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Ninth Circuit Court of Appeals destroys wetland protection

-----Original Message-----
Date: Tuesday, July 28, 1998 5:50 PM
From: cleanwaternt@igc.org
Reply-To: cleanwaternt@igc.org
Organization: Clean Water Network

FR: David E. Ortman
Seattle, WA
206) 789-6136

On 27 July 1998, the Ninth Circuit Court of Appeals, by a 3-0 ruling, overturned a lower court decision upholding the denial by the Seattle District Corps of Engineers of a Section 404 wetland filling permit for a solid waste landfill.   The appeals court said the Corps' legal authority to regulate "the discharge of dredged or fill material into navigable waters" did not include solid waste landfills.   This means that in the Ninth Circuit, solid waste land fills no longer require a Section 404 permit, even where construction of such landfills results in the filling of wetlands.

Section 404 of the Federal Pollution Control Act of 1972 (Clean Water The Ninth Circuit's decision (Resource Investments, Inc. et al. vs. U.S. Corps of Engineers, et al.)  centered, not on the Federal Clean Water Act, but upon an agreement (Memorandum of Agrement on Solid Waste, dated February 28, 1986) brokered by the Reagan Administration in 1986 without public input, allowing the Corps to regulate garbage disposal in wetlands only until final rules were passed by EPA (under Subtitle D of the Resource Conservation and Recovery Act) in 1991.

Unless appealed to the Supreme Court, the environmental community has lost a major handle on solid waste landfills in wetlands.

BACKGROUND

Resource Investments, Inc. (RII) applied for a Section 404 permit on 8 August 1990  for the discharge of fill material into waters of the U.S., including wetlands.   The private solid-waste landfill  was proposed on a 320-acre site in central Pierce County, WA.   It would directly impact 21.6 acres of wetlands.

To the Corps' credit, on 30 September 1996, the Seattle District Corps of Engineers issued a Record of Decision (ROD) denying, with prejudice, the permit application, one of only a handful of such  wetland fill denials issued by the Seattle District Corps in decades.  The denial was based primarily around the availability of alternatives and impacts to groundwater from the project.

On 16 September 1997, Federal District Judge Robert Bryan (US District Court, W. Dist. of WA at Tacoma) issued a lengthy and extraordinary oral ruling upholding the Corps permit denial (Docket No. C96-5920RJB):

Was the decision to deny the permit the result of bias and prejudgment?

"It is easy to see why an applicant for a Clean Water permit that affects wetlands might feel that the deck is stacked against them from the beginning.  And that's for a very simple reason.  The deck IS stacked against them from the beginning.  But it's the law that stacks the deck against them and not the Corps of Engineers." p. 13

". . .It is true that the Corps has a bias, if you will, in looking at such permit applications, but it is not an unfair bias, it is the bias of the law that starts out with discouragement of such permit applications." p. 14

Did the Corps decision to deny the permit violate the National Environmental Policy Act?

No. The Corps can terminate completion of an EIS once the Corps has determined there is enough evidence to issue a denial. p. 15.  (Referring to a separate Summary Judgment Order, C-96-5920RJB, 20 Jan. 1997)

Must the Corps blindly adhere to state and local land use approvals for the project?

"The Corps cannot be required, and is not required, to defer to state and local administrative decisions in carrying out its responsibilities under the Clean Water Act."  p. 16

"Land use or zoning matters do not necessarily include environmental impacts, such as wetland impacts." p. 17.

Was the Corps' denial based on community opposition?

". . .there's no indication in the record that leads to the conclusion that the Corps based its decision on opposition.  The Corps was not arbitrary or capricious in that regard." p. 18.

Was the District Corps required to elevate the permit decision to the division?

"The Corps' decision. . .did not require further submission. . .to the division engineer. . The regulations are, like most federal regulations, they are not particularly well organized or drafted.  You have to look all over the map in order to find what the law is.  And it is not an easy task, but that does not give doubt as to the contents of those regulations
once you find them."   p. 20

Were their practicable alternatives to the proposed land fill project?

". . .these [long-hauling Pierce County's waste to out-of-county landfill sites in eastern Washington and eastern Oregon and constructing a landfill at the Horn Creek site] are viable alternatives.  p. 22

". . .the rule that should be applied here, at least for a public need project like this one, is that it is appropriate for the Corps to consider alternatives available to the public, and/or to the applicant, at any time before the decision so long as there is ample opportunity for notice to the applicant and for investigation of the proposed alternative by the
applicant." p. 27

Were the groundwater determinations made by the Corps in error?

"The Corps found that the project represents an unacceptable risk to public health and safety due to the potential contamination, and that finding is supported by the evidence. . .because the applicant believes a risk is acceptable does not mean that the Corps must analyze the risk in exactly the same way and come to the exact same conclusion.'  p. 38.

Judge Bryon had previously ruled that Subtitle D of the Resource Conservation and Recovery Act did not preempt or implicitly repeal the Corps' authority under Section 404 of the Clean Water Act in the area of municipal solid waste landfills.   This was the key point overturned by the Ninth Circuit.

Inexplicably, in 1997, Judge Bryan also denied motions of the Salvation Army and WA State Senator Marilyn Rasmussen (adjacent landowners), along with the Washington Environmental Council, People for Puget Sound and the Wise Use Movement to file Amicus Briefs in support of the Corps denial of RII's project.