ELR Citation: ELR 21337
No(s). 91-2215 (1st Cir. Jul 15, 1992)

The court holds that the U.S. Army Corps of Engineers properly applied its Federal Water Pollution Control Act §404(b)(1) guidelines in issuing a permit to place fill in an artificial wetland and properly concluded that the landfill was not contrary to the public interest, and that the district court did not abuse its discretion in quashing the subpoenas and granting a protective order to prevent discovery of certain documents and denying a motion for the judge's disqualification. Two towns neighboring a proposed landfill, which is part of the effort to clean up Boston Harbor, challenged the Corps' actions following the Massachusetts Water Resources Authority's (MWRA's) proposal to construct the landfill for residuals of processed sludge from the cleanup and submission of a permit application for such activity to the Corps. Applying the "arbitrary and capricious" standard of review, the court first holds that the Corps did not erroneously interpret 40 C.F.R. §230.10(a) of the §404 guidelines in concluding that the direct impacts of the landfill were inconsequential or that no practicable alternative to the 600-square-foot artificial wetland exists that would have a lesser adverse impact on the aquatic system. Despite a town bylaw making the wetland a protected resource, the town failed to make this bylaw part of the administrative record open to review by the court, and the bylaw has no legal significance since the MWRA is not subject to it. Moreover, a rigid interpretation of the guidelines requiring an exhaustive feasibility evaluation of each of the alternative sites is unwarranted, and the Corps reasonably considered secondary wetland impacts as part of the practicable alternatives analysis. It is reasonable for the Corps to consider, under its practicable alternatives analysis, the functional value of the wetland to be impacted and the mitigation measures proposed to avoid secondary impacts. The court holds that it is within the discretion of the U.S. Environmental Protection Agency and the Corps to determine whether groundwater resources are part of the ecosystem for the purposes of a practicable alternatives analysis, because such a determination ultimately involves an ecological judgment. The court also holds that a commission report identifying six alternative sites is insufficient to raise a genuine issue of material fact that the Corps' decision was arbitrary, capricious, or contrary to law. The court next holds that the Corps gave adequate consideration, under 40 C.F.R. §230.10(b) of the §404 guidelines, to the impact the landfill will have on the habitats of several species. The court also holds that the Corps' conclusion that the MWRA's proposed project is not contrary to the public interest is reasonably supported in the administrative record and so meets the requirements of 33 C.F.R. §320.4(a). In addition, the court holds that the grant of a protective order and motion to quash subpoenas of documents that were excluded from the administrative record was not an abuse of discretion, because 50 of the documents contain no factual or policy information relevant to the issuance of the permit, seven other documents meet the required elements for assertion of attorney-client privilege with the Department of Justice by the Corps, and a draft letter regarding the adequacy of the landfill site is protected from disclosure by the deliberative process privilege. Finally, the court holds that the towns' motion to disqualify the judge is totally without basis in fact or law.

Counsel for Plaintiffs-Appellants
Brian Riley
101 Arch St., Boston MA 02110
(617) 951-0007
Christopher Little
Tillinghast, Collins & Graham
One Old Stone Sq., Providence RI 02903
(401) 456-1200

Counsel for Defendants-Appellees
Stephen Goldberg
Massachusetts Water Resource Authority
100 First Ave., Boston MA 00219
(617) 242-6800

Torruella, J. (before Campbell and Bownes, JJ.):