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INDUSTRIAL HWY. CORP. v. DANIELSON

June 8, 1992

INDUSTRIAL HIGHWAY CORPORATION, Plaintiff,
v.
COLONEL R.M. DANIELSON, District Engineer, New York District, United States Army Corps of Engineers, Defendants.



The opinion of the court was delivered by: ALFRED M. WOLIN

 WOLIN, District Judge

 BACKGROUND

 All facts relevant to the disposition of this motion are undisputed. Industrial owns an eight-acre tract in Woodbridge Township, New Jersey, on which it has planned to construct a building that will contain approximately 160,000 square feet of interior space. Industrial claims that to build the structure as planned would require it to, in regulatory terms, "discharge fill" into 2.45 acres of "wetlands".

 Pursuant to 33 C.F.R. §§ 330.5(a)(26) and 330.7(b), Industrial served Colonel Danielson by certified mail with a pre-discharge notification letter dated October 8, 1990,which it "submitted as notice of activities authorized under the Nationwide Permit authorized by 33 CFR Section 330.5(a)(26)." Complaint, Exhibit B. Industrial indicated in the letter that it had already obtained, as required by 33 C.F.R. § 330.9(b)(3), a water quality certification from the State of New Jersey. Id.; see Complaint, Exhibit B (copy of Water Quality Certification, effective August 30, 1990). In response, Joseph J. Seebode, Chief of the Corps' New York District Regulatory Branch, sent Industrial a letter dated October 25, 1990, in which he stated that

 
the site in question was previously inspected by the Corps of Engineers during 1987, in response to reports . . . that filling was occurring at the site without requisite permits. Those site inspections confirmed this to be the case. . . . You were directed to remove the fill materials that had been illegally discharged into the waters of the United States . . . to resolve the Clean Water Act violation present on the site.
 
Based upon the recent delineation performed by the New Jersey Department of Environmental Protection (NJDEP), it is evident that full restoration was not completed. . . . An inspection of the site on October 17, 1990 confirmed that all of the fill was not removed, and that such fill remains on the site in violation of section 404 of the Clean Water Act.
 
In light of the above, a Pre-discharge Notification Procedure is not appropriate. At this juncture it would be appropriate for you to either remove the remaining fill or submit an application for an individual Department of the Army permit to maintain the existing fill material from those areas not restored as required, and for the additional 2.5 acres of waters of the United States proposed to be filled.

 Exhibit A, Defendant's Brief in Support of Motion to Dismiss.

 Industrial took the position in its discussions with the Corps that Seebode erred in concluding that a Clean Water Act ("CWA") *fn1" violation remained uncorrected. It relied on an undated letter of May 1987 from Arthur J. LaPerriere, Acting Chief, Harbor Supervision and Compliance, Regulatory Functions Branch of the Corps. In that letter, LaPerriere concluded that

 
except for some minor deficiencies, we found that the restoration work satisfactorily resolves the [CWA] violation. . . . Based upon assurances that these minor items will be corrected on May 5, 1987, we are rescinding the cease and desist order and closing the file on this case.

 Industrial met with Corps representatives in November 1990 and July 1991 in an attempt to persuade the Corps to change its position that an individual permit would be required. During this period Industrial also wrote a number of letters to the Corps stating its position and expressing frustration at delays in the permitting process. In a letter dated August 6, 1991, Colonel Danielson stated that, based on the Corps' Office of Counsel review of

 
the complete application file for this proposal . . ., I have determined that our initial decision to require that [Industrial] obtain an individual permit was proper. Accordingly, we will continue with the processing necessary for an individual permit under the discretionary authority of the Division Engineer.

 Exhibit F, Coakley Certification.

 In September 1991, Industrial submitted additional documentation needed to complete its individual permit application. As of April 23, 1992, the individual permit application had been neither approved nor rejected. Coakley Certification, P36.

 Industrial filed the complaint in this action on October 8, 1991, alleging the existence of subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1346. The complaint alleges that "Defendant's suspension of Nationwide Permit 26 as it relates to the Property was arbitrary and unreasonable and without basis in either fact or in law." Complaint P15. The prayer for relief "demands judgment declaring that Defendant erred in refusing to permit Plaintiff to utilize Nationwide Permit 26 and ordering Defendant to confirm to Plaintiff that work on the Property may proceed under said Nationwide Permit 26." Complaint at page 6.

 DISCUSSION

 A. The CWA Permitting Scheme

 The CWA is a comprehensive statute enacted "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." CWA § 101(a), codified at 33 U.S.C. § 1251(a). As part of the comprehensive scheme, CWA § 404(a), codified at 33 U.S.C. § 1344(a), authorizes the Secretary of the Army, acting through the Chief of Engineers, to issue permits for "discharges of dredged or fill material into the navigable waters at specified disposal sites." 33 U.S.C. § 1344(a); see also 33 U.S.C. § 1344(d) (defining "Secretary"). *fn2" An unpermitted discharge of "any pollutant" into "navigable waters" constitutes a violation of CWA § 301(a), codified at 33 U.S.C. § 1311(a); United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 123, 106 S. Ct. 455, 457, 88 L. Ed. 2d 419 (1985). "Pollutant" is broadly defined at 33 U.S.C. § 1362(6) to include, inter alia, "dredged spoil", "rock" and "sand." "Navigable waters" are defined broadly by the CWA to include all "waters of the United States". CWA § 502(7), codified at 33 U.S.C. § 1362(7). The United States Environmental Protection Agency has broadly construed the term "waters of the United States" to include most "wetlands." 33 C.F.R. § 328.3(a). Industrial does not dispute that the lands in question in this action are "wetlands" subject to the requirements of the CWA. *fn3"

 Subject to certain restrictions in § 1344(c) that do not apply here, decisions by the Corps to grant or deny permits authorized under § 1344(a) are to be made "through the application of guidelines developed by the Administrator [of the Environmental Protection Agency ("EPA")], in conjunction with the Secretary [of the Army]. . . ." 33 U.S.C. § 1344(b)(1). The EPA guidelines are published at 40 C.F.R. Part 230. The Corps' regulations that govern discharge permits under § 1344 are published at 33 C.F.R. Parts 320 through 330. Discharge permits may be issued as "individual permits", or as "general permits". 33 C.F.R. § 320.2(c); 33 U.S.C. § 1344(e)(1) (authorizing general permits).

 
Individual permits are those
 
issued following a case-by-case evaluation of a specific project involving the proposed discharge(s) in accordance with the procedures of [33 C.F.R. Part 323] and 33 CFR Part 325 and a determination that the proposed ...

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