Bersani v. USEPA

• Decision Date: 06 October 1987
• Docket Number: No. 86-CV-772.,86-CV-772.
• Parties: John A. BERSANI, Newport Galleria Group, Robert J. Congel and the Pyramid Companies, Plaintiffs, and Citizens in Support of Attleboro Mall and Joseph Robichaud, Intervenor-Plaintiffs, and Home Builders 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, Defendants, and Conservation Law Foundation of New England, Environmental Defense Fund, National Audubon Society, Sierra Club Legal Defense Fund, and National Wildlife Federation, Intervenor-Defendants.
• Court: U.S. District Court — Northern District of New York

674 F. Supp. 405

John A. BERSANI, Newport Galleria Group, Robert J. Congel and the Pyramid Companies, Plaintiffs and Citizens in Support of Attleboro Mall and Joseph Robichaud, Intervenor-Plaintiffs and Home Builders 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, Defendants and Conservation Law Foundation of New England, Environmental Defense Fund, National Audubon Society, Sierra Club Legal Defense Fund, and National Wildlife Federation, Intervenor-Defendants.

No. 86-CV-772.

United States District Court, N.D. New York.

October 6, 1987.

COPYRIGHT MATERIAL OMITTED

Beveridge & Diamond, P.C., Washington, D.C., Levine, Gouldin & Thompson, Binghamton, N.Y., for plaintiffs; Gary H. Baise, Virginia S. Albrecht, Marc Zeppetello, Washington, D.C., David M. Gouldin, Binghamton, N.Y., of counsel.

Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, Boston, Mass., for intervenor-plaintiff Home Builders Ass'n of Massachusetts; Michael S. Gardener, of counsel.

Paul D. Kamenar, Washington, D.C., for intervenor-plaintiffs Citizens in Support of Attleboro Mall and Joseph Robichaud.

Lawrence R. Liebesman, U.S. Dept. of Justice, Land and Natural Resources Div., Washington, D.C., for defendants.

Gail B. Cooper, Office of General Counsel, E.P.A., Washington, D.C., for defendants.

Ann Williams-Dawe, Boston, Mass., for defendants U.S. E.P.A.

James T.B. Tripp, New York City, for defendant-intervenor Environmental Defense Fund.

Robert Dreher, Washington, D.C., for defendant-intervenor Sierra Club Legal Defense Fund.

McDermott, Will & Emery, Washington, D.C., for amicus curiae United States Chamber of Commerce; R. Sarah Compton, of counsel.

Chernin & Gold, Binghamton, N.Y., for amicus curiae U.S. Chamber of Commerce; Donald M. Flanagan, of counsel.

DECISION AND ORDER

McAVOY, District Judge.

Plaintiffs John A. Bersani, the Pyramid Companies¹, Robert J. Congel and the Newport Galleria Group² have brought this action challenging a "Final Determination" rendered by the defendant United States Environmental Protection Agency (the "EPA") on May 13, 1986, pursuant to Section 404(c) of the Clean Water Act, 33 U.S.C. section 1344(c).³ This Final Determination vetoed a decision rendered by the defendant United States Army Corps of Engineers (the "Corps") in June 1985, which decision granted Pyramid permission to construct a shopping mall in certain wet-lands, known as "Sweden's Swamp," located in South Attleboro, Massachusetts. Pyramid seeks an order from this Court vacating the EPA's determination on the grounds that it is arbitrary, capricious and otherwise not in accordance with the law. See 5 U.S.C. sections 704, 706. The court has before it plaintiffs' and defendants' cross-motions for summary judgment.⁴

BACKGROUND

1. Statutory and Regulatory Framework

The Clean Water Act (the "Act"), 33 U.S.C. sections 1251 et seq., the basic federal legislation controlling water pollution, embodies Congress' effort to restore and maintain the chemical, physical, and biological integrity of the Nation's waters. 33 U.S.C. section 1251. Section 301(a) of the Act, 33 U.S.C. section 1311(a), forbids the discharge of any pollutant into "navigable waters"⁵ unless permitted by the Army Corps of Engineers pursuant to Section 404. See 33 U.S.C. section 1344.

Section 404(a) authorizes the Secretary of the Army, acting through the Corps, to issue permits for the discharge of dredged or fill material at specified disposal sites. 33 U.S.C. section 1344(a). Criteria known as the Section 404(b) guidelines developed by the EPA, in conjunction with the Corps, govern these permitting decisions. 33 U.S. C. section 1344(b).⁶ Generally, the Corps must employ a "practicable alternative" analysis in determining whether to allow a proposed discharge. 40 C.F.R. section 230.10 provides, in part:

(a) Except as provided under section 404(b)(2) pertaining to navigation 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.

(2) An alternative is practicable if it is available and capable of being done, after taking into account cost, existing technology, and logistics in light of overall project purposes. If it is otherwise a practicable alternative, 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 may be considered.

(3) Where the activity associated with a discharge which is proposed for a special aquatic site defined in Subpart E to include wetlands 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 special aquatic sites are presumed to be available unless clearly demonstrated otherwise. In addition, where a discharge is proposed for a special aquatic site, all practicable alternatives to the proposed discharge which do not involve a discharge into a special aquatic site are presumed to have less adverse impact on the aquatic ecosystem, unless clearly demonstrated otherwise.

40 C.F.R. sections 230.10(a)(2) and (3) (emphasis added).⁷

When the proposed discharge involves a special aquatic site such as wetlands, a more stringent standard is imposed. Indeed, Section 230.10(a)(3) creates a presumption that a practicable alternative exists when the discharge involves wetlands and the activity, here a shopping mall, is not "water dependent." Then the applicant must "clearly demonstrate" that no such alternative does in fact exist.

Section 404(c) grants the Administrator of the EPA authority to prohibit, deny or restrict a Corps-issued permit for the use of a specific site when the Administrator determines that the proposed discharge "will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas." 33 U.S.C. section 1344(c) (emphasis added). An "unacceptable adverse effect" is one which has an "impact on an aquatic or wetland ecosystem which is likely to result in significant degradation of municipal water supplies (including surface or ground water) or significant loss of or damage to fisheries, shellfishing, or wildlife habitat or recreation areas." 40 C.F. R. section 231.2(e) (emphasis added). This "veto" power must be exercised in accordance with established procedure. See 40 C.F.R. Part 231.

2. Procedural History

Pyramid initially became interested in developing a shopping mall in the Attleboro area in September 1983, and focused its attention on an 82-acre site in South Attleboro about one-fourth mile north of the Rhode Island border. Although the project contemplated altering or filling 32.2 acres of 49.6 acres of wetlands, the plan also called for excavating 9.0 acres of uplands (non-wetlands) to create new wetlands and altering an existing 13.3 acres of wetlands to enhance its value for wildlife, fisheries and other quality maintenance.⁸ Another 4.0 acres of existing wetlands would remain undisturbed.⁹ Upon completion of construction, 26 acres of wetlands including marsh areas, red maple swamp and open water would remain. Additionally, Pyramid proposed an off-site mitigation project which would result in the creation of 36 acres of replacement wetlands in an abandoned gravel pit.¹⁰

State Proceedings

In April 1982, the Massachusetts Department of Environmental Quality Engineering (MDEQE) denied state permission to construct a mall at the Sweden's Swamp site to Pyramid's predecessor, the Edward J. DeBartolo Corporation. The DeBartolo Corporation requested an adjudicatory hearing, prior to which Pyramid assumed control of the project. In March 1985, the MDEQE issued a Superseding Order of Conditions which overturned the initial denial and authorized the project.¹¹ This decision was appealed on the ground that the MDEQE had improperly reviewed Pyramid's project under the state's 1978 wetlands protection regulations rather than under the more stringent regulations which had taken effect in April 1983. On September 30, 1986, a state court ruled that the MDEQE's decision to grandfather the project was error and remanded the matter to the MDEQE to determine the rights of the parties under the 1983 regulations. As a consequence of this ruling, the new regulations, which prohibit the filling of more than 5,000 square feet of bordering vegetated wetlands, applied to Pyramid's proposal, see Laurie Carroll v. DEQE, No. 76012, (Mass.Super.Ct. September 30, 1986), and barred its implementation. This decision was reversed on appeal. See Citizens for Responsible Environmental Management v. Attleboro Mall, Inc., 400 Mass. 658, 511 N.E.2d 562 (1987).

Federal Proceedings

In May 1984, the Corps, the Fish and Wildlife Service and the EPA held a meeting with Pyramid wherein Pyramid's proposal was discussed and compared to that of its predecessor, the DeBartolo Corporation. Pyramid requested that the project be authorized under a Corps "nationwide permit," a general permit requiring no application or public review. At that time, the EPA informed Pyramid of the rebuttable presumption that practicable, less environmentally damaging alternatives exist for non-water dependent projects located in wetlands. RD at 3. See 40 C.F.R....