Shoreline Associates v. Marsh, Civ. A. No. M-81-3097.

• Decision Date: 06 January 1983
• Docket Number: Civ. A. No. M-81-3097.
• Citation: 555 F. Supp. 169
• Parties: SHORELINE ASSOCIATES v. John O. MARSH, Jr., et al.
• Court: U.S. District Court — District of Maryland

555 F. Supp. 169

SHORELINE ASSOCIATES v. John O. MARSH, Jr., et al.

Civ. A. No. M-81-3097.

United States District Court, D. Maryland.

January 6, 1983.

Warren K. Rich, Stephen P. Kling, and Niles, Barton & Wilmer, Annapolis, Md., for plaintiff.

Carol E. Dinkins, Asst. Atty. Gen., and Michael W. Neville, Atty., Environmental Defense Section, Land and Natural Resources Division, U.S.Dept. of Justice, Washington, D.C., for defendants.

MEMORANDUM AND ORDER

JAMES R. MILLER, Jr., District Judge.

The plaintiff, Shoreline Associates (Shoreline), seeks judicial review of the decision of the Secretary of the Army, acting through the Chief of the Corps of Engineers (Corps), denying its application for a permit to conduct activities in "navigable waters" of the United States within the meaning of section 10 of the Rivers and Harbors Act of 1899 (RHA), 33 U.S.C. § 403, and section 301 of the Clear Water Act (CWA), 33 U.S.C. § 1311.

Shoreline owns real property bordering Assawoman Bay, north of 94th Street and west of Ocean Highway, in Ocean City, Maryland. It proposes to develop a portion of its real property, including 8.2 acres of tidal wetlands, to accommodate a waterfront townhouse community and a boat storage and launching facility. That the tidal wetland areas in question are subject to federal regulation, specifically to grant of a permit by the Corps, is not disputed.¹

Shoreline claims to be aggrieved because the Corps denied Shoreline a permit to dredge and fill the 8.2 acre area. The essence of Shoreline's claim is that the Corps' decision to deny the permit was arbitrary, capricious, unsupported by substantial evidence, and constituted an abuse of discretion.² Shoreline claims the Corps used inapplicable criteria,³ and "failed adequately to (a) set forth the factual basis for the decision, (b) discuss the pertinent evidence of record, particularly that evidence which contradicts evidence relied upon to deny the application, and (c) develop and explain Defendants' rationale in denying the application."⁴ Shoreline seeks a reversal and remand of the Corps' decision with instructions that the Corps issue the permit or reconsider its decision.⁵

The case is presently before the court on the defendants' motion for summary judgment.⁶ The defendants contend that the case is ripe for judicial review without further evidentiary proceedings and defend the decision of the Corps on the merits, arguing that it was not arbitrary and capricious or an abuse of discretion. The plaintiff has responded to the defendants' motion⁷ and oral argument has been held.

I. Applicable Law

Section 10 of the Rivers and Harbors Act, supra, establishes a permit requirement for activities which take place in "navigable waters" of the United States or which affect navigation on such waters. Section 10 provides in pertinent part:

"It shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of ... any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same."

33 U.S.C. § 403.⁸

The Clear Water Act, supra, formerly known as the Federal Water Pollution Control Act, is also applicable to this suit. The CWA authorizes a regulatory scheme to restore and maintain the "chemical, physical, and biological integrity of the nation's waters," 33 U.S.C. § 1251(a), through, inter alia, a prohibition on the discharge of pollutants to "navigable waters" of the United States, except in compliance with various provisions of the Act. 33 U.S.C. § 1311.

One of the exceptions, contained in section 404 of the CWA, 33 U.S.C. § 1344, authorizes the Corps of Engineers to issue permits for the discharge of materials to navigable waters when issuance of such a permit would serve to achieve the goals of the CWA. The Corps must evaluate applications for such permits through the application of guidelines developed by the Administrator of the Environmental Protection Agency in cooperation with the Secretary of the Army. The guidelines require consideration of the environmental, economic and esthetic efforts of such a proposed permit. 33 U.S.C. § 1343(c). The regulations promulgated under authority of the CWA are found at 40 CFR 230 (1981).

To obtain a permit, an application is submitted to the Corps District Engineer who reviews it for completeness, issues a public notice, prepares an environmental assessment, and determines if a public hearing is necessary. 33 CFR §§ 325.1 & 325.2. The District Engineer, in accordance with the applicable regulations and the record, determines if a permit should issue. 33 CFR § 325.2(a)(6). As part of his decision, the District Engineer is required to prepare findings of fact. Id.

The policies applicable to permit review are contained in 33 CFR 320 (1981). Additionally, the Fish and Wildlife Coordination Act, 16 U.S.C. § 662(a), requires the Corps to consult with the United States Fish and Wildlife Service before granting any permits affecting waters of the United States.

II. Procedural History

On March 10, 1979, Shoreline submitted an application for a permit to fill 10.5 acres of wetlands. On June 29, 1981, the plan was revised to include the filling of only 8.2 acres.⁹ The District Engineer, on June 13, 1979, issued a public notice of the application pursuant to 33 CFR 325.2(a)(2). Numerous objection letters to the proposed project were filed with the Corps¹⁰ by individual citizens and members of conservation groups. Representatives of the Corps, the Environmental Protection Agency, the Fish and Wildlife Service, the National Marine Fisheries Service, and Shoreline, met to discuss the application.¹¹

The Environmental Protection Agency (EPA) filed its recommendation with the Corps on July 2, 1979. It recommended that the permit be denied¹² because development of the wetlands could not be supported under the EPA's guidelines. Similarly, the Fish and Wildlife Service and the National Marine Fisheries Service recommended denial of the application on July 30, 1979¹³ and October 12, 1979,¹⁴ respectively.

On January 5, 1981, the Corps received a copy of the "Opinion and Order" issued by the Maryland Department of Natural Resources Board of Review which granted, in part, the state permit application.¹⁵

Finally, on November 3, 1981, the Corps completed its "Environmental Assessment and Findings of Fact" in which it concluded that issuance of the permit would be contrary to the Corps and EPA guidelines and would not be in the public interest.¹⁶ The application was denied.¹⁷ Shoreline filed the instant action on December 8, 1981.

III. Discussion

A. Judicial Review

Judicial review of the Corps' decision to deny Shoreline's application for a permit is limited to review of the administrative record. See Camp v. Pitts, 411 U.S. 138, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973) (per curiam); Buttrey v. United States, 690 F.2d 1170 (5th Cir.1982) (copy attached to Paper No. 16); United States v. Holcomb, 651 F.2d 231, 236 (4th Cir.1981); Humana of Virginia, Inc. v. Blue Cross of Virginia, 622 F.2d 76, 79 (4th Cir.1980); Gables by the Sea, Inc. v. Lee, 365 F.Supp. 826, 830 (S.D.Fla.1973), aff'd, 498 F.2d 1340 (5th Cir. 1974), cert. denied, 419 U.S. 1105, 95 S.Ct. 775, 42 L.Ed.2d 801 (1975). In Camp v. Pitts, the Court determined that reviewing courts were forbidden from engaging in de novo inquiry on appeal from an agency decision where the administrative proceedings produced a reviewable record. 411 U.S. at 143, 93 S.Ct. at 1244. The Court stated:

"The validity of the agency's action must, therefore, stand or fall on the propriety of that finding, judged, of course, by the appropriate standard of review. If that finding is not sustainable on the administrative record made, then the agency's decision must be vacated and the matter remanded to it for further consideration."

Id.

The present administrative record is adequate for judicial review. It contains contemporaneous findings of fact by the Corps as well as those by the various consulting agencies. It also contains the letters of objection from the public and conservation groups and numerous letters exchanged between the Corps and Shoreline. The decision of the Maryland Department of Resources Board of Review is also included. Most importantly, the District Engineer's sixteen page report, on which the final decision is based, setting forth the findings of fact and environmental assessment of the Corps, is included.

The court having determined that the record is adequate for review, the issue of the proper standard of review remains. Although Shoreline claims in its complaint that the Corps decision was not based on substantial evidence,¹⁸ it has in its memorandum in opposition to the defendants' motion for summary judgment apparently conceded that the appropriate standard of review is whether the Corps decision was arbitrary, capricious or an abuse of discretion.¹⁹ Even without this apparent concession, it is well settled that the standard is that contained in section 10(e)(2)(A) of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Buttrey v. United States, supra; Citizens Against the Refinery's Effects (CARE) v. EPA, 643 F.2d 178, 181-83 (4th Cir.1981); Coalition for Responsible Regional Development v. Coleman, 555 F.2d 398, 399-400 (4th Cir. 1977); Deltona Corp. v. Alexander, 504 F.Supp. 1280, 1284 (1981), aff'd, 682 F.2d 888 (11th Cir.1982). Section 10(e)(2)(A) provides in pertinent part:

"To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall ... hold unlawful and set aside agency

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