O'CONNOR v. Corps of Engineers, US Army

• Decision Date: 30 June 1992
• Docket Number: Civ. No. H91-172.
• Citation: 801 F. Supp. 185
• Parties: Robert O'CONNOR, Plaintiff, v. CORPS OF ENGINEERS, UNITED STATES ARMY, Michael P.W. Stone, Secretary of the Army, General Henry T. Hatch, Chief Engineer, and Gary R. Mannesto, Chief, Regulatory Functions Branch of Detroit District of Engineers, Defendants.
• Court: U.S. District Court — Northern District of Indiana

801 F. Supp. 185

Robert O'CONNOR, Plaintiff, v. CORPS OF ENGINEERS, UNITED STATES ARMY, Michael P.W. Stone, Secretary of the Army, General Henry T. Hatch, Chief Engineer, and Gary R. Mannesto, Chief, Regulatory Functions Branch of Detroit District of Engineers, Defendants.

Civ. No. H91-172.

United States District Court, N.D.Indiana, Hammond Division.

June 30, 1992.

James T. Harrington, Charles W. Wesselhoft, Darren J. Hunter, Ross & Hardies, Chicago, Ill., David Ranich, East Chicago, Ind., for plaintiff.

Orest Szewciw, Asst. U.S. Atty., Dyer, Ind., Alan D. Greenberg, Rebecca A. Lloyd, Trial Attys., Environmental Defense Section, Environmental & Natural Resources Div., U.S. Dept. of Justice, Washington, D.C., for defendants.

ORDER

MOODY, District Judge.

This matter is before the court on the parties' cross-Motions for Summary Judgment, filed January 30, 1992, and March 23, 1992. Both motions concern plaintiff's administrative appeal of several actions taken by the United States Army Corps of Engineers ("Corps") with regard to the fill of .41 acres of wetland on plaintiff's property. First, the Corps required plaintiff to apply for an after-the-fact, individual permit for the fill of the .41 acres of wetland; the Corps refused to consider plaintiff's development project under what is called the nationwide permit program. Then, on October 24, 1990, the Corps denied plaintiff's application for an individual permit and issued a Restoration Order requiring plaintiff to return the acreage to its original condition.

Defendants ask the court to uphold all of the actions taken by the Corps. Defendants assert that the Corps properly exercised its statutory authority, and that, based on the administrative record, the Corps acted reasonably when it denied plaintiff an individual permit and issued the Restoration Order. Plaintiff, on the other hand, asks the court to (1) reverse the Corps' decision to deny plaintiff an individual permit, (2) declare that plaintiff is entitled to proceed with his development project under either a nationwide or individual permit, and (3) enjoin the Corps from enforcing its Restoration Order. Plaintiff argues that the Corps acted both outside of its statutory authority when it refused to treat plaintiff's development project under the nationwide permit program and arbitrarily and capriciously when it denied plaintiff an individual permit. Plaintiff further argues that the Corps violated his constitutional right to due process when the Corps, without notice or hearing, decided to review plaintiff's development project under the individual permit program as opposed to the nationwide permit program. Finally, plaintiff claims that the Corps engaged in an unconstitutional taking when it denied him an individual permit and issued the Restoration Order.

For the following reasons, the court GRANTS defendant's Motion for Summary Judgment, DENIES plaintiff's Cross-Motion for Summary Judgment, AFFIRMS the Corps' decision to deny plaintiff an individual permit for the fill of .41 acres of wetland and UPHOLDS the Corps' Restoration Order of October 24, 1990.

The undisputed facts:

Plaintiff owns approximately seven and one-half acres of land on Sagauny Lake in LaPorte County, Indiana, four acres of which is wetland.¹ In May of 1989, plaintiff began filling a portion of the wetland for the purpose of developing a jogging track, tennis court and swimming pool. R. 99 and 144. These recreational facilities were part of a larger development project which also included the construction of a new house, parking lot, lawn, septic tank and drainage field. R. 99. Apparently, as early as August of 1988, plaintiff sought advise from the Corps as to whether a permit would be necessary for the construction project. R. 6. At that time, the Corps concluded that a permit would not be necessary for the work proposed, because, according to the proposal, the excavated material was to be placed upland and not in the wetland. R. 21. The Corps, though, informed plaintiff that "any deviation from the attached plans without prior approval may invalidate this determination of no permit required." R. 21.

In May of 1989, the Corps became aware that plaintiff was in fact filling portions of the wetland on his lake-front property, and by letter, the Corps ordered plaintiff to stop such activity until the Corps determined whether plaintiff's actions violated section 404 of the Clean Water Act, 33 U.S.C. § 1344. R. 26. A Corps engineer then inspected the site and found that plaintiff had in fact placed 1,540 cubic yards of fill in the wetlands (.41 acres worth). R. 71. The inspector concluded that there was no potential need for initial corrective or remedial measures, but he did find that the fill would "directly affect the water quality of Sagauny Lake." R. 71-72. Based on the inspector's report, the Corps determined that a 404 violation had occurred, R. 93, and on July 13, 1989, the Corps informed plaintiff of its conclusion.

Plaintiff then requested that the Corps accept plaintiff's application for an after-the-fact permit pursuant to the Corps' nationwide permit program, specifically a nationwide 26 permit, and the Corps agreed. R. 99, 102 and 166. The application stated that, aside from the .41 acres of wetland already filled, plaintiff intended to fill an additional .60 acres of wetland. R. 146. Upon a review of the application, the Corps determined that plaintiff should be required to apply for an individual permit, based on the Corps' finding that approximately six acres of wetland and Sagauny Lake would be adversely affected by plaintiff's proposed project. R. 153 and 156. After being advised of the Corps's conclusions, plaintiff submitted a revised application for a nationwide 26 permit, in which plaintiff scaled back his proposal to less than one acre of fill, .71 acres in all. R. 167.

The Corps, though, continued to insist on an individual permit application from plaintiff; the Corps concluded that even the existing fill of .41 acres required an individual permit based on its potentially adverse affect on the adjacent wetlands and sixty-five acre lake. R. 176, 177 and 181. Plaintiff requested an explanation for the Corps decision, R. 180, and, on March 3, 1990, the Corps complied with plaintiff's request. By letter, the Corps explained that, "based on the information collected, it was the Corps' determination that projects such as this viewed cumulatively may have more than minimal adverse effects on the aquatic environment." R. 181. The "information" to which the Corps referred was the fact that Sagauny Lake is a "unique water-body with exceptional water quality," surrounded by wetlands that "provide important contributions to that water quality." R. 181. The Corps further explained that, up until that time, no formal decision had been made on whether plaintiff's project may proceed under a nationwide 26 permit, and that, now, the Corps determined that "important issues would be best addressed through the individual permit process." R. 181.

The Corps then proceeded to process plaintiff's application through the individual permit process. The Corps issued a public notice of the application and gave plaintiff an opportunity to respond to any objections received. In opposition to plaintiff's project, the Corps received 136 letters from concerned residents, as well as objections from the Environmental Protection Agency ("EPA"), the United States Department of the Interior, Fish and Wildlife Service, the Indiana Department of Environmental Management, the Indiana Department of Natural Resources and the LaPorte County Health Department. By letter, dated June 26, 1990, the Indiana Department of Environmental Management informed the Corps that it had denied state water quality certification for plaintiff's project. R. 320-321. On that same day, the Corps wrote to plaintiff asking him to respond to these objections, emphasizing the need for plaintiff to address practicable alternatives that might exist. R. 627.

When plaintiff failed to respond, the Corps assumed practicable alternatives existed, and, on October 24, 1990, the Corps denied plaintiff an individual permit as contrary to the public interest and issued a Restoration Order. R. 677 and 678. Plaintiff then requested that the Corps stay its Restoration Order and reopen plaintiff's permit application so as to allow him to submit additional information and to respond to the public's objections. The Corps agreed, though it informed plaintiff that it would be very unlikely that the Corps would reverse its decision to deny plaintiff an individual permit. R. 703-705. Plaintiff submitted a revised application, this time scaling his project back even more; plaintiff would fill no more than the .41 acres of wetland already filled. R. 709.

The Corps then sent out a second public notice, and again, the Corps received objections from the EPA, the United States Department of Interior, Fish and Wildlife Service, the Indiana Department of Natural Resources and the Indiana Department of Environmental Management. Each of these agencies claimed that even plaintiff's scaled back project would adversely affect the surrounding aquatic resources. The agencies also found that plaintiff had not adequately addressed practicable alternatives. Finally, the Indiana Department of Environmental Management denied water quality certification for plaintiff's revised project. The Corps agreed with the other agencies that the .41 acres of fill would adversely impact the "unique waterbody of Sagauny Lake" and that "the detriments of the project overwhelmingly outweigh the benefits that will accrue to plaintiff and the overall public interest." R. 773. The Corps further found that plaintiff had failed to address adequately practicable alternatives. R. 771-772. On April 25, 1991, the Corps denied plaintiff an individual permit for his revised project and reinstated its Restoration Order. R....