Resource Investments, Inc. v. U.S. Army Corps of Engineers

• Decision Date: 27 July 1998
• Docket Number: No. 97-35934,97-35934
• Parties: , 28 Envtl. L. Rep. 21,407, 98 Cal. Daily Op. Serv. 5781, 98 Daily Journal D.A.R. 8053 RESOURCE INVESTMENTS, INC. a Washington corporation; Land Recovery, Inc., a Washington corporation, Plaintiffs-Appellants, v. U.S. ARMY CORPS OF ENGINEERS; James D. Green, Project Manager, U.S. Army Corps of Engineers; Donald T. Wynn, Colonel, District Engineer, U.S. Army Corps of Engineers; Bartholomew B. Bohn, II, Colonel, Acting Division Engineer, U.S. Army Corps of Engineers; Russell L. Fuhrman, Major General, Director of Civil Works, U.S. Army Corps of Engineers; Joe N. Ballard, Lt. General, Acting Chief of Engineers, U.S. Army Corps of Engineers; H. Martin Lancaster, Assistant Secretary of the Army for Civil Works; Togo D. West, Jr., Secretary of the Army, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1162

151 F.3d 1162

47 ERC 1065, 28 Envtl. L. Rep. 21,407,

98 Cal. Daily Op. Serv. 5781,

98 Daily Journal D.A.R. 8053

RESOURCE INVESTMENTS, INC. a Washington corporation; Land Recovery, Inc., a Washington corporation Plaintiffs-Appellants, v. U.S. ARMY CORPS OF ENGINEERS; James D. Green, Project Manager, U.S. Army Corps of Engineers; Donald T. Wynn Colonel, District Engineer, U.S. Army Corps of Engineers Bartholomew B. Bohn, II, Colonel, Acting Division Engineer U.S. Army Corps of Engineers; Russell L. Fuhrman, Major General, Director of Civil Works, U.S. Army Corps of Engineers; Joe N. Ballard, Lt. General, Acting Chief of Engineers, U.S. Army Corps of Engineers; H. Martin Lancaster, Assistant Secretary of the Army for Civil Works; Togo D. West, Jr., Secretary of the Army, Defendants-Appellees.

No. 97-35934.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 4, 1998.

Decided July 27, 1998.

Daniel D. Syrdal, Heller, Ehrman, White and McAuliffe, Seattle, Washington, for plaintiffs-appellants.

John A. Bryson, United States Department of Justice, Washington, DC, for defendants-appellees.

Rodney L. Brown, Jr., Marten & Brown, Seattle, WA, for amici-curiae, Pierce County, WA, and the National Association of Counties.

Lawrence R. Liebesman, Carriellen, Crowell, Linowes and Blocher, Silver Springs, Maryland, for amici curiae Nationwide Public Projects Coalition, Cobb County-Marietta (GA) Water Authority, West San Bernardino County (CA) Water District, Helix (CA) Water District, and Washington State Refuse and Recycling Association.

Gary J. Smith, Beveridge & Diamond, Washington, DC, for amici curiae National Association of Home Builders, National Association of Realtors and National Association of Industries and Office Parks.

Appeal from the United States District Court for the Western District of Washington; Robert J. Bryan, District Judge, Presiding. D.C. No. CV-96-05920-RJB.

Before: THOMPSON and TASHIMA, Circuit Judges, and STAGG, District Judge. ^*

DAVID R. THOMPSON, Circuit Judge:

OVERVIEW

This case presents the question whether section 404 of the Clean Water Act (CWA), 33 U.S.C. § 1344, authorizes the United States Army Corps of Engineers (Corps) to require a landowner to obtain a dredge and fill permit from the Corps before constructing a municipal solid waste landfill on a wetlands site. We hold that the construction of a municipal solid waste landfill on a wetlands site is regulated by the Environmental Protection Agency (EPA) or states with solid waste permit programs approved by the EPA under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6941-6949a, not by the Corps under section 404 of the CWA. Accordingly, we reverse the district court's order upholding the Corps' decision to deny a permit and remand with instructions to vacate that decision.

FACTS

Resource Investments, Inc. (RII), a private company, seeks to construct and operate a municipal solid waste landfill on a 320-acre site in Pierce County, Washington. The landfill would accept mixed municipal solid waste (residential, commercial, construction and demolition refuse and tires) generated in Pierce County, and have a net capacity of 19.7 million tons. The landfill would occupy 168 acres of the 320-acre site and require clearing, excavating, filling, and grading approximately 21.6 acres of the site's 70 acres of wetlands. The affected wetlands include 13.7 acres of forested wetlands, 6.1 acres of scrub-shrub wetlands, and 1.8 acres of emergent meadow wetlands. RII plans to mitigate the wetlands loss by creating, preserving, restoring and enhancing wetlands on a dedicated 85-acre wetlands mitigation area on the site.

RII's landfill would consist of eight 21-acre cells. The base of each cell would be excavated to form proper grades for the construction of a leak detection and collection system that would underlie each cell. The leak detection and collection system would include a gravel collection layer, followed by a two-foot layer of low-permeability soil and a synthetic liner to catch any leachate created by rainwater or other liquids passing through the municipal solid waste. Municipal solid waste would be placed on top of this liner system, followed by a cover system.

The proposed landfill is in compliance with the Tacoma-Pierce County Solid Waste Management Plan (County Waste Plan), which was prepared pursuant to Wash. Rev.Code § 70.95.080 (requiring each county in Washington to prepare a comprehensive solid waste management plan that identifies and considers ways to dispose of solid waste generated within its jurisdiction). The State of Washington's solid waste management plan was developed pursuant to the RCRA, 42 U.S.C. § 6943, which requires each state to develop a plan for the safe and environmentally-sound disposal of solid waste within its jurisdiction.

The County Waste Plan recognizes that Pierce County's only open landfill, Hidden Valley Landfill (operated by Land Recovery, Inc., an affiliated company of RII), is near capacity and was scheduled for closure in 1996. In order to extend the closure date, Pierce County has since 1993 long-hauled 40 percent of its solid waste via truck and rail to an out-of-county landfill in Eastern Washington. The County Waste Plan recommends an in-county solid waste landfill as the primary means for the disposal of waste that cannot be recycled, and encourages private sector efforts to deal with the county's landfill needs. ¹ The County Waste Plan also recommends the use of long-hauling solid waste by rail to out-of-county landfills in Eastern Washington or Eastern Oregon if an in-county landfill cannot be completed. The County Waste Plan provides that a landfill site will be required in any solid waste disposal strategy that Pierce County chooses.

After buying the majority of the 320-acre site in 1988, RII applied for permits to construct the landfill. It received a conditional use permit from Pierce County and a solid waste handling permit from the Tacoma-Pierce County Health Department. In order to obtain the solid waste handling permit, RII was required to successfully demonstrate to the Tacoma-Pierce County Health Department that: (1) a practicable alternative to the proposed landfill that did not involve wetlands was not available; (2) the construction and operation of the landfill would not cause or contribute to violations of any applicable state water quality standard, violate any applicable toxic effluent standard or prohibition, jeopardize the continued existence of endangered or threatened species or critical habitats, or violate any requirement for the protection of a marine sanctuary; (3) the landfill would not cause or contribute to significant degradation of wetlands; and (4) steps had been taken to achieve no net loss of wetlands by first avoiding impacts to wetlands to the maximum extent practicable, then minimizing unavoidable impacts to the maximum extent practicable, and finally offsetting remaining unavoidable wetlands impacts through all appropriate and practicable compensatory mitigation actions. See Wash. Admin. Code § 173-351-130(4)(a).

RII also filed an application on August 8, 1990, with the Corps for a permit under section 404 of the CWA to discharge "dredged or fill material" into the navigable waters of the United States. Section 404 prohibits the discharge of "dredged or fill material" into the navigable waters of the United States, including wetlands, without a permit from the Secretary of the Army, acting through the Corps. See 33 U.S.C. § 1344.

After an extensive review, the Corps denied RII's application, on the grounds that RII had failed to demonstrate the unavailability of practicable alternatives for waste disposal that were less environmentally damaging, such as long-hauling Pierce County's solid waste by rail to out-of-county landfills, and that the proposed landfill was not in the public interest because it would cause significant degradation of wetlands and posed an unacceptable risk of groundwater contamination.

The district court affirmed the Corps' denial of RII's application for a permit on the ground that the Corps' decision was not arbitrary, capricious, contrary to law, or an abuse of discretion. This appeal followed.

DISCUSSION

RII contends that the Corps lacked authority under section 404 of the CWA to require a dredge and fill permit because, under RCRA, 42 U.S.C. §§ 6941-6949a, the regulation of municipal solid waste disposal, including the disposal of municipal solid waste in landfills constructed on wetlands areas, lies solely with the EPA or states with solid waste permit programs approved by the EPA.

The resolution of this issue requires an interpretation of the CWA, 33 U.S.C. §§ 1341-1345, and the RCRA, 42 U.S.C. §§ 6941-6949a. We review issues of statutory interpretation de novo. See United States v. Trident Seafoods Corp., 92 F.3d 855, 862 (9th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 944, 136 L.Ed.2d 833 (1997). "We must read the statutes to give effect to each if we can do so while preserving their sense and purpose." Watt v. Alaska, 451 U.S. 259, 267, 101 S.Ct. 1673, 68 L.Ed.2d 80 (1981). "[W]hen two statutes are capable of co-existence, it is the duty of the courts ... to regard each as effective." Radzanower v. Touche Ross & Co., 426 U.S. 148, 155, 96 S.Ct. 1989, 48 L.Ed.2d 540 (1976) (quoting Morton v. Mancari, 417 U.S. 535, 551, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974)). Although an agency's construction of a statute it is charged with enforcing is normally entitled to deference if it is reasonable and not in conflict with the expressed intent of Congress, see United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 131, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985), this deference does not extend to "agency litigating positions that are wholly unsupported by regulations, rulings, or administrative practice." Ashoff v. City of Ukiah, 130 F.3d 409, 411 (9th Cir....