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NEW HANOVER TWP. v. UNITED STATES ARMY CORPS OF EN

June 1, 1992

NEW HANOVER TOWNSHIP, PARADISE WATCHDOGS, and BEVERLY REAM
v.
UNITED STATES ARMY CORPS OF ENGINEERS



The opinion of the court was delivered by: BY THE COURT; EDWARD N. CAHN

 CAHN, J.

 June 1, 1992

 Plaintiffs are asking this court to set aside a determination by the Army Corps of Engineers ("Corps") that the New Hanover Corporation ("NHC") qualifies for a federal permit that would allow the filling of wetlands in order to construct a municipal waste landfill ("Landfill") in New Hanover Township. Plaintiffs allege that the Corps' determination that NHC had satisfied the requirements for a "nationwide" permit 26 ("NWP 26") under section 404 of the Clean Water Act ("CWA"), 33 U.S.C. § 1344, was an abuse of discretion and not in accordance with law, and that the Corps should have required NHC to satisfy the requirements for an "individual" permit pursuant to section 404(b) of the CWA. *fn1"

 Plaintiffs filed a motion for summary judgment to which the Corps responded by filing a crossmotion for summary judgment. At oral argument on April 10, 1992, both sides agreed that this court could determine the legal issues of the case based on the administrative record. Having now heard oral argument and reviewed the administrative record, I find that the Corps did not abuse its discretion.

 I. Background

 NHC intends to construct and operate the Landfill on 57 acres of a 107 acre farm located in New Hanover Township, Montgomery Township, Pennsylvania. They have also purchased an adjacent property, the "Troise Property," as the site of a leachate treatment plant and pipeline. Both sites show evidence of some wetlands present within their borders. Upon learning of NHC's plans in July 1986, the Corps advised NHC that the Corps had jurisdiction over wetlands and that a delineation of Federal jurisdiction was advisable. *fn2" In 1987 the Corps concluded that the Landfill would qualify under various relevant nationwide permits. *fn3" In November 1987, Plaintiffs sued the Corps challenging the wetlands delineation and NHC's eligibility for a NWP 26. In August 1989, the Corps agreed to reexamine its determination pursuant to its Motion for Voluntary Remand. See New Hanover Township v. United States Army Corps of Engineers, No. 87-7262 (E.D. Pa. 1989) (order to remand). The Corps next requested relevant information from NHC, New Hanover Township, the Pennsylvania Department of Environmental Resources ("PADER"), the United States Soil Conservation Service ("SCS"), and the Montgomery County Soil Conservation District. By September 6, 1990, the Corps revised its original jurisdictional determination: It now concluded that .96 acres of jurisdictional wetlands would be lost or substantially modified by filling activities associated with the construction of the landfill. See Letter of Frank Cianfrani to Richard Bodner, September 6, 1990 (hereinafter "Bodner Letter"). Accordingly, it reconfirmed its determination that the Landfill construction would qualify under NWP 26 without an individual permit (assuming NHC received other necessary state approvals). Id.

 Plaintiffs filed this complaint on April 26, 1991. The main thrust of their complaint is that the Corps' determination that only .96 acres of wetlands would be destroyed by the Landfill is erroneous as a matter of law or was the result of an abuse of discretion. Plaintiffs argue that the Landfill will destroy more than one acre of wetlands for the following reasons. (1) They allege that the Corps failed to delineate the wetlands in accordance with the methodology mandated by the Federal Manual for Identifying and Delineating Jurisdictional Wetlands ("Federal Manual"). (2) Plaintiffs argue that the Corps erred by not assessing the impact of the construction of the Landfill upon on-site and off-site wetlands that were not within the borders of the area that NHC planned to fill. (3) Plaintiffs argue that even if the assessment of destroyed wetlands was not in error, the Corps' determination that there were less than 10 acres of wetlands on the site overall was arbitrary and an error of law. Plaintiffs also allege that the Corps erred by not requiring NHC to comply with "Condition No. 9" of the nationwide permit program, which is designed to insure that any wetlands which may possess historic properties must be reviewed by the Advisory Council on Historic Preservation before it may qualify for a nationwide permit.

 II. This Case Is Ripe For Review

 Defendant argues that this court should dismiss Plaintiff's action because it does not present issues that are ripe for judicial review. See Memorandum In Support of United States Army Corps of Engineers' Cross Motion For Summary Judgment and In Opposition To Plaintiffs' Motion For Summary Judgment (hereinafter "Defendant's Memorandum") at 15; See also Abbott Laboratories v. Gardner, 387 U.S. 136, 146-49, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967) (courts should not interfere with an agency decision "until [the] administrative decision has been formalized and its effects felt in a concrete way by the challenging parties"). According to the Third Circuit Court of Appeals, the ripeness doctrine requires consideration of two factors: (1) the fitness of the issues for judicial resolution, and (2) the hardship to the parties of withholding judicial review. See CEC Energy Co. v. Public Service Comm'n., 891 F.2d 1107, 1109 (3d Cir. 1989).

 The Corps argues that the determination announced in its letter of September 6 to NHC is not fit for judicial review because it was not a sufficiently final agency action. See Defendant's Memorandum at 16; see also CEC Energy, 891 F.2d at 1110. The Corps argues that its letter was not sufficiently final because in the same letter the Corps reminded NHC that the project's "authorization [under NWP 7, 12 & 26) is not valid until you receive a 401 Water Quality Certificate from the Pennsylvania Department of Environmental Resources" (Bodner Letter at 1), and as of the time of trial, "NHC has not obtained a valid section 401 water quality certificate from PADER." Defendant's Memorandum at 18. In oral argument, Defendant's counsel cited Suburban Trails, Inc. v. New Jersey Transit Corp., 800 F.2d 361 (3d Cir. 1986) as an analogy to this case. Suburban Trails does not speak to the issue raised by Defendant. In Suburban Trails, the Third Circuit Court of Appeals declared an agency determination to be not yet final because the agency's determination had to be approved by another body which as yet had not spoken. See Suburban Trails, 800 F.2d at 365. Here, the Corps' judgment with regard to NWP 26 is not reviewable by any other body: Although it may be true that an action by another body is a "condition precedent" for the Corps' ultimate permission, that other body has no power to review the Corps' determination of whether NHC has satisfied the conditions necessary for a NWP 26.

 III. The Corps' Delineation of Jurisdictional Wetlands Was Not an Abuse of Discretion Nor an Error As a Matter of Law

 Plaintiffs allege that the Corps' determination that there is no more than six acres of wetlands was either an abuse of discretion or erroneous as a matter of law. See Memorandum of Law In Support Of the Motion Of Plaintiffs For summary Judgment (hereinafter "Plaintiff's Motion For Summary Judgment") at 11. All parties agree that the Corps is required to apply the three criteria outlined in the Federal Manual to identify a certain area as wetlands. Both sides basically agree as well that evidence of one of the three criteria, hydrophytic vegetation, is not available in this case because the sites in question had been used for farming, causing a destruction of the natural habitat. Both sides also agree that in the absence of evidence of the ...


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