ELR Citation: ELR 20282
No(s). 91-10771-MA (D. Mass. Aug 26, 1991)

The court upholds the Corps of Engineers' decision to issue a Federal Water Pollution Control Act (FWPCA) §404 permit for the residuals landfill portion of the Boston Harbor cleanup. The construction of the landfill in the town of Walpole will require filling a 600-square-foot man-made wetland area. The court first holds that the Corps properly applied its FWPCA §404(b)(1) guidelines. The court holds that the Corps reasonably decided not to consider groundwater effects in its analysis of practicable alternatives. The guidelines require the Corps to select the practicable alternatives with the least adverse impact on the aquatic ecosystem unless that alternative has other significant adverse environmental consequences. The Corps reasonably determined that groundwater is not an aquatic ecosystem. The court holds that the Corps' ultimate decision that the Walpole site satisfied the practicable alternatives test was reasonable. The Corps did not abuse its discretion in deciding not to study alternatives to the Walpole site in great detail based on its conclusion that the landfill would have an inconsequential impact on the aquatic ecosystem. The Corps also did not err in adopting the alternatives analysis in its review under the National Environmental Policy Act. The court holds that the Corps' consideration of the landfill's secondary effects was adequate. The court holds that the Corps reasonably determined that the Walpole site was the least environmentally damaging practicable alternative.

The court rules that a provision of the guidelines prohibiting the Corps from issuing a permit that would jeopardize species listed under the federal Endangered Species Act does not require the Corps to consider impacts on species listed as threatened or endangered by individual states. However, the court rules that the Corps must consider impacts on wildlife, including state-designated threatened species, under another section of the guidelines. The court finds that the Corps was aware of the landfill's negative impacts on blue herons and other birds and holds that the Corps reasonably determined that the impact could not be significant. The court rules that the Corps must consider effects on groundwater connected to municipal water supplies under a provision of the guidelines that prohibits discharges that will cause significant degradation of the waters of the United States. The court holds that the Corps adequately analyzed groundwater impacts and reasonably concluded that there was not a threat of significant degradation. The court holds that the Corps did not act in bad faith in reaching its conclusion about groundwater impacts. The court holds that the Corps' conclusion that the project is not contrary to the public interest was justified, given the necessity of the landfill in the cleanup of Boston Harbor and the minor impacts on wetlands. Finally, the court holds that the Corps reasonably decided not to prepare a supplemental environmental impact statement in light of alleged new evidence in a report on wetlands and groundwater impacts.

[A previous decision in this litigation is published at 22 ELR 20105.]

Counsel for Plaintiffs
Stephen D. Anderson
Anderson & Kreiger
33 Mt. Vernon St., Cambridge MA 02141
(617) 252-6575

Christopher H. Little
Tillinghast, Collins & Grahams
1 Old Stone Sq., Providence RI 02903
(401) 456-1200

Counsel for Defendants
George B. Henderson II, Ass't U.S. Attorney
1107 John W. McCormack Federal Bldg., U.S. P.O. & Courthouse|
Boston MA 02109
(617) 223-9400