850 F.2d 36 (2nd Cir. 1988), 852, Bersani v. United States E.P.A.

Docket Nº:852, 902, Dockets 87-6275, 87-6295.
Citation:850 F.2d 36
Party Name:John A. BERSANI, Newport Galleria Group, Robert J. Congel and the Pyramid Companies, Appellants, Joseph Robichaud and Citizens in Support of Attleboro Mall, Intervenor- Plaintiffs-Appellants, Home Building Association of Massachusetts, Intervenor-Plaintiff, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, United States Army Corps of Engineers, Lee
Case Date:June 08, 1988
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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850 F.2d 36 (2nd Cir. 1988)

John A. BERSANI, Newport Galleria Group, Robert J. Congel

and the Pyramid Companies, Appellants,

Joseph Robichaud and Citizens in Support of Attleboro Mall,

Intervenor- Plaintiffs-Appellants,

Home Building Association of Massachusetts, Intervenor-Plaintiff,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, United States

Army Corps of Engineers, Lee Thomas, in his official

capacity as Administrator of the United States Environmental

Protection Agency, Richard K. Dawson, in his official

capacity as Assistant Secretary for Civil Works, United

States Army, and Jennifer Joy Wilson, in her official

capacity as Assistant Administrator for External Affairs,

United States Environmental Protection Agency, Appellees,

Sierra Club, Environmental Defense Fund, National Wildlife

Federation, National Audubon Society, Conservation Law

Foundation of New England, Inc., Massachusetts Audubon

Society, Citizens for Responsible Environmental Management,

Massachusetts Society for Conservation Professionals,

Audubon Society of Rhode Island, Rhode Island Association of

Conservation Commissioners and Natural Resources Defense

Council, Intervenor-Defendants.

Nos. 852, 902, Dockets 87-6275, 87-6295.

United States Court of Appeals, Second Circuit

June 8, 1988

Argued March 16, 1988.

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Albert J. Beveridge, III, Washington, D.C. (Gary H. Baise, Virginia S. Albrecht, Marc A. Zeppetello, David M. Friedland, and Beveridge & Diamond, Washington, D.C., on the brief), for appellants.

Paul D. Kamenar, Washington, D.C. (Daniel J. Popeo, Washington, D.C., and Henry M. Holzer, Brooklyn, N.Y., on the brief), for intervenor-appellants.

Donald A. Carr, Dept. of Justice, Washington, D.C. (Roger J. Marzulla, Acting Asst. Atty. Gen., Peter R. Steenland, Jr., Margaret N. Strand, Dept. of Justice, Gail B. Cooper, E.P.A., Washington, D.C., and Ann H. Williams-Dawe, E.P.A., Boston, Mass., on the brief), for appellees.

James T.B. Tripp, Environmental Defense Fund, New York City (Michael E. Herz, Environmental Defense Fund, New York City, Michael J. Bean, Environmental Defense Fund, Washington, D.C., Hope Babcock, National Audubon Society, Washington, D.C., Robert Dreher, Sierra Club Legal Defense Fund, Washington, D.C., Jerry Jackson, National Wildlife Federation, Washington, D.C., and Peter Shelley, Conservation Law Foundation of New England, Boston, Mass., on the brief), for intervenor-appellees.

R. Sarah Compton, Carl W. Schwarz, Kurt J. Olson, and McDermott, Will & Emery, U.S. Chamber of Commerce, Washington, D.C., and Robin S. Conrad, National Chamber Litigation Center, Washington, D.C., filed a brief as amicus curiae.

Before TIMBERS, PRATT and MINER, Circuit Judges.

TIMBERS, Circuit Judge:

Appellants John A. Bersani, the Pyramid Companies, Newport Galleria Group and

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Robert J. Congel ("Pyramid", collectively) appeal from a judgment entered October 23, 1987 in the Northern District of New York, Thomas J. McAvoy, District Judge, granting summary judgment in favor of appellees, the United States Environmental Protection Agency ("EPA"), the United States Army Corps of Engineers (the "Corps"), Lee Thomas, the Administrator of the EPA, Richard K. Dawson, Assistant Secretary for Civil Works, United States Army, and Jennifer Joy Wilson, Assistant Administrator for External Affairs of the EPA (the "Federal Appellees" collectively), and denying Pyramid's motion for summary judgment. Bersani v. EPA, 674 F.Supp. 405 (N.D.N.Y. 1987).

This case arises out of Pyramid's attempt to build a shopping mall on certain wetlands in Massachusetts known as Sweedens Swamp. Acting under the Clean Water Act, 33 U.S.C. Sec. 1251 et seq. (1982), EPA vetoed the approval by the Corps of a permit to build the mall because EPA found that an alternative site had been available to Pyramid at the time it entered the market to search for a site for the mall. The alternative site was purchased later by another developer and arguably became unavailable by the time Pyramid applied for a permit to build the mall.

On appeal, the thrust of Pyramid's argument is a challenge to what it calls EPA's "market entry" theory, i.e., the interpretation by EPA of the relevant regulation, which led EPA to consider the availability of alternative sites at the time Pyramid entered the market for a site, instead of at the time it applied for a permit. Pyramid argues principally (1) that the market entry approach is contrary to the regulatory language and past practice; and (2) that since the Corps, another agency which was jointly responsible with EPA for administering the program in question, interpreted the pertinent regulation in a different way than EPA had, and since the market entry issue does not involve environmental expertise, this Court should not defer to EPA's interpretation of the regulation. Other subordinate claims are raised by appellants as well as by two intervenors and the amicus curiae. 1

We hold (1) that the market entry theory is consistent with both the regulatory language and past practice; (2) that EPA's interpretation, while not necessarily entitled to deference, is reasonable; and (3) that EPA's application of the regulation is supported by the administrative record. We agree with the district court's conclusion that EPA's findings were not arbitrary and capricious. We also hold that Pyramid's other arguments, and the arguments of one intervenor and the amicus, lack merit.

We affirm.

I.

We shall summarize only those facts and prior proceedings believed necessary to an

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understanding of the issues raised on appeal.

  1. Statutory and Regulatory Framework

    One of the sections of the Clean Water Act (the "Act") relevant to the instant case is Sec. 301(a), 33 U.S.C. Sec. 1311(a) (1982), which prohibits the discharge of any pollutant, including dredged or fill materials, into the nation's navigable waters, except in compliance with the Act's provisions, including Sec. 404. It is undisputed that Sweedens Swamp is a "navigable water", as defined in 33 U.S.C. Sec. 1362 (1982), and that Pyramid's shopping center proposal will involve the discharge of dredged or fill materials.

    Section 404 of the Act, 33 U.S.C. Sec. 1344 (1982 & Supp. III 1985), focusing on dredged or fill materials, provides that the United States Army and EPA will share responsibility for implementation of its provisions. EPA and the Corps also share responsibility for enforcing the Act. 33 U.S.C. Secs. 1311 (1982), 1319 (1982), 1344(n) and (s) (1982). Section 404(a) authorizes the Secretary of the Army, acting through the Corps, to issue permits for the discharge of dredged or fill materials at particular sites. 33 U.S.C. Sec. 1344(a) (1982). Section 404(b) provides that, subject to Sec. 404(c), the Corps must base its decisions regarding permits on guidelines (the "404(b)(1) guidelines") developed by EPA in conjunction with the Secretary of the Army. 33 U.S.C. Sec. 1344(b) (Supp. III 1985).

    The 404(b)(1) guidelines, published at 40 C.F.R. Part 230 (1987), are regulations containing the requirements for issuing a permit for discharge of dredged or fill materials. 40 C.F.R. Sec. 230.10(a) 2 covers "non-water dependent activities" (i.e., activities that could be performed on non-wetland sites, such as building a mall) and provides essentially that the Corps must determine whether an alternative site is available that would cause less harm to the wetlands. Specifically, it provides that "no discharge of dredged or fill material shall be permitted if there is a practicable alternative" to the proposal that would have a "less adverse impact" on the "aquatic ecosystem". It also provides that a practicable alternative may include "an area not presently owned by the applicant which could reasonably be obtained, utilized, expanded or managed in order to fulfill the basic purpose of the proposed activity." 40 C.F.R. 230.10(a)(2). It further provides that, "unless clearly demonstrated otherwise", practicable alternatives are (1) "presumed to be available" and (2) "presumed to have less adverse impact on the aquatic ecosystem". 40 C.F.R. 230.10(a)(3). Thus, an applicant such as Pyramid must rebut both of these presumptions in order to obtain a permit. Sections 230.10(c) and (d) require that the Corps not permit any discharge that would contribute to significant degradation of the nation's wetlands and that any adverse impacts must be mitigated through practicable measures.

    In addition to following the 404(b)(1) guidelines, the Corps may conduct a "public

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    interest review". 33 C.F.R. Sec. 320.4 (1987). This public interest review is not mandatory under Sec. 404, unlike consideration of the 404(b) guidelines. In a public interest review, the Corps' decision must reflect the "national concern" for protection and use of resources but must also consider the "needs and welfare of the people." Id.

    Under Sec. 404(c) of the Act, 33 U.S.C. Sec. 1344(c), EPA has veto power over any decision of the Corps to issue a permit. It is this provision that is at the heart of the instant case.

    Specifically, Sec. 404(c) provides that the Administrator of EPA may prohibit the specification of a disposal site "whenever he determines, after notice and opportunity for public hearings, that the discharge of materials into such area will have an unacceptable adverse effect" on, among other things, wildlife. 3 An "unacceptable adverse effect" is defined in 40 C.F.R. Sec. 231.2(e) as an effect that is likely to result in, among other things, "significant loss of or damage to ... wildlife habitat". The procedure under Sec. 404(c) begins with the Regional Administrator ("RA") who, under Sec. 231.3(a)...

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