ELR Citation: ELR 21458
No(s). 93-K-2181 (D. Colo. Apr 20, 1994)

The court holds that a proposed consent decree between the U.S. Environmental Protection Agency (EPA) and a land developer who discharged fill into 44.5 acres of wetlands without a permit in violation of the Federal Water Pollution Control Act (FWPCA) is not fair, reasonable, or in the public interest. The court notes that when parties wish to incorporate a settlement affecting public interests into a judicial decree, the court must scrutinize it carefully. The court holds that the decree does not fulfill the objectives of the FWPCA and is not fair, reasonable, adequate, or in the public interest. Because EPA relied almost exclusively on the developer to construct the technical terms of the decree and remediation and mitigation plans, the court need not defer to the Agency or give full weight to the policy of encouraging settlements. In rejecting the decree, the court relies on public comments that EPA largely dismissed as unfounded. The court denies a motion to enter the decree, holding that the decree was not the product of good-faith negotiations in which the parties would have fully and carefully considered all possible alternatives.

Counsel for Plaintiff
Rebecca A. Lloyd
Department of Justice
Environmental Defense Section
999 18th St., Ste. 945, Denver CO 80202
(303) 294-1900

Counsel for Defendants
David S. Neslin, Melanie D. Mills
Arnold & Porter
One United Bank Ctr.
1700 Lincoln St., Denver CO 80203
(303) 863-1000