Industrial Highway Corp. v. Danielson
Decision Date | 06 July 1992 |
Docket Number | Civ. A. No. 91-4367. |
Citation | 796 F. Supp. 121 |
Parties | INDUSTRIAL HIGHWAY CORPORATION, Plaintiff, v. Colonel R.M. DANIELSON, District Engineer, New York District, United States Army Corps of Engineers, Defendants. |
Court | U.S. District Court — District of New Jersey |
Kevin J. Coakley, Thomas B. Considine, Connell, Foley & Geiser, Roseland, N.J., for plaintiff.
Michael Chertoff, U.S. Atty., Michael A. Chagares, Asst. U.S. Atty., Office of the U.S. Atty., Newark, N.J., and Barry M. Hartman, Acting Asst. Atty. Gen., Environment & Natural Resources Div., U.S. Dept. of Justice, Daniel W. Pinkston, Trial Atty., Environmental Defense Section, Washington, D.C., for defendant.
Before the Court is a motion by defendant Colonel R.M. Danielson, District Engineer, New York District, United States Army Corps of Engineers ("Corps"), pursuant to Federal Rule of Civil Procedure 12(b)(1), to dismiss the complaint of plaintiff Industrial Highway Corporation ("Industrial") for lack of subject matter jurisdiction. Industrial instituted this action to challenge the Corps' decision not to issue a notice to proceed under Nationwide Permit 26, published at 33 C.F.R. § 330.5(a)(26). This motion requires resolution of a single legal issue: whether the Corps' decision constitutes "final agency action" reviewable in federal district court under 5 U.S.C. § 704. For the reasons that follow, the Court will grant defendant's motion.
All facts relevant to the disposition of this motion are undisputed. Industrial owns an eight-acre tract in Woodbridge Township, New Jersey, on which it has planned to construct a building that will contain approximately 160,000 square feet of interior space. Industrial claims that to build the structure as planned would require it to, in regulatory terms, "discharge fill" into 2.45 acres of "wetlands".
Exhibit A, Defendant's Brief in Support of Motion to Dismiss.
Exhibit D, Certification of Kevin J. Coakley ("Coakley Certification"). Because it believed that the basis for Seebode's decision was erroneous, Industrial claimed that there was no basis to disallow it to proceed with its plans under Nationwide Permit 26.
Exhibit F, Coakley Certification.
In September 1991, Industrial submitted additional documentation needed to complete its individual permit application. As of April 23, 1992, the individual permit application had been neither approved nor rejected. Coakley Certification, ¶ 36.
Industrial filed the complaint in this action on October 8, 1991, alleging the existence of subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1346. The complaint alleges that "Defendant's suspension of Nationwide Permit 26 as it relates to the Property was arbitrary and unreasonable and without basis in either fact or in law." Complaint ¶ 15. The prayer for relief "demands judgment declaring that Defendant erred in refusing to permit Plaintiff to utilize Nationwide Permit 26 and ordering Defendant to confirm to Plaintiff that work on the Property may proceed under said Nationwide Permit 26." Complaint at page 6.
The CWA is a comprehensive statute enacted "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." CWA § 101(a), codified at 33 U.S.C. § 1251(a). As part of the comprehensive scheme, CWA § 404(a), codified at 33 U.S.C. § 1344(a), authorizes the Secretary of the Army, acting through the Chief of Engineers, to issue permits for "discharges of dredged or fill material into the navigable waters at specified disposal sites." 33 U.S.C. § 1344(a); see also 33 U.S.C. § 1344(d) (defining "Secretary").2 An unpermitted discharge of "any pollutant" into "navigable waters" constitutes a violation of CWA § 301(a), codified at 33 U.S.C. § 1311(a); United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 123, 106 S.Ct. 455, 457, 88 L.Ed.2d 419 (1985). "Pollutant" is broadly defined at 33 U.S.C. § 1362(6) to include, inter alia, "dredged spoil", "rock" and "sand." "Navigable waters" are defined broadly by the CWA to include all "waters of the United States". CWA § 502(7), codified at 33 U.S.C. § 1362(7). The United States Environmental Protection Agency has broadly construed the term "waters of the United States" to include most "wetlands." 33 C.F.R. § 328.3(a). Industrial does not dispute that the lands in question in this action are "wetlands" subject to the requirements of the CWA.3
Subject to certain restrictions in § 1344(c) that do not apply here, decisions by the Corps to grant or deny permits authorized under § 1344(a) are to be made "through the application of guidelines developed by the Administrator of the Environmental Protection Agency ("EPA"), in conjunction with the Secretary of the Army...." 33 U.S.C. § 1344(b)(1). The EPA guidelines are published at 40 C.F.R. Part 230. The Corps' regulations that govern discharge permits under § 1344 are published at 33 C.F.R. Parts 320 through 330. Discharge permits may be issued as "individual permits", or as "general permits". 33 C.F.R. § 320.2(c); 33 U.S.C. § 1344(e)(1) (authorizing general permits).
33 C.F.R. § 323.2(g). The procedures for obtaining an individual permit are set forth in 33 C.F.R. Part 325, and include submission of site-specific documentation, notice to the public, opportunity for public comment and a hearing, and a formal written determination by the Corps to grant or deny the permit, which must be published.
33 C.F.R. § 323.2(h); see also 33 U.S.C. § 1344(e)(1). A number of general permits have been issued by the Corps on a nationwide basis, and are published at 33 C.F.R. § 330.5(a). Nationwide permits are "designed to allow certain activities to occur with little, if any delay or paperwork." 33 C.F.R. § 330.1. Prior to...
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