Park v. U.S., Civil No. 98-1940(JAG).

• Decision Date: 30 September 2003
• Docket Number: Civil No. 98-1940(JAG).
• Parties: Bahia PARK, S.E., Plaintiff, v. UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

286 F.Supp.2d 201

Bahia PARK, S.E., Plaintiff, v. UNITED STATES of America, et al., Defendants.

Civil No. 98-1940(JAG).

United States District Court, D. Puerto Rico.

September 30, 2003.

COPYRIGHT MATERIAL OMITTED

Francisco A. Besosa, Adsuar, Muniz, Goyco & Besosa, San Juan, PR, for Plaintiff.

Daniel M. Flores, Washington, DC, Isabel Munoz-Acosta, Torre Chardon, San Juan, PR, for Defendants.

OPINION AND ORDER

GARCIA-GREGORY, District Judge.

Pending before the Court are the parties' cross-motions for summary judgment, as well as their opposition and reply briefs. (Docket Nos. 29, 36, 40, 49.) The question for review is whether the United States Army Corps of Engineers' (the "Corps") decision to deny a permit application submitted by plaintiff Bahía Park, S.E. ("Bahía Park") for the proposed development of a medium-income apartment project in Cataño, Puerto Rico, was arbitrary and capricious. The Corps concluded, pursuant to the Clean Water Act ("CWA"), 33 U.S.C. § 1311(a), that the proposed development was not dependent on access to water, that alternatives to the proposed site therefore existed, and that Bahía Park failed to demonstrate clearly that there were practicable alternatives to the proposed project site. On November 30, 2001, the Court heard oral arguments on the motions. The Court has reviewed the record, as well as the parties' thoughtful and thorough submissions. It concludes that the Corps's decision to deny the permit application was not arbitrary and capricious. Accordingly, the Court grants defendants's summary judgment motion and denies Bahía Park's cross-motion.

FACTUAL BACKGROUND¹

Bahia Park, S.E., owns a parcel of land of approximately 13.4 acres located in the Palmas Ward of Cataño, Puerto Rico. A portion of this parcel is located within an area known as "La Cienaga de Las Cucharillas" ("Las Cucharillas"). Las Cucharillas is a 2,900 acres herbaceous and forested marsh that remains one of the largest wetland in the area of San Juan Bay. The EPA has designated the marsh as an "aquatic resource of national importance" and it has been placed on the Priority Wetlands List for Puerto Rico. The marsh is surrounded by a number of commercial and residential projects.

In 1996, Bahia Park began the construction of a 300-unit, middle-income, walk-up residential project on said parcel of land. On February 6, 1996, the Corps issued a cease and desist order to Bahia Park on the grounds that Bahia Park had filled 0.3 acres of wetland on the project site. Bahia Park thereafter submitted a proposed jurisdictional determination (J.D.) to the Corps on February 13, 1996. On March 12, 1996, the Corps reviewed and verified in the field the information submitted by Bahia Park. On March 26, 1996, the Corps accepted the determination, subject to two modifications following the field inspection.

Prior to the 1996 jurisdictional determination by the Corps, there were two previous jurisdictional determinations regarding Bahia Park's property in that area. The 1992 J.D. indicated that wetlands existed on a smaller area than that shown in Bahia Park's 1996 proposed J.D. and the Corps' 1996 approved J.D. The 1992 J.D. by its terms expired after three years, and in July 1995 the Puerto Rico Planning Board had advised that the 1992 J.D. was under-inclusive.

In March of 1996, Bahia Park filed an after-the-fact application with the Corps to allow for the 0.3 acres already filled, and identifying the project and its objectives. The application conceded that the proposed work would include the discharge of fill material onto seven acres of marshland, and also stated that there were no practicable alternatives. The Corps sought public comment on the application, and the EPA, the United States Fish and Wildlife Service, and the Conservation Trust of Puerto Rico all recommended denial of the permit application for a variety of reasons. The Corps gave Bahia Park a summary of the comments, and advised them that the proposed project might not comply with the Clean Water Act Section 404(b)(1) Permit Program Guidelines. In addition, Bahia Park was given an opportunity to respond, which they did on July 16, 1996.

Thereafter, the Corps continued to gather and assess information. Bahia Park responded to the relevant information as requested by the Corps, including the identification of two alternative sites that came to be known as "Alternate Site 1" and "Alternate Site 2".

Subsequently, the Corps denied the permit application for several reasons. The Corps found that the proposed project was not water-dependent, that Alternate Site 1 had not been demonstrated to be a non-practicable alternative site, and that Bahia Park had failed to describe any search for alternative sites beyond those it had already disclosed.

Bahia Park subsequently challenged the Corps' decision through the present action, and alleges that the denial of the permit application was arbitrary and capricious.

STATUTORY AND REGULATORY BACKGROUND

Congress enacted the CWA "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C § 1251(a); see also 40 C.F.R. § 230.1. Section 301 of the CWA makes the discharge of pollutants into navigable waters unlawful, unless such discharge is authorized by permit. See 33 U.S.C. § 1311(a). The Corps issues such permits under section 404 of the CWA. Town of Norfolk v. U.S. Army Corps of Engineers, 968 F.2d 1438, 1445 (1st Cir.1992).

The term "pollutants" is defined broadly and includes dredged or fill material. The term "navigable waters" is similarly all encompassing, covering all "waters of the United States." Id. Wetlands are included in the definition of "waters of the United States." 40 C.F.R. § 230.3(s)(7); see also United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985). Wetlands are defined to include "areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions." 33 C.F.R. § 328.3(b).

Section 404 of the CWA authorizes the Corps to issue or deny permits for the discharge of dredged or fill material. See 33 U.S.C. § 1344(a).

STANDARD OF REVIEW

Rule 56(c) of the Federal Rules of Civil Procedure, sets forth the standard for ruling on summary judgment motions: The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Fed. R.Civ.P. 56(c). The critical question is whether a genuine issue of material fact exists. A genuine issue exists if there is sufficient evidence supporting the claimed factual dispute to require a choice between the parties' differing versions of the truth at trial. Morris v. Government Dev. Bank of Puerto Rico, 27 F.3d 746, 748 (1st Cir. 1994); LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir.1993), cert. denied, 511 U.S. 1018, 114 S.Ct. 1398, 128 L.Ed.2d 72 (1994). A fact is material if it might affect the outcome of the suit under the governing law. Morrissey v. Boston Five Cents Sav. Bank, 54 F.3d 27, 31 (1st Cir. 1995); Maldonando-Denis v. Castillo-Rodríguez, 23 F.3d 576, 581 (1st Cir.1994). On a motion for summary judgment, the court must view all evidence and related inferences in the light most favorable to the nonmoving party. See Springfield Terminal Ry. v. Canadian Pac. Ltd., 133 F.3d 103, 106 (1st Cir.1997). Nonetheless, the court is free to "ignore `conclusory allegations, improbable inferences and unsupported speculation.'" Suárez v. Pueblo International, Inc., 229 F.3d 49, 53 (1st Cir.2000) (citing Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990)).

Summary judgment is particularly appropriate in cases when an agency's decision is based on an administrative record. See, e.g., Preserve Endangered Areas of Cobb's History v. United States Army Corps of Engineers, 87 F.3d 1242, 1246 (11th Cir.1996)("The fact finding capacity of the District Court is ... typically unnecessary [in review of agency action].... The court is to decide, on the basis of the record the agency provides, whether the action passes muster under the appropriate APA standard of review.") See, Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973)("In applying that standard, the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.")

The CWA does not articulate its own standard of review. Therefore, the appropriate scope of review for CWA claims [actions challenging agency action] is the standard set forth in the Administrative Procedure Act. 5 U.S.C. § 706(2)(A); Town of Norfolk v. U.S. Army Corps of Engineers, 968 F.2d 1438, 1445 (1st Cir. 1992). Under that section, the reviewing Court shall hold unlawful and set aside agency action found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); Airport Impact Relief, Inc. v. Wykle, 192 F.3d 197, 202 (1st Cir.1999). The task of a court reviewing agency action under the APA's "arbitrary and capricious" standard, 5 U.S.C. § 706(2)(A), is "to determine whether the [agency] has considered the relevant factors and articulated a rational connection between the facts found and the choice made." Dubois v. United States Dept. of Agriculture, 102 F.3d 1273, 1284 (1st Cir.1996)(quoting Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983))(emphasis in original); (see also Airport Impact Relief, Inc., 192 F.3d at 202; Penobscot Air Servs. Ltd. v. Federal Aviation Admin., 164 F.3d 713, 719 (1st Cir.19...