terms, and that even if it did, individual permits were still required for the discharges.
Several issues are raised by these arguments. First, the court must determine whether the properties were tidal or non-tidal. Plaintiff contends that defendants' own reports characterize the land as non-tidal, and thus that they cannot assert that the National Headwaters Permit does not apply because the land is tidal. Defendants assert that if the National Headwaters Permit applies to the property, the Rivers and Harbors Act would require a permit as well. Plaintiff counters that even if the Rivers and Harbors Act applies to require a permit from the Corps, it was ultimately granted a permit by the Corps and the EPA would have no veto authority over the grant of the permit under the Rivers and Harbors Act.
The court concludes that an issue of fact exists as to whether the property at issue was tidal or non-tidal, and thus that summary judgment in plaintiff's favor would be inappropriate.
G. EPA's Reliance on Certain Maps and Reports
Russo challenges the propriety of the reliance of the EPA on certain maps and engineering reports which it contends were not meant for regulatory use in determining whether the properties in question were wetlands. The EPA first states that it was appropriate for it to use the maps and reports, and also contends that the particular maps and reports were not "key" elements of the veto decision and thus that their use was not an abuse of discretion.
The court concludes that the use of the contested maps and reports, even if inappropriate, is not in itself a basis for a finding that the government's assertion of wetlands jurisdiction was improper. If a proper basis for the defendants' decisions existed, then their reliance on certain inappropriate maps and reports would be immaterial. In any event, the court has already indicated above that factual issues regarding the determination that the property was wetlands preclude summary judgment on the jurisdictional issue, and the court will deny plaintiff's cross-motion.
H. Impartiality of the EPA
Russo challenges the impartiality of the EPA, contending that the Section 404(c) veto was not considered by an impartial body. Rather, plaintiff argues that the EPA representatives repeatedly made misrepresentations regarding the good faith of Russo, went out of their way to find reasons to disapprove the Corps permit, and vetoed the permit solely as a gesture towards pacifying environmentalist groups and making up for their history of poor enforcement. Defendants contest plaintiff's assertions of bias.
If the administrative record supports the EPA's conclusion, then the motives of the EPA officers may not be relevant. Under the unique facts and circumstances of this case, however, plaintiff should be afforded the opportunity of demonstrating bias and improper behavior directed against plaintiff if relevant to any of the remaining issues in this matter.
The court, for the reasons discussed, denies defendants' motion to dismiss plaintiff's claims. The court grants plaintiff's motion in part for partial summary judgment, concluding that the Corps acted outside its authority in refusing to process the application for a permit for the 13.5 acre parcel without the 44 acre parcel. Plaintiff is directed to submit an order consistent with this opinion forthwith.