Vetoing wetland permits under section 404(c) of the Clean Water Act: a history of inter-federal agency controversy and reform.

Author:Blumm, Michael C.
Position:III. The Initial Eleven Section 404(c - 1986
  1. The Attleboro Mall-Upholding the Presumption Against Non-Water Dependent Uses in Sweedens Swamp (1986)

    In 1986, EPA issued its fifth section 404(c) veto, prohibiting the fill of thirty-two acres of wetlands to build a mall in Attleboro Massachusetts, the agency's first use of 404(c) outside of the South. (216) The proposed site was part of Sweedens Swamp, a 49.5-acre inland, forested wetland with seasonal flooding. (217) The surrounding land had been extensively developed for commercial and residential purposes. Consequently, Sweedens Swamp provided much of the area's last remaining habitat for bird, small mammal, and amphibian species, (218) and the Corps, EPA, and FWS all defined the swamp as excellent wildlife habitat. (219) Sweedens Swamp also provided natural flood storage, groundwater discharge, water quality renovation, and food-chain production, (220) EPA concluded that although the swamp was not "a unique wetland [or] habitat for endangered species," it warranted protection because of its value as a healthy functioning wetland. (221)

    Pyramid, the mall developer, applied for a 404 permit to fill 32 acres with the onsite mitigation from creating onsite artificial wetlands on twenty-two acres by excavating thirteen acres of preexisting wetlands and nine upland acres. (222) In 1984, EPA and the Corps both assessed the value of the site's wildlife habitat, EPA emphasized that the section 404(b)(1) guidelines presumed the existence of a practicable alternative for a non-water dependent use like a shopping mall, (223) The Corps also considered practicable alternatives and identified a second site as feasible. (224)

    In 1985, Pyramid changed its permit application to include offsite mitigation by creating 36 acres of offsite artificial wetlands, (225) but the Division Engineer recommended permit denial because of the loss of the wildlife habitat. (226) However, the Corps headquarters in Washington reviewed the Division Engineer's recommendation, determined that the proposed mitigation was adequate and that the project would have the "least adverse effect on the aquatic environment," and instructed the District Engineer to prepare a notice of intent to issue the permit. (227) The division conditioned the proposed permit--which characterized the site as excellent habitat for wildlife--on the success of onsite and offsite mitigation. (228) EPA responded by issuing a section 404(c) action based on (l) unacceptable environmental effects, (2) the availability of a feasible alternative site, and (3) an inadequate mitigation plan. (229)

    EPA concluded that although mitigation can reduce adverse environmental effects, the 404(b)(1) guidelines do not allow the Corps to issue fill permits conditioned on mitigation in the form of artificially created wetlands to compensate for the loss of natural wetlands when available practicable, less damaging alternatives exist. (230) The agency cited risks associated with replacing a natural wetland with man-made wetlands, and the possibility that the artificial wetland would not serve the same ecological functions. (231) Consequently, EPA vetoed the Corps permit, blocking construction of Attleboro Mall in Sweedens Swamp. (232)

    Pyramid challenged EPA's veto in the District Court of Massachusetts, claiming that the Regional Administrator failed to make a determination within the 30 days established by EPA regulations. (233) The court dismissed the complaint on the ground that the statute did not establish rigid deadlines. (234) Pyramid appealed to the Second Circuit, arguing that EPA should have considered alternative sites that were available when the developer applied for the permit, instead of sites available when the developer entered the market for a mall site. (235) The court upheld EPA's interpretation as reasonable, concluding that it was consistent with the regulatory language and supported by the administrative record. (236) The mall was never built on Sweedens Swamp.

  2. The Russo Development Corporation Site-Mitigating for Lost Wildlife Habitat in the Meadowlands (1988)

    In loss, EPA issued its sixth, seventh, and eighth section 404(c) vetoes, starting with a veto of a permit to authorize an existing and unlawful fill of 52.5 acres wetlands, along with five additional acres of wetlands in the Hackensack Meadowlands in order to construct warehouses in Carlstadt, New Jersey. (237) The site had undergone extensive changes since the mid-1920s, including installation of tide gates and dikes, excavation of ditches, and construction of a sanitary sewer pipeline and boulevard. (238) Although previously disturbed, the Corps determined that the Meadowlands site had been freshwater wetland within the priority habitat range for waterfowl along the Atlantic Flyway, especially the black duck, prior to the unauthorized fill. (239) The remaining five acres of wetlands continued to provide valuable and rare habitat for a variety of species of birds, mammals, reptiles, and amphibians. (240)

    From 1981 to 1985, without a section 404 permit, the Russo Development Corporation discharged fill material in 44 acres of wetlands for the construction of six warehouses. (241) Russo then proceeded to fill eight-and-a-half more acres to build additional warehouses before the Corps issued a cease-and-desist order in 1985. (242) Russo then applied for a permit for the two sites: (1) the 44-acre parcel that it had previously filled, and (2) the 13.5-acre parcel comprised of eight-and-a-half filled acres and five acres of existing wetlands. (243)

    The Corps proposed to issue the permit, approving Russo's mitigation proposal, which included enhancement of existing wetlands to compensate for lost wetlands and the permanent preservation of twenty-three acres of wetlands in a neighboring river basin. (244) But EPA objected, requesting increased mitigation, even though the agency did not propose restoration of the filled wetlands due to uncertainties concerning effective restoration. (245) EPA also sought a section 404(q) permit elevation, but the Assistant Secretary denied the request. (246) As a result, EPA initiated 404(c) proceedings and, in 1988, issued a 404(c) veto based on unacceptable adverse effects on wildlife that had occurred from past fills and would occur with the new fills, In doing so, EPA emphasized the adverse cumulative effects of wetlands loss in the area and its relationship to declines in wildlife populations. (247) The agency also determined that Russo's mitigation plan was inadequate and too vague. (248)

    Russo challenged the permit denial in federal district court, which decided that the Corps' decision to combine the two sites into a single application was arbitrary and capricious and limited the permit application to only the 13.5-acre site. (249) Consequently, EPA's veto was limited to the 13.5-acre plot, which effectively vacated the veto for the previously filed 44-acre site. (250) EPA, the Corps, and Russo proceeded to reach a settlement agreement "resolving all issues related to both the 44: and 13.5-acre parcels." (251) Ultimately, EPA issued a modification of its 404(c) decision, which removed the prohibition for disposal at the 13.5-acre plot and allowed Russo to seek a permit from the Corps to discharge at that site contingent on agreed upon Mitigation. (252)

  3. The Henry Rein: Preserving East Everglades Wetlands from Agricultural Development (1988)

    The second loss veto--and seventh overall--concerned three permit applications from different landowners to rock plow 432 acres of wetlands on their property in the East Everglades area of southern Florida. (253) The land in the East Everglades has an extremely porous limestone layer and is hydrologically connected to Everglades National Park. (254) EPA classified the area as prairie wetlands, providing several significant ecological services including habitat for fish and wildlife, food chain production, water storage, groundwater recharge, and geochemical, biological nutrient, and pollutant uptake. (255) The National Park Service observed two endangered species, the Florida panther and cape sable sparrow, at the proposed sites and throughout the East Everglades. (256) The East Everglades also offers recreational activities, including bird watching. (257)

    In 1986, the owner of a 60-acre site applied for a permit to rock plow the area before farming. (258) FWS and EPA opposed the permit due to potential adverse environmental effects, and both the Dade County Department of Environmental Resources Management and South Florida Regional Planning Council thought that the permit was inconsistent with local zoning. (259) Nevertheless, the Corps proposed issuing the permit, noting that it also expected a permit application for rock plowing on a second, independently owned 60-acre site and suggesting that it would likely issue a permit for that project. (260) EPA requested a section 404(q) permit elevation, arguing that the Corps had inadequately considered cumulative effects and the amount of degradation the project would cause to the nation's waters. The Assistant Secretary of the Army for Civil Works reviewed and referred EPA's concerns to the District Engineer but declined to elevate the permit to Corps headquarters. (261) Owners of a third property--some 312 acres of wetlands on three parcels--were also actively pursuing a section 404 permit to rock plow. (262)

    EPA evaluated all three sites and concluded that the sites were ecologically similar, and that the proposed rock plowing would have similar environmental effects at all three sites. (263) As a result, in IBS?, EPA proposed a section 404(c) action that encompassed parts of all three sites. (264) In toss, EPA issued the section 404(c) veto due to unacceptable adverse effects on wildlife. (265) EPA pointed out that of the original 25,000 acres of prairie wetlands in the East Everglades, 8,000 acres--roughly one-third--had already been lost through agriculture or other development. (266) The...

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