Reichelt v. US Army Corps of Engineers

• Court: U.S. District Court — Northern District of Indiana
• Writing for the Court: RODOVICH, United States Magistrate
• Citation: Reichelt v. US Army Corps of Engineers, 923 F. Supp. 1090 (N.D. Ind. 1996)
• Decision Date: 14 February 1996
• Docket Number: No. 2:93 cv 332.,2:93 cv 332.
• Parties: Walter G. REICHELT, Barbara J. Reichelt, Robert J. Delco and Jeanne M. Delco, Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS and Indiana Department of Environmental Management, Defendants.

923 F. Supp. 1090

Walter G. REICHELT, Barbara J. Reichelt, Robert J. Delco and Jeanne M. Delco, Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS and Indiana Department of Environmental Management, Defendants.

No. 2:93 cv 332.

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

February 14, 1996.

COPYRIGHT MATERIAL OMITTED

Michael L. Muenich, Highland, IN, for Plaintiffs.

Timothy Burns, Natalie Duval, U.S. Dept. of Justice, Environmental Defense Section, Washington, DC, for EPA, Army Corps of Engineers.

Myra Spicker, Deputy Attorney General, Indianapolis, IN, for IDEM.

ORDER

RODOVICH, United States Magistrate Judge.

This matter is before the court on several motions. The plaintiffs, Walter G. Reichelt, Barbara J. Reichelt, Robert J. Delco, and Jeanne M. Delco, filed a Motion for Summary Judgment on November 3, 1994. The defendant, the United States Army Corps of Engineers, filed a Cross Motion for Summary Judgment on December 19, 1994. The defendant, the Indiana Department of Environmental Management, filed a Cross Motion for Summary Judgment on January 13, 1995. For the reasons set forth below, the plaintiffs' motion is DENIED, the United States Army Corps of Engineers' motion is GRANTED, and the Indiana Department of Environmental Management's motion is DENIED AS MOOT.

Background

The property at issue in this case comprises approximately 18 acres of land located in Schererville, Indiana ("Site"). The plaintiffs began work at the Site in 1987, and by the summer of 1989, they had completed a road on the Site. During that summer, the plaintiffs hired a soil specialist. The specialist submitted his study, without reference to the identity of the property, to the United States Army Corps of Engineers ("Corps"). The Corps did not become aware of the plaintiffs' project until the Indiana Department of Environmental Management ("IDEM") notified the Corps of a possible violation of the Clean Water Act ("CWA"), 33 U.S.C. §§ 1251-1387, on November 3, 1989.

When the Corps visited the Site on November 7, 1989, it discovered that the Site had been cleared, graded, ditched, and that over 28,000 cubic yards of fill material had been dumped onto more than five acres of wetlands. The Corps determined that the Site is a wetland which drains an area of approximately 6.43 square miles and is connected to a drainage channel which flows into the Little Calumet River.

The Corps notified the plaintiffs of their CWA violations in a letter dated November 22, 1989. On November 28, 1989, the plaintiffs requested an after-the-fact ("ATF") application from the Corps. The Corps decided that it would accept the ATF application and agreed to a 30 day extension for the plaintiffs to complete the application. The application that eventually was filed on January 16, 1991, contended that the discharges were permitted by nationwide permit number 26 ("NWP 26"). The application was deficient, so the Corps requested that the plaintiffs correct the problems. In addition, the Corps decided that because the proposal for discharge of fill material was in a wetland area greater than ten acres, a nationwide permit could not be granted and that the Corps would review the ATF application under the individual permit processing procedures when the application was complete. The Corps indicates, and the plaintiffs do not deny, that the plaintiffs continued to dump material on the Site and, despite requests from the Corps, did not stabilize the existing fill. (CAR Tabs 16, 24, 25, 27).

The ATF application was completed on April 9, 1992, and the Corps issued the required public notice. The Corps received many comments opposing the application and one comment in favor of it. In addition, IDEM denied water-quality certification for the application, stating that the mitigation plan attached to the application was inadequate. Nevertheless, the Corps continued to process the plaintiffs' application.

The Corps issued an Environmental Impact Assessment and a 404(b)(1) Compliance Evaluation on September 23, 1993. In this report, the Corps identified several adverse environmental impacts of the plaintiffs' project. The Corps also noted that the project did not comply with the 404(b)(1) Guidelines because it was not a water-dependent activity and practical alternatives to the project existed. Consequently, the Corps denied the ATF application and issued a restoration order.

The plaintiffs contend that they have satisfied the requirements of NWP 26 and, therefore, the Corps wrongfully denied them a permit. Also, the plaintiffs claim that IDEM violated their due process rights by failing to comply with the Administrative Adjudication Act, IC 4-21.5-2-1 et. seq., when IDEM denied the water quality certification. Finally, the plaintiffs argue that the Corps has waived any objections to the plaintiffs' failure to provide advance notice of any discharges. The defendants claim that the plaintiffs do not satisfy the criteria set forth in NWP 26. They contend that the plaintiffs have not challenged the denial of the individual permit and, thus, the decision should be upheld.

Discussion

Standard of Review

Judicial review of the Corps' action is pursuant to the Administrative Procedure Act, 5 U.S.C. §§ 701-706. Federal courts must uphold an agency decision unless the decision is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. § 706(2)(A); Cowherd v. United States Department of Housing and Urban Development, 827 F.2d 40, 42 (7th Cir.1987); and Frisby v. United States Department of Housing and Urban Development, 755 F.2d 1052, 1055 (3rd Cir.1985). This standard of review is highly deferential. O'Connor v. Corps of Engineers, U.S. Army, 801 F.Supp. 185, 189 (N.D.Ind.1992); and Salt Pond Associates v. Army Corps of Engineers, 38 ERC 2098, 2104, 1993 WL 738478 (Del.1993). The Supreme Court has noted:

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, Incorporated v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823-24, 28 L.Ed.2d 136 (1971)

In other words, because this is an appeal of an administrative decision, the proper inquiry is:

(1) Did the Corps reasonably interpret its enabling statute, which is § 404 of the Clean Water Act, 33 U.S.C. § 1344? and

(2) Did the Corps rationally apply this interpretation to the facts of this case?

O'Connor, 801 F.Supp. at 189

See also Bersani v. United States Environmental Protection Agency, 674 F.Supp. 405, 412 (N.D.N.Y.1987).

Substantial deference also is given to the Corps' interpretation and application of the CWA. Chevron, U.S.A., Incorporated v. Natural Resources Defense, 467 U.S. 837, 844, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984). As long as the Corps' interpretations and applications of Section 404 and its accompanying regulations are reasonable, they will be upheld. Chevron, 467 U.S. at 845, 104 S.Ct. at 2783.

Nationwide Permit Number 26

The CWA is designed "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). The statute prohibits the discharge of dredge or fill material into United States waters without permission from the Corps. Hoffman Group, Incorporated v. Environmental Protection Agency, 902 F.2d 567, 568 (7th Cir.1990). The Corps may authorize discharges of pollutants under specified conditions pursuant to Section 404 of the CWA. 33 U.S.C. § 1344. Individuals who discharge dredge or fill material without permission may request that the Corps accept an ATF permit application. 33 C.F.R. § 326.3(e). Whether the Corps will grant a permit depends upon "the probable impacts, including cumulative impacts, of the proposed activity and its intended use on the public interest." 33 C.F.R. § 320.4(a)(1).

The Corps must balance the "benefits which reasonably may be expected to accrue from the proposal ... against the reasonably foreseeable detriments." 33 C.F.R. § 320.4(a). Factors that may be relevant include:

Conservation, economics, aesthetics, general environmental concerns, wetlands, historic properties, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shore erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, mineral needs, considerations of property ownership and, in general, the needs and welfare of the people.

33 C.F.R. § 320.4(a)(1)

Where a dredge-and-fill permit application does not concern a water-dependent project, the Corps must assume that practicable alternatives exist unless the applicant "clearly demonstrates otherwise." 40 C.F.R. § 230.10(a)(3). This is so because "unnecessary alteration or destruction of wetlands should be discouraged as contrary to the public interest." 33 C.F.R. § 320.4(b)(1). In addition, the Corps cannot issue a 404 permit unless the applicant has received state certification that the proposed project will comply with water quality standards. 33 U.S.C. § 1341(a); 33 C.F.R. § 320.4(j)(1); and Arkansas v. Oklahoma, 503 U.S. 91, 103, 112 S.Ct. 1046, 1055, 117 L.Ed.2d 239 (1992).

The CWA provides that the Corps can issue general 404 permits on a state, regional or nationwide basis under certain circumstances. 33 U.S.C. § 1344(e). The plaintiffs sought the Corps' approval of their filling of the wetlands after-the-fact under a nationwide permit, specifically NWP 26. NWP 26 covers the discharge of material into United States waters that either are above the headwaters or are isolated waters, provided that the discharges cause the loss or substantial adverse modification of 1 to 10 acres of such waters,...