B&B Partnership v. United States ( 1997 )


Menu:
  • UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    B&B PARTNERSHIP; B&B
    PISCATAWAY, INCORPORATED; BEVARD
    FAMILY LIMITED PARTNERSHIP,
    Plaintiffs-Appellants,
    No. 96-2025
    v.
    UNITED STATES OF AMERICA,
    Defendant-Appellee.
    Appeal from the United States District Court
    for the District of Maryland, at Greenbelt.
    Peter J. Messitte, District Judge.
    (CA-93-2866-PJM)
    Argued: July 15, 1997
    Decided: December 24, 1997
    Before MURNAGHAN, Circuit Judge, and BUTZNER and
    PHILLIPS, Senior Circuit Judges.
    _________________________________________________________________
    Affirmed by unpublished opinion. Senior Judge Butzner wrote the
    opinion, in which Judge Murnaghan and Senior Judge Phillips joined.
    _________________________________________________________________
    COUNSEL
    ARGUED: Robert David Sokolove, SOKOLOVE & ASSOCIATES,
    Bethesda, Maryland, for Appellants. Daniel Richard Dertke, UNITED
    STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
    Appellee. ON BRIEF: Susan M. Kayser, SOKOLOVE & ASSO-
    CIATES, Bethesda, Maryland, for Appellants. Lois J. Schiffer, Assis-
    tant Attorney General, Environment and Natural Resources Division,
    M. Alice Thurston, Andrew C. Mergen, UNITED STATES
    DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
    _________________________________________________________________
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    _________________________________________________________________
    OPINION
    BUTZNER, Senior Circuit Judge:
    The appellants, B&B Partnership, B&B Piscataway, Inc., and
    Bevard Family Limited Partnership (collectively referred to as B&B),
    challenge the Army Corps of Engineers' denial of a section 404 dis-
    charge permit. 
    33 U.S.C. § 1344
    . The permit would have authorized
    B&B to fill 1.5 acres of wetland in Prince George's County, Mary-
    land, as part of a proposed rubblefill project. Both parties moved for
    summary judgment. The district court upheld the Corps' decision.
    B&B stated the issues on appeal as follows:
    I. Whether the District Court Erred in Excluding Docu-
    ments from the Judicial Review of the Corps of Engi-
    neers' decision, specifically the Chesapeake Terrace
    and Brandywine Rubblefill Documents, Whose § 404
    Permit Applications Were Distinguished and/or Relied
    Upon as Bases for Denying Appellants' § 404 Permit.
    II. Whether the Army Corps of Engineers' Denial of
    Appellants' Permit Was Arbitrary and Capricious, an
    Abuse of Discretion, or Otherwise Not in Accordance
    With the Law.
    I
    B&B applied to the Corps for a permit in connection with its plan
    to locate a rubble landfill at a 69 acre site in Prince George's County,
    2
    Maryland. A rubble landfill or rubblefill is a disposal site for nonpol-
    luting construction debris, such as concrete, asphalt, glass, steel, and
    vegetation. B&B selected the site, in part, because of its favorable
    topography. The site includes a natural ravine in which B&B planned
    to deposit the debris. It was estimated that the ravine, which covers
    approximately 49 acres, would hold about 2,000,000 cubic yards of
    fill.
    B&B began the state and local planning processes for the rubblefill
    in 1985. As originally conceived, the project did not impact wetlands.
    B&B's uncontroverted expert reports indicate that no wetlands
    existed in the ravine in 1985. Although a portion of Tinkers Creek tra-
    verses the western edge of the site, the plan as originally designed did
    not disturb that area.
    During the planning process, B&B was asked to minimize the traf-
    fic impact on the neighboring community by accessing its site from
    the west, across Tinkers Creek. B&B agreed and applied to the Corps
    for a permit to fill 0.4 acres of wetland for the purpose of building a
    temporary access road across the creek.
    Sometime during 1988 or 1989, a wetland emerged along the base
    of the ravine. An intermittent stream began to flow saturating the soils
    and bringing forth wetland vegetation. The stream and the wetlands
    drain into Tinkers Creek, which joins the Piscataway Creek, a major
    tributary to the Potomac River. The Potomac flows into the Chesa-
    peake Bay. By 1990, the ravine contained 1.1 acres of wetland, and
    wetland vegetation accounted for 10% of the ravine's plant life.
    Because of this development, B&B submitted a revised permit appli-
    cation, requesting authorization to fill the ravine wetlands. With its
    application, B&B included an alternatives analysis that claimed no
    practicable alternatives existed. B&B attempted to show that the rub-
    blefill was in the public interest.
    The Corps gave public notice of B&B's proposal and solicited
    comments. The Corps received comments from the Fish and Wildlife
    Service (FWS), the National Marine Fishery Service (NMFS), the
    Environmental Protection Agency (EPA), and private citizens. The
    comments received from the FWS, the NMFS, and the EPA recom-
    mended denial of the permit. The Corps received 43 letters from pri-
    3
    vate citizens that opposed the project. The letters generally described
    how the project would hinder the efficient functioning of the wet-
    lands. One citizen feared that the site would "fall prey to the same
    piecemeal [ecological] destruction that . . . claimed nearly three-
    fourths of the county's swamps and marshes." Another was disturbed
    by the damage that the project would do to the bald eagle nesting site
    on the property. In summary, the letters showed that citizens were
    troubled by noise, traffic, and water pollution that the project would
    bring to the area. After reviewing the comments and evaluating
    B&B's application, the Corps forwarded copies of the comments to
    B&B and indicated that it was inclined to deny the permit.
    B&B then modified the plan in an attempt to address certain con-
    cerns expressed by the Corps and the other federal agencies. It also
    submitted a more comprehensive alternatives analysis. After review-
    ing these materials, the Corps expressed its continued dissatisfaction
    with B&B's proposal. The Corps did not submit B&B's supplemental
    materials to the public or the federal agencies for additional com-
    ments.
    On April 5, 1993, the district engineer (DE), who was charged with
    making the final decision, officially denied the permit and issued a
    statement of findings. He concluded that the detrimental environmen-
    tal impacts of the project outweighed its benefits and that the project
    was contrary to the public interest. He also concluded that B&B had
    not demonstrated the absence of practicable alternatives.
    At the time the DE rendered the decision, B&B had received all but
    one of the permits it needed from Maryland and Prince George's
    County. The outstanding permit, a state water quality permit, was
    issued after the Corps denied B&B's permit. B&B invested over
    $500,000 to secure state and local approval.
    B&B then challenged the Corps' decision in district court. The dis-
    trict court affirmed denial of the permit by granting the Corps' sum-
    mary judgment motion.
    II
    The first issue on appeal is whether the district court abused its dis-
    cretion by denying B&B's motion to supplement the administrative
    4
    record. In its motion, B&B sought to add to the record the Corps'
    documents relating to two other rubblefills located in Prince George's
    County, the Brandywine rubblefill (Brandywine) and the Chesapeake
    Terrace rubblefill (CT), both of which had obtained section 404 per-
    mits. B&B contends that a review of the permit applications for those
    rubblefills reveals that the Corps' decision to deny B&B's permit was
    arbitrary and capricious.
    B&B argues that these documents should be viewed as part of the
    administrative record because the Corps relied on those materials
    when it evaluated B&B's application. As support for this claim, B&B
    cites the DE's findings which state that Brandywine is an existing,
    alternative rubble disposal site located near B&B's proposed site.
    B&B also relies on an internal Corps memorandum that briefly docu-
    ments the differences in the environmental conditions existing at
    B&B's proposed site and the CT site.
    We review the district court's decision to deny B&B's motion to
    supplement the record for abuse of discretion. Inland Empire Public
    Lands Council v. Glickman, 
    88 F.3d 697
    , 703-04 (9th Cir. 1996).
    Judicial review of an agency decision is generally based on the record
    developed before the agency. Florida Power & Light Co. v. Lorion,
    
    470 U.S. 729
    , 743-44 (1985). The record includes"everything that
    was before the agency pertaining to the merits of its decision."
    Portland Audubon Soc. v. Endangered Species Comm. , 
    984 F.2d 1534
    , 1548 (9th Cir. 1993). When the record prepared by the agency
    and submitted to the court omits evidentiary material that the agency
    relied on to reach its decision, it is appropriate to add the omitted
    materials to the record. 
    Id.
    The district court acted within its discretion when it determined
    that the Corps did not rely on either the Brandywine or the CT docu-
    ments to evaluate B&B's application. The references to Brandywine
    and CT do not support a contrary inference. The DE's reference to the
    Brandywine site shows only that the Corps was aware of an alterna-
    tive rubblefill operating in the area. The DE's acknowledgment of this
    basic, pertinent, and publicly known fact does not show that he relied
    on any evidence or materials related to Brandywine's section 404 per-
    mit application when evaluating B&B's proposal.
    5
    Similarly, the memorandum that discusses the differences between
    the CT site and B&B's proposed site does not demonstrate that the
    Corps relied on CT's permit application or other related materials to
    evaluate B&B's application. The memo does not suggest that the
    evaluation of the merits of B&B's application was altered by facts or
    evidence related to the CT site. Instead, the memo merely sets forth
    the environmental conditions existing at each site:
    1. The following information is provided in order to clar-
    ify the site differences between B&B Partnership's landfill
    site pending denial and the Chesapeake Terrace Rubble
    Landfill for which a Department of the Army (DA) permit
    is being issued.
    ...
    3. The Chesapeake Terrace site is an abandoned sand and
    gravel quarry in Anne Arundel County. The wetlands to be
    impacted by the actual rubble fill are relatively low quality
    emergent wetlands formed in shallow depressions caused by
    mining activity. These shallow emergent wetlands contain
    only mono-typic vegetation and most likely "dry-up" during
    the summer months. The area adjacent to these wetlands is
    basically a barren sand and gravel landscape with no habitat
    value. Other more valuable wetlands on this site will not be
    impacted and are to be protected by a conservation ease-
    ment. Mitigation is also to be performed.
    4. Regarding the B&B site, the rubble is to be placed in a
    naturally occurring steep sloped ravine. The ravine contains
    an ephemeral to intermittent stream at the bottom with adja-
    cent forested wetlands. The slopes of the ravine are heavily
    forested (climax stage). The project would involve piping
    and filling the stream to create the substrate for the landfill
    and the removal of all forest up to the top of the ravine. The
    area also provides quality wildlife habitat.
    The memo does not suggest that the Corps relied on any information
    or materials related to the CT site to reach, or to support, its findings
    about the environmental conditions at B&B's site. Those conditions
    6
    --such as the existence of the stream, the location and evaluation of
    the forest, and the suitability of the area for wildlife--reflect site-
    specific information, unrelated to the CT site. The memorandum
    observes that each decision is warranted by the conditions existing at
    the respective sites. This is not a situation in which the Corps relied
    on another application to justify its denial of B&B's permit. Rather,
    the reasons for the Corps' decision, as documented in its statement of
    findings, relate to the particular environmental impacts on the pro-
    posed site. In short, the CT documents do not pertain to the merits of
    the Corps' decision about B&B's application.
    B&B did not demonstrate that the Corps relied on either the Bran-
    dywine or CT documents when it evaluated B&B's application. The
    district court did not abuse its discretion by holding that the docu-
    ments should not be considered part of the administrative record.
    III
    The next issue is whether the Corps' decision to deny the permit
    was arbitrary and capricious. The Administrative Procedures Act
    (APA) establishes the standard for judicial review of a Corps deci-
    sion. Friends of the Earth v. Hintz, 
    800 F.2d 822
    , 830-31 (9th Cir.
    1986). According to the prescribed standard, the Corps' decision must
    be disturbed if it is arbitrary and capricious, an abuse of discretion,
    or otherwise not in accordance with law. Citizens to Preserve Overton
    Park, Inc. v. Volpe, 
    401 U.S. 402
    , 416 (1971), abrogated on other
    grounds, Califano v. Sanders, 
    430 U.S. 99
     (1977). When a court
    reviews the substance of an agency decision under the arbitrary and
    capricious standard, it must "consider whether the decision was based
    on a consideration of the relevant factors and whether there has been
    a clear error of judgment." Id. at 416."Although this inquiry into the
    facts is to be searching and careful, the ultimate standard of review
    is a narrow one." Id. "The court is not empowered to substitute its
    judgment for that of the agency." Id.
    Section 404 of the Clean Water Act authorizes the Secretary of the
    Army, acting through the Corps of Engineers, to issue permits allow-
    ing, among other things, the discharge of fill into waters of the United
    States. 
    33 U.S.C. § 1344
    (a). In the absence of a permit, the Act pro-
    hibits such discharges. 
    33 U.S.C. § 1311
    (a).
    7
    The evaluation process for a section 404 permit application is pre-
    scribed by regulation. See 
    33 C.F.R. §§ 320.4
     et seq. In order to
    receive a permit, an applicant must clear two hurdles. The applicant
    must demonstrate that the proposed project satisfies the EPA's section
    404(b) guidelines, which begin at 
    40 C.F.R. § 230
    . See 
    33 U.S.C. § 1344
    (b); 
    33 C.F.R. § 323.6
    (a). The EPA's guidelines specify that a
    permit should not issue if "there is a practicable alternative to the pro-
    posed discharge which would have less adverse impact on the aquatic
    ecosystem . . . ." 
    40 C.F.R. § 230.10
    (a).
    In addition to determining if the project meets the criteria estab-
    lished by the guidelines, the Corps must conduct an independent
    assessment of the project's merits to determine whether it is in the
    public interest. 
    33 C.F.R. § 323.6
    (a). This public interest review, as
    it is called, involves weighing the project's benefits against its detri-
    ments, including the cumulative impact of the proposed project. 
    33 C.F.R. § 320.4
    . If the proposal does not satisfy the guidelines or if it
    is judged not to be in the public interest, the Corps must deny the per-
    mit. The Corps' public interest review involves an examination of the
    project's overall impact. Factors taken into consideration include:
    . . . conservation, economics, aesthetics, general environ-
    mental concerns, wetlands, historic properties, fish and
    wildlife values, flood hazards, floodplain values, land use,
    navigation, shore erosion and accretion, recreation, water
    supply and conservation, water quality, energy needs,
    safety, food and fiber production, mineral needs, consider-
    ation of property ownership, and, in general, the needs and
    welfare of the people.
    
    33 C.F.R. § 320.4
    (a)(1). If, after examining these factors, the Corps
    decides a project is contrary to the public interest, no permit will be
    issued. Id.; 
    33 C.F.R. § 323.6
    (a). When the Corps reaches a final deci-
    sion, it is obliged to prepare a report setting forth its findings and con-
    clusions. 
    33 C.F.R. § 325.2
    (a)(6).
    IV
    The Corps articulated a rational basis for denying B&B's permit.
    After reviewing the relevant factors, the Corps concluded that the
    8
    project would cause substantial adverse environmental impacts. Those
    impacts include "wetland function and value loss, loss of valuable
    wildlife habitat, removal of the area's food chain support capabilities,
    degraded local air quality, and increased noise." In the Corps' view,
    these adverse impacts outweighed the project's benefits, making the
    project contrary to the public interest. The Corps also concluded that
    B&B had not clearly demonstrated the absence of practicable alterna-
    tives. As the district court found, the project's negative environmental
    impacts provide a rational basis for the Corps' decision.
    B&B argues that the Corps' conclusions about environmental
    impacts are not supported by facts in the record. Specifically, B&B
    claims the record does not establish that the project will adversely
    affect fish and wildlife, the area's food chain production capabilities,
    water quality and wetlands, air quality, and noise levels.
    Contrary to B&B's assertion, the record does include evidentiary
    support for the Corps' findings. To evaluate B&B's application, the
    Corps reviewed the proposed physical changes involved in creating
    the rubblefill. The Corps then, with the aid of the FWS and the
    NMFS, examined the site to assess the environmental conditions that
    exist there. Finally, applying its scientific expertise and its general
    knowledge of local natural resources, the Corps determined how the
    proposed physical changes were likely to effect the environment.
    By filling the ravine with debris, B&B's plan would eliminate the
    1.1 acres of ravine wetland and .4 acres of wetland for the stream
    crossing, although the latter disturbance would be for a temporary
    period of 10 years. Filling the ravine would also eliminate the estab-
    lished forest located there. Undeniably, destruction of the ravine wet-
    lands and forest would eliminate the wildlife habitat and food
    production provided by those resources. Loss of the wetlands means
    that the headwater stream that empties into Tinkers Creek would also
    be lost.
    The Corps determined that the physical changes contemplated by
    B&B's plans would have additional environmental impacts. First, the
    Corps found that filling the ravine would eliminate or displace the
    wildlife inhabiting the area. It also found that the wildlife in the sur-
    rounding lands would be impacted because the ravine is an integral
    9
    part of the surrounding ecosystem. The Corps based those findings on
    its review of B&B's plans, inspections of the site, and the report pre-
    pared by FWS biologists based on their site inspection.
    Next, the Corps determined that elimination of the headwater
    stream would add to the cumulative negative impact on environmen-
    tal resources caused by the loss of other headwaters in the area. The
    Corps also determined that the wetlands involved here are particularly
    valuable because few such undisturbed sites remain in Prince
    George's County.
    In agreement with the district court, we conclude that the evidence
    in the record provides a rational basis for the Corps' denial of B&B's
    application for a permit.
    V
    In addition to challenging the evidentiary basis of the Corps' deci-
    sion, B&B asserts that the Corps did not adhere to regulatory proce-
    dures. Specifically, B&B contends that the Corps was required to
    submit the supplemental materials, which B&B had provided in
    response to the public comments, to FWS, NMFS, and EPA for their
    review. In particular, B&B notes that its supplemental materials
    addressed the concerns raised by the FWS about the bald eagle's nest
    located on the property adjacent to the site.
    The Corps' regulations state that the "district engineer will issue a
    supplemental, revised, or corrected public notice if in his view there
    is a change in the [permit] application data that would affect the pub-
    lic's review of the proposal." 
    33 C.F.R. § 325.2
    (a)(2). This regulation
    plainly does not require the Corps to issue such a notice and accept
    additional comments whenever an applicant submits supplemental
    material. The Corps is required to do so only when the DE believes
    that the supplemental materials would affect the public's view.
    In this case, the DE decided not to seek additional comments. In
    doing so, he did not abuse his discretion. The supplemental materials
    submitted by B&B did not ameliorate the principal negative environ-
    mental impacts caused by filling the ravine. While it is true that the
    10
    plan modifications offered greater protection for the bald eagle's nest,
    that concern was not one of the principal bases for the Corps' deci-
    sion. Because the Corps was not required to solicit additional com-
    ments, B&B's procedural claim is without merit.
    The district court's judgment is affirmed.
    AFFIRMED
    11