bar #4219)
>
> PRICKETT, JONES & ELLIOTT, P.A.
>
> 11 North State Street
>
> Dover, Delaware 19901
>
> \(302\) 674-3841
>
> *Attorneys for the Applicant/Appellant*

[^1]: The referenced Exhibits are collected in the enclosed Appendix to
    the Initial Brief For Appeal.

[^2]: *See, e.g., Dismissal Letter -- Collier Resources Company
    Consistency Appeal* (Apr. 17, 2002) at fn.6.

[^3]: 16 U.S.C. §1456(c)(3)(A).

[^4]: *See* 16 U.S.C. §1456(c)(3)(A).

[^5]: *Decisions and Findings in the Consistency Appeal of Islander East
    Pipeline Company, LLC*, May 5, 2004, at pg. 3-4.

[^6]: *Decisions and Findings in the Consistency Appeal of Islander East
    Pipeline Company, LLC*, May 5, 2004, at pg. 10.