Norfolk & Walpole v. US Army Corps of Engineers

• Decision Date: 26 August 1991
• Docket Number: Civ. A. No. 91-10771-MA.
• Citation: 772 F. Supp. 680
• Parties: TOWNS OF NORFOLK AND WALPOLE, Plaintiffs, v. The UNITED STATES ARMY CORPS OF ENGINEERS; Lt. Colonel James K. Hughes, in his capacity as the District Engineer; and the Massachusetts Water Resources Authority, Defendants.
• Court: U.S. District Court — District of Massachusetts

772 F. Supp. 680

TOWNS OF NORFOLK AND WALPOLE, Plaintiffs, v. The UNITED STATES ARMY CORPS OF ENGINEERS; Lt. Colonel James K. Hughes, in his capacity as the District Engineer; and the Massachusetts Water Resources Authority, Defendants.

Civ. A. No. 91-10771-MA.

United States District Court, D. Massachusetts.

August 26, 1991.

COPYRIGHT MATERIAL OMITTED

Stephen Daniel Anderson, Anderson & Kreiger, Boston, Mass., Christopher H. Little, Tillinghast, Collins & Grahams, Providence, R.I., Leonard Kopelman and John W. Giorgio, Kopelman & Paige, P.C., Boston, Mass., for plaintiffs.

George Bunsen Henderson, U.S. Attorney's Office, and Steven H. Goldberg, Massachusetts Water Resources Authority, Boston, Mass., for defendants.

MEMORANDUM AND ORDER

MAZZONE, District Judge.

In this action, the Towns of Walpole and Norfolk, Massachusetts ("the Towns"), challenge the decision of the United States Army Corps of Engineers to issue permit no. XXXXXXXXX. The permit in question approves various aspects within the Corps' jurisdiction of a multi-billion dollar sewage treatment project intended to eliminate the pollution of Boston Harbor with untreated sewage from the greater metropolitan Boston area in violation of federal law. The Harbor clean-up is coordinated by the United States Environmental Protection Agency (EPA) and the Massachusetts Water Resources Authority (MWRA) under a remedial order issued by this court after a finding of liability. United States v. Metropolitan Dist. Comm'n, 23 Env't Rep.Cas. (BNA) 1350, 16 Envtl.L.Rep. (Envtl.L.Inst.) 20621, 1985 WL 9071 (D.Mass. Sept. 5, 1985). One aspect of the project requiring Army Corps approval is the planned siting of a residuals landfill at a site adjacent to the Massachusetts Correctional Institute at Cedar Junction in Walpole, near the Town of Norfolk (the "Walpole site"). Having challenged the EPA's preparation of the Environmental Impact Statement (EIS) for this aspect of the project under the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4347, see Town of Norfolk v. EPA, 761 F.Supp. 867 (D.Mass.1991), the Towns now challenge the Army Corps' compliance with the applicable permitting regulations promulgated under § 404(b)(1) of Clean Water Act, 33 U.S.C. § 1344(b)(1); they also challenge the Corps' compliance with NEPA. This matter is before the court on defendants' motion for summary judgment. Because the ground is well-travelled and the arguments clearly and cogently stated, I do not believe oral argument is necessary. It is also my objective to expedite the appeal process and to permit coordination with the appeal of the earlier NEPA cases.

I

I need not summarize the background facts of this case, as this ground has been covered in numerous rulings in connection with the Boston Harbor clean-up. Readers unfamiliar with the history of this case may refer to Town of Norfolk, 761 F.Supp. at 872-73, and United States v. Metropolitan Dist. Comm'n, 757 F.Supp. 121, 123-26 (D.Mass.) (order banning new sewer hook-ups), aff'd, 930 F.2d 132 (1st Cir.1991).

The components of the clean-up project requiring Army Corps approval include the following: construction of a seawall along the eastern shore of Deer Island to prevent flooding of a proposed wastewater treatment plant; construction of a five-mile inter-island tunnel to carry preliminarily treated wastewater from the grit removal facility in Quincy to a new secondary treatment facility at Deer Island; construction of a nine-mile effluent outfall tunnel to carry treated wastewater from Deer Island for discharge into Massachusetts Bay; and — the only activity relevant to this litigation — construction of a residuals landfill at the Walpole site. The basis for the Corps' jurisdiction is that construction of the landfill will require filling a 600-square-foot, man-made wetland area, formerly used by the Massachusetts Department of Corrections as part of an obstacle course for training prison guards. The Army Corps issued the permit and the 37-page record of decision accompanying it on February 11, 1991, and the Towns instituted the instant action.

Judicial review of agency actions such as this is generally limited to the administrative record before the agency at the time it made its decision. In this case, the record contained the memoranda of one Army Corps official who was quite critical of the Walpole site and another internal memorandum that led the Towns to believe that the Department of Justice and EPA had unduly influenced the Corps' decision to issue the permit. The Towns subpoenaed the record keepers of EPA and the Justice Department to appear for depositions and sought discovery of documents reflecting communications among these executive agencies and the Corps. The defendants promptly moved for a protective order, and the Towns moved to compel discovery; in response, I ordered the defendants to submit to the court for in camera inspection all documents responding to the subpoena. On the basis of this inspection, I concluded that the documents were properly excluded from the administrative record and did not include sufficient indicia of bad faith to require looking beyond the administrative record. Memorandum & Order of June 19, 1991, 137 F.R.D. 183. I therefore allowed the protective order, denied the order to compel, and sealed and impounded the documents. Id.¹

II

The statutes and regulations governing this action first came into being with the enactment of the Federal Water Pollution Control Act Amendments of 1972, now known as the Clean Water Act. Section 301(a) of the Act, 33 U.S.C. § 1311(a), prohibits the discharge of dredged or fill material into the navigable waters of the United States without a permit issued under § 404(b)(1), 33 U.S.C. § 1344(b)(1). The guidelines for issuing such permits are codified at 40 C.F.R. pt. 230 hereinafter Guidelines. The definition of "waters of the United States" in the Guidelines includes wetlands. 40 C.F.R. § 230.3(s)(7). See also id. § 230.3(t) (defining "wetlands"); United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985) (discussing Corps' interpretation of "wetlands"). Most importantly, § 230.10 of the Guidelines contains "four conditions which must be satisfied in order to make a finding that a proposed discharge of dredged or fill material complies with the Guidelines." 40 C.F.R. § 230.4. The § 230.10 conditions are at the heart of this dispute.

The Army Corps must also perform a "public interest review" of all permit applications pursuant to 33 C.F.R. § 320.4(a). The public interest review is also pertinent in the instant case.

This court's review of the Army Corps' decision to issue any permit is governed by § 706 of the Administrative Procedure Act, 5 U.S.C. § 706. The court must set aside the agency decision if it determines that the action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Id. § 706(2)(A). In explaining how to apply this standard, the Supreme Court has said,

To make this finding the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823-24, 28 L.Ed.2d 136 (1971) (citations omitted).

In performing this review, the court generally constrains itself to the record that was before the agency when it made the decision. Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973); Valley Citizens for a Safe Environment v. Aldridge, 886 F.2d 458, 460 (1st Cir.1989). There may be circumstances in which a reviewing court is obliged to look beyond the administrative record, but I have previously decided that such circumstances are not present here. See Memorandum & Order of June 19, 1991, at 187-189. Moreover, having reviewed the record of decision and the administrative record for this permitting decision, I conclude that it is not necessary to inquire outside the record to explain the Corps' decision. See Friends of the Earth v. Hintz, 800 F.2d 822, 829 (9th Cir.1986).

Summary judgment is appropriate in a case challenging agency decisionmaking, as in all other cases, where "there is no genuine issue as to any material fact" and "the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The court must view the record in its entirety in the light most favorable to the nonmoving party and indulge all inferences in that party's favor. Moreau v. Local 247, Int'l Brotherhood of Firemen, 851 F.2d 516, 519 (1st Cir.1988). In order to create a triable issue of fact, the nonmovant must set forth specific facts. Fed.R.Civ.P. 56(e). "Unsupported allegations are insufficient to create a genuine dispute." Ortega-Rosario v. Alvarado-Ortiz, 917 F.2d 71, 73 (1st Cir.1990).

III

Court I of the Towns' complaint alleges that the Army Corps' decision to issue the permit violated the § 404(b)(1) Guidelines. The Towns' brief stresses several deficiencies of the permitting process, and I discuss these seriatim.

A. Analysis of Practicable Alternatives

The Guidelines provide that "no discharge of dredged or fill material shall be permitted if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences." 40 C.F.R. § 230.10(a). Moreover, where, as here, the activity for which a permit is sought "does not require access or proximity to or siting within the special aquatic site in question to fulfill its basic purpose (i.e., is not `water dependent'), practicable alternatives that do not involve...