Town of Norfolk v. United States Army
Case Date: 07/15/1992
Docket No: 91-2215
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July 15, 1992 ____________________ No. 91-2215 TOWN OF NORFOLK AND TOWN OF WALPOLE, Plaintiffs, Appellants, v. UNITED STATES ARMY CORPS OF ENGINEERS, ET AL., Defendants, Appellees. ____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. A. David Mazzone, U.S. District Judge] ___________________ ____________________ Before Torruella, Circuit Judge, _____________ Campbell and Bownes, Senior Circuit Judges. _____________________ _____________________ Stephen D. Anderson for appellant Town of Norfolk and John ___________________ ____ W. Giorgio for appellant Town of Walpole, with whom Leonard ___________ _______ Kopelman, Kopelman and Paige, P.C., Anderson & Kreiger, ________ ____________________________ _____________________ Christopher H. Little and Tillinghast, Collins & Graham, were on _____________________ _____________________________ brief. George B. Henderson II, Assistant United States Attorney, _______________________ with whom Barry M. Hartman, Acting Assistant Attorney General, _________________ Environment and Natural Resources Division, Wayne A. Budd, United _____________ States Attorney, William B. Lazarus, Stephen L. Samuels, _____________________ _____________________ Elizabeth Yu, Attorneys, Department of Justice, Steven H. _____________ __________ Goldberg, of counsel Gary Pasternak, Assistant District Counsel, ________ ______________ Department of the Army, Corps of Engineers, were on joint brief for appellees United States Army Corps of Engineers and Massachusetts Water Resources Authority. ____________________ ____________________ -2- TORRUELLA, Circuit Judge. On this appeal, the Towns of _____________ Walpole and Norfolk challenge the decision of the U.S. Army Corps of Engineers ("Corps") to issue a permit under Section 404 of the Clean Water Act1 to allow the Massachusetts Water Resources Authority ("MWRA") to place fill in an artificial wetland located in the Town of Walpole and adjacent to the Town of Norfolk.2 The district court, in a comprehensive opinion, found that the Corps' determinations under Section 404 were not arbitrary, capricious or otherwise not in accordance with law and therefore it granted summary judgment in favor of the Corps, its district engineer for New England, and the MWRA (collectively referred to herein as defendants). Norfolk & Walpole v. U.S. Army Corps of _________________ __________________ Engineers, 772 F. Supp. 680 (D. Mass. 1991). _________ In addition, the Towns challenge (1) the district court's decision to allow a motion by defendants to quash subpoenas and for a protective order to prevent discovery of certain documents3 and (2) the district court judge's denial of the Towns' motion for his recusal pursuant to 28 U.S.C. ____________________ 1 33 U.S.C. 1344. 2 In a related appeal, the Towns challenged the adequacy of the supplemental environmental impact statement prepared by the United States Environmental Protection Agency ("EPA") for the proposed landfill. Norfolk v. United States EPA, 761 F. Supp. _______ _________________ 867 (D. Mass. 1991). We affirmed the district court's grant of summary judgment in favor of the EPA and its Administrator. 3 Norfolk & Walpole v. U.S. Army Corps of Engineers, 137 F.R.D. _________________ ____________________________ 183 (D. Mass. 1991). -3- 455(a).4 We affirm the rulings and decisions of the district court for the reasons that follow. I A. Factual Background A. Factual Background __________________ This appeal is an offspring of the colossal effort to clean up Boston Harbor. This particular controversy -- involving the issuance of a permit to construct and operate a landfill in Walpole -- has been described elsewhere in detail.5 We therefore summarize the facts pertinent to this appeal. Pursuant to a compliance plan approved by the District Court for the District of Massachusetts to abate the discharge of inadequately treated wastewater and sewage sludge and other residuals into Boston Harbor, the MWRA was required, among other remedies, to construct and operate a landfill by March 1994 to hold grit, screenings and, if necessary, digested or heat-dried sludge from its wastewater treatment facilities. See generally ___ _________ United States v. Metropolitan Dist. Comm'n, 23 Env't Rep. Cas. ______________ __________________________ 1350 (D. Mass. 1985). In 1986 the MWRA began to work closely with the U.S. Environmental Protection Agency (EPA) to find possible alternatives for both sludge management technologies and ____________________ 4 Section 455(a) provides: Any justice, judge, or magistrate of the United States shall disqualify himself, _____ in any proceeding in which his impartiality might reasonably be questioned. 5 United States v. Metropolitan Dist. Com., 757 F. Supp. 121, _____________ _______________________ 123-26 (D. Mass. 1991), aff'd, 930 F.2d 132 (1st Cir. 1992). _____ -4- potential sites for the landfill. Eventually four technologies and ten potential sites were identified from a field of 299 sites. Additional evaluation was conducted to further screen the potential sites for detailed analysis. The criteria used at this stage of the screening included environmental standards, such as ecology and air quality and potential groundwater effects, and non-environmental criteria, such as cost and the extent to which potential communities were already hosting permanent wastewater treatment facilities. This screening stage eliminated four sites on environmental and other grounds. Of the remaining six sites, four were further evaluated for sludge processing, while two sites -- Rowe Quarry and MCI-Walpole -- were further evaluated for a landfill operation. In February of 1989, the MWRA issued its Draft Environmental Impact Report and Draft Residuals Management Facilities Plan ("DEIR"). The MWRA proposed to process sludge at the Fore River Staging Area in Quincy, Massachusetts and to landfill the residuals at the MCI-Walpole site. In May of 1989, EPA issued a Draft Supplemental Environmental Impact Statement ("DSEIS"). In its analysis of the proposed landfill at Walpole, EPA identified two major critical groundwater supplies. First, the Massachusetts Department of Corrections maintains a number of public water supply wells located in the Charles River Watershed Aquifer to the west of the proposed landfill. These wells supply drinking water to the MCI-Norfolk and MCI-Walpole prison -5- facilities. Second, to the east of the landfill site is the head of the Neponset Sole Source Aquifer.6 This sole source aquifer serves several wells that are the only source of drinking water to the residents of the Town of Walpole.7 EPA concluded that the nearest of these wells is located more than two miles from the landfill site and is separated from the landfill by soils of low permeability. In March 30, 1990, EPA formally approved the construction and operation of the landfill at the Walpole site. Pursuant to Section 404 of the Clean Water Act,8 the Corps is required to review permit applications for proposal to dredge and fill wetlands under the standards set forth in 33 C.F.R. 320.4(a)(1) and 40 C.F.R. 230. In May 1990, the MWRA submitted a revised permit application describing all of its proposed projects to clean Boston Harbor, including the Walpole landfill.9 On July 12, 1990, the Corps issued a public notice ____________________ 6 A sole source aquifer is a designation given by EPA to the principal or sole source of drinking water for a given area. The western boundary of the Neponset Sole Source Aquifer runs to the east of the MCI-Walpole landfill. 7 In addition, south of the landfill are wells that supply drinking water to Southwood Hospital and north of the landfill are wells which supply drinking water to private residences, a horse ranch and a dog kennel. 8 33 U.S.C. 1344. 9 The projects included the construction of a headworks facility for preliminary treatment of sewage on Nut Island, a 5 mile inter-island wastewater tunnel between Nut and Deer Island, a 9.5 mile effluent outfall tunnel and diffuser from Deer Island to offshore waters, a sludge processing facility at Quincy, and the residuals landfill at issue in this case. -6- concerning the MWRA's application, which proposed to set aside forty-six acres of a ninety-four acre plot located in the Town of Walpole and adjacent to the Town of Norfolk. Under MWRA's proposal, a 600 square foot area of man-made wetland located in the center of the proposed project would be filled. This wetland, also known as Wetland E, was created by the Massachusetts Department of Corrections as an obstacle course for training prison guards. The National Marine Fisheries Service and the U.S. Fish and Wildlife Service submitted a comment form indicating no objection to the project. EPA and the MWRA submitted comments in support of the proposed landfill. However, the Towns of Norfolk and Walpole submitted detailed objections to the MWRA proposal. The Towns objected to the proposed landfill essentially on four grounds. First, the Towns claimed that the MWRA had failed to demonstrate that no practicable alternative having less adverse impact on the aquatic ecosystem existed as required under 40 C.F.R. 230.10(a). Second, the Towns argued that the landfill would eliminate over fifty percent of the surface water supply to a portion of an adjacent wetland, thus allegedly causing substantial disruption to the overall wetland resource, including a significant adverse impact on a vernal pool10 located within 100 to 150 feet of the landfill footprint. Third, the Towns alleged that the proposed landfill would adversely ____________________ 10 Vernal pools serve as the sole breeding habitat for certain amphibian species and provide breeding and feeding habitat for a variety of other species. -7- impact wildlife habitats for the great blue heron and the pied- billed grebe. Fourth, the Towns claim that the MWRA disregarded the adverse impact the proposed landfill would have on groundwater resources. David H. Killoy, a branch supervisor of the Corps' Regulatory Division, also opposed the MWRA's application to construct and operate the landfill in Walpole. In a draft memorandum dated December 24, 1990, Mr. Killoy found two unique conditions which, in his opinion, required that the permit be denied because it failed "two parts of the 404(b)(1) guidelines and it is contrary to the public interest."11 First, the MWRA had failed to demonstrate the nonexistence of a practicable alternative to the landfill would have less adverse impact on the aquatic ecosystem. Mr. Killoy concluded that even a small threat to the Neponset Sole Source Aquifer in the area constituted a significant adverse environmental consequence. Second, the discharge of fill may contribute to a significant degradation of the waters of the United States, in this instance, the wells which supply drinking water. Mr. Killoy also noted that in the Corps' review of the Central Artery and Tunnel Project, he had identified a "wide range of sites which were available for land fill."12 In light of the claims by Mr. Killoy and the Towns, the Corps' Regulatory Branch requested its Hydraulics and Water ____________________ 11 Memorandum by David H. Killoy, dated December 24, 1990, at 7. 12 Id. at 6. __ -8- Quality Branch, Water Control Division to examine the available reports and data on groundwater impacts and to prepare a technical report on the potential risk for contamination of the water supplies. The ensuing report recommended that the monitoring system be expanded to include at least one monitoring well to detect any leachate13 escaping towards the Neponset Sole Source Aquifer. The report concluded "that the risk to drinking water supplies from [the Walpole] landfill is minor."14 On January 23, 1991, Mr. Killoy submitted a final memorandum summarizing his continued opposition to the Walpole landfill. Mr. Killoy asserted that the MWRA had not clearly demonstrated that Walpole was the "least environmentally damaging practicable alternative" for the following three reasons. First, if groundwater flow contributed substantially to the nearby down gradient wetlands, then "the removal of 46 acres of groundwater recharge area, high on the groundwater divide, by capping could deplete the wetlands water supply causing a long term degradation."15 Second, the application contained too little information on the location of bedrock and its properties. Third, the investigation "essentially neglected the presence of the [sole source aquifer] and until the final environmental ____________________ 13 Leachate refers to precipitation that will percolate through the residuals placed at the landfill. 14 Report, dated February 1991 at 1, 23. 15 Killoy Memorandum of January 23, 1991, 4. -9- documents ignored the nearby private wells."16 Mr. Killoy, however, concluded with the following observation: I also recognize that many of the items above can be interpreted differently by different reviewers who could recommend issuance of the permit without appearing arbitrary or capricious. This is where the decision maker takes over. Id. at 52. __ Less than three weeks after Mr. Killoy's last memorandum, the Corps issued its Record of Decision ("ROD") granting a permit to the MWRA to inter alia construct and operate _____ ____ the MCI-Walpole landfill. As further elaborated below, the Towns claim that the Corps' permitting process is plagued with errors and that the decision to issue the permit was based on improper pressure by the U.S. Department of Justice and EPA. B. Statutory and Regulatory Background B. Statutory and Regulatory Background ___________________________________ Congress enacted the Clean Water Act17 ("CWA") "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. 1251(a); see also ________ 40 C.F.R. 230.1. Section 301 of the CWA makes the discharge of pollutants into navigable waters unlawful, unless such discharge is authorized by permit. The term "pollutants" is defined broadly and includes dredged or fill material.18 The term "navigable waters" is similarly all encompassing, covering all ____________________ 16 Id. at 14. __ 17 33 U.S.C. 1311(a). 18 33 U.S.C. 1362(6). -10- "waters of the United States." 33 U.S.C. 1362(7). Wetlands are included in the definition of "waters of the United States."19 Section 404 of the CWA authorizes the Corps of Engineers to issue or deny permits for the discharge of dredged or fill material. 33 U.S.C. 1344(a). Generally an applicant seeking a permit under Section 404 submits an individual application for each discharge. In considering permit applications, the Corps is required to apply the regulations and guidelines set forth in Titles 33 and 40 of the Code of Federal Regulations. 33 C.F.R. 320 and 40 C.F.R. Part 230. Section 404(b)(1) of the CWA directs the Corps to apply the guidelines developed by the EPA Administrator in conjunction with the Secretary of the Army, acting through the Chief of Engineers. 33 U.S.C. 1344(b)(1). These Section 404 guidelines are codified at 40 C.F.R. Part 230. Under 33 C.F.R. 320.4(a)(1), the Corps evaluates a permit application's "probable impacts, including cumulative impacts, of the proposed activity on the public interest." 33 C.F.R. 320.4(a)(1).20 The Towns contend that the Corps' ____________________ 19 40 C.F.R. 230.3(s)(7). See also United States v. Riverside ________ _____________ _________ Bayview Homes, Inc., 474 U.S. 121 (1985) (Corps acted reasonably ___________________ in interpreting Clean Water Act to require permits for discharge of material into wetland). 20 Among the factors evaluated under this "public interest review" are conservation, economics, aesthetics, general environmental concerns, wetlands, historic properties, fish and wildlife -11- determination to issue the permit is erroneous under subsections (a), (b) & (c) of 40 C.F.R. 230.10 and under 33 C.F.R. 320.4(a)(1). ____________________ values, flood hazards, floodplain values, land use, navigation, shore erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, mineral needs, consideration of property ownership and, in general, the needs and welfare of the people. 33 C.F.R. 320.4(a)(1). -12- C. Standard of Review C. Standard of Review __________________ The district court's grant of summary judgment in favor of the defendants is reviewed de novo. See, e.g., Medina & __ ____ ___ ____ _________ Sucesores, Inc., et al. v. Custodio, et al., No. 91-1469, slip ________________________ ________________ op. at 17 (1st Cir. May 7, 1992). Rule 56(c) of the Federal Rules of Civil Procedure provides that a motion for summary judgment shall be granted if it is clear from the record that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter law." We review the Corps decision to issue the permit under the standard of review set forth in the Administrative Procedure Act,21 pursuant to which an agency's action will be set aside only if it is found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." To determine whether the Corps's decision complies with the arbitrary and capricious standard, we consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the [Corps]. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, ________________________________________ _____ 416 (1971). See also United States v. Riverside Bayview Homes, _________ _____________ _________________________ Inc., 474 U.S. 121 (1985) ("An agency's construction of a statute ____ it is charged with enforcing is entitled to deference if it is ____________________ 21 5 U.S.C. 706(2)(A). -13- reasonable and not in conflict with the expressed intent of Congress"); All Regions Chemical Labs, Inc. v. U.S. E.P.A., 932 ________________________________ ___________ F.2d 73, 75 (1st Cir. 1991) ("In reviewing EPA's decision we must pay particular attention to the interpretation that it gives its own rules and regulations"); Environmental Coalition Broward ________________________________ County, Inc. v. Myers, 831 F.2d 984, 986 (11th Cir. 1987) _____________ _____ (deference to the Corps' determination is "particularly appropriate in the case of complex environmental statutes such as the Clean Water Act."). II Section 230.10(a) Section 230.10(a) _________________ Section 230.10(a) provides that: no discharge of dredged or fill material shall be permitted if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences. 40 C.F.R. 230.10(a). In its Record of Decision, the Corps found that the impact of the Walpole landfill on the aquatic ecosystem to be inconsequential considering the low value of the 600 square foot landfill and the minor potential secondary impacts to adjacent wetlands and waters. The Towns assert that the Corps interpretation of the Section 230.10(a) guidelines is flawed for three reasons. First, the Corps erred in concluding that the direct impacts were "inconsequential." This erroneous conclusion, the Towns assert, reversed the presumption embodied -14- in Section 230.10(a), which requires the Corps to presume that other practicable alternatives exist. Second, the Towns claim that the Corps erred in concluding that the mitigation measures proposed in the MWRA's application would render the secondary impacts to surrounding wetlands "inconsequential." Third, it is alleged that the Corps failed to consider groundwater impacts as part of the practicable alternatives analysis because it erroneously concluded that the term "aquatic ecosystem" as used in Section 230.10(a) generally excludes groundwater. A. Did the Corps Reasonably Conclude that There is No __________________________________________________________ Practicable ___________ Alternative? ___________ The Towns argue that the Corps' conclusion that direct impacts to Wetland E (the 600 square foot, man-made wetland) were inconsequential is not supported by the evidence. This "evidence" consists of a By-Law enacted by the Town of Walpole making Wetland E a protected resource. This argument fails for two reasons. First, and foremost, the Towns failed to make this Wetland By-Law part of the administrative record. We have no way of knowing the terms of this By-Law. Since judicial review of the Corps' permit decisions is limited to the administrative record, the Towns' argument fails. See, e.g., Friends of Earth ___ ____ _________________ v. Hintz, 800 F.2d 822, 830-31 (9th Cir. 1986) (standard of _____ review for the Section 404 permitting process under the Administrative Procedures Act is "highly deferential"); Buttrey _______ -15- v. United States, 690 F.2d 1170 (5th Cir. 1982), cert. denied, _____________ ____ ______ 461 U.S. 927 (1983) ("[Courts] look only to the administrative record in order to determine if the Corps' decision was arbitrary, capricious, or not in accordance with law."). Second, even assuming the inclusion of the By-Law in the administrative record, the fact that Walpole has passed such a By-Law is insufficient to establish that the direct and secondary impacts to the ecosystem are not "inconsequential." Dubbing a piece of real estate "wetland" by municipal edict does not establish such a conclusion de jure for purposes of federal __ ____ law nor does the By-Law grant per se "consequence." We agree ___ __ with the Corps that Walpole's By-Law has no legal significance since the MWRA is not subject to them. The Towns also claim that in concluding that the impacts to Wetland E was negligible and therefore that no other practicable alternative having less environmental impact existed, the Corps reversed the rebuttable presumption contained in 40 C.F.R. 230.10(a). We disagree. None of the comments received by the Corps disputed that this 600 square feet area consisted of an isolated, man- made, low-value wetland. Neither Town asserted in the comments submitted to the Corps that Wetland E has any essential ecological value nor have they presented evidence to contradict the finding by the Corps that this small area of wetland has "virtually no function or value." Record of Decision at 7. In addition, we note that Wetland E does not meet the criteria for -16- regulation under the Massachusetts Wetland Protection Act. See ___ 310 Code of Massachusetts Regulations 10.57(1)(b). The Towns argue that once the Corps found that the direct impact of the landfill was "inconsequential," it was required to conduct an exhaustive feasibility evaluation of each of the 299 alternatives sites initially screened for the landfill. See Appellants' Brief at 21. We hold that such a ___ rigid interpretation of the guidelines is not warranted. The plain language of the Section 404 regulatory scheme indicates that the level of review depends on the nature and severity of the project's impact on the environment. The general introduction for Section 230.10 states: Although all requirements in 230.10 must be met, the compliance evaluation procedures will vary to reflect the seriousness of the potential for adverse impacts on the aquatic ecosystems posed by specific dredged or fill material discharge activities. 40 C.F.R. 230.10. In Section 230.6, the Guidelines further provide: (a) . . . These Guidelines allow evaluation and documentation for a variety of actives, ranging from those with large, complex impacts on the aquatic environment to those for which the impact is likely to be innocuous. It is unlikely that the Guidelines will apply in their entirety to any one activity, no matter how complex. It is anticipated that substantial numbers of permit applications will be for minor, routine activities that have little, if any, potential for significant degradation of the aquatic environment. It generally is not intended or expected _________________________________________ that extensive testing, evaluation or _________________________________________ -17- analysis will be needed to make findings _________________________________________ of compliance in such routine cases. ___________________________________ (b) The Guidelines user, including the agency or agencies responsible for implementing the Guidelines, must recognize that different levels of effort that should be associated with varying degrees of impact and require or prepare commensurate documentation. The level of ____________ documentation should reflect the _________________________________________ significance and complexity of the _________________________________________ discharge activity. __________________ 40 C.F.R. 230.6(a) & (b) (1991) (emphasis added). Clearly, the guidelines contemplate an analysis which varies in magnitude depending on the impact of the proposed discharge, rather than the dogmatic scrutiny suggested by the Towns. In cases such as this one, where the MWRA and the EPA conducted a thorough environmental analysis of alternative sites, and where the Corps' determination that the direct impact on the aquatic ecosystem of filling the 600 square foot artificial wetland is negligible is supported by the administrative record, the Corps is not required under Section 230.10(a) to duplicate the analysis conducted by the MWRA and EPA. Norfolk & Walpole, __________________ 772 F. Supp. at 687. Nor can the Corps be faulted for relying on the alternative analysis conducted by EPA in its review of the landfill pursuant to the National Environmental Policy Act.22 In doing so, the Corps followed the recommendation of Section 230.10(a)(4), which provides that "the analysis of alternatives required for NEPA environmental documents . . . will in most ____________________ 22 42 U.S.C. 4321 et seq. __ ___ -18- cases provide the information for the evaluation of alternatives under [the Section 404] Guidelines." Although Section 230.10(a) recognizes that the NEPA review may provide insufficient analysis to meet the Section 404 guidelines requirements, it is apparent here that the Corps supplemented the extensive alternatives analysis conducted by the MWRA and the EPA. The Corps re- evaluated several potential sites to verify that the environmental criteria used in the selection of the proposed landfill was properly applied. The Corps found that many of these sites didn't meet the landfill acreage requirements and therefore were appropriately not considered for landfills. Other sites which were considered for landfills were ranked lower than Walpole-MCI and therefore deemed less preferable and not carried forward. ROD at 11. The Corps reasonably relied on the substantial evaluation conducted by the MWRA and EPA to find that the landfill in Walpole was the best alternative under the Guidelines. The initial screening for a landfill began with approximately 300 potential sites and after substantial additional evaluation of about ten individual sites, Walpole was selected. Under the practicable alternatives test, the Corps is not required to conduct an independent feasibility evaluation of each alternative site merely because a party disagrees with its ultimate conclusion. We hold that it was not arbitrary, capricious or contrary to law for the Corps to conclude that no practicable alternative to this 600 square feet of artificial wetland exists which would have a lesser "adverse impact on the -19- aquatic ecosystem." 40 C.F.R. 230.10(a)(3). If the Corps' determination under Section 404 is reasonably supported by the administrative record, our inquiry must end. Friends of Earth, ________________ 800 F.2d at 835. -20- B. Has the Corps Failed to Consider the Secondary Impacts on the _____________________________________________________________ Wetlands of the Proposed Discharge on Aquatic Ecosystem? _______________________________________________________ The Corps analyzed two potential secondary impacts on the adjacent wetlands; (1) the possibility that leachate might reach the surface waters in the event of a leak from the landfill and (2) the loss of surface/groundwater recharge. The Corps concluded that although the potential for leachate transmission into the adjacent wetlands existed, its likelihood will be greatly minimized by the state-of-art landfill design and collection system which will be used. Even if some leakage occurred, the propensity of wetlands to assimilate the leachate constituents (i.e. act as a sink) is well recognized. In fact the use of wetlands as tertiary treatment is well documented and recognized by EPA. Therefore, the effect is expected to be minor. ROD at 12. The Corps also characterized the possible loss of surface water and groundwater recharge as a minor impact since "the proportion of precipitation falling on the landfill site which infiltrates into the groundwater is small (about 1/5 [of an acre]) . . . when compared to the proportion entering the adjacent wetlands as surface runoff" and the landfill represented a very small portion of the total drainage area supporting the off-site wetlands. Id. The district court found that the Corps' __ conclusions regarding the secondary effects of the landfill to be reasonable. Norfolk & Walpole, 772 F. Supp. at 688. _________________ The Towns, however, claim that the Corps failed to adequately consider secondary wetland impacts as part of the -21- practicable alternatives analysis. The Towns' argument run as follows. First, the Corps attempts to avoid the practicable alternatives analysis by concluding that certain mitigation measures planned by the MWRA would render any secondary impacts to wetlands inconsequential. Second, the Corps' conclusion that Wetland E is a minor part of the total drainage areas supporting the Stop River wetlands cannot serve as a justification for the issuance of the permit, and in any event, the Towns argue that they have presented evidence to contradict this finding. Citing Bersani v. Robichaud, 850 F.2d 36, 39 (2d Cir. _______ _________ 1988), cert. denied, 489 U.S. 1089 (1989), the Towns allege that ____ ______ mitigation measures may not be used to meet the practicable alternative analysis. The Towns's interpretation of Bersani is _______ not persuasive. In Bersani, the EPA denied an application for a _______ permit to build a shopping mall on 32 acres of "high quality red maple swamp." Id. at 40. To compensate for filling 32 acres of __ this "high quality" wetland, the developer proposed to create 36 acres of wetland in an off-site gravel pit. The EPA determined that this mitigation measure was insufficient because (1) of its scientific uncertainty; (2) the availability of an alternative site for the shopping mall; and (3) the adverse effect on wildlife. Bersani, therefore, does not announce a procedural _______ straitjacket against the use of mitigation measures to compensate for environmental losses, but rather it upholds the basic proposition that if mitigation measures are insufficient to compensate for the loss of a valuable wetland, the permit should -22- be denied. See also Friends of Earth v. Hintz, 800 F.2d 822, 826 ________ ________________ _____ (9th Cir. 1986) (affirming Corps' conditional issuance of a Section 404 permit on compliance with an agreement proposing mitigation measures). Moreover, in this case there will be no destruction of a "high quality" wetland area; rather the direct impact on the aquatic environment involves the filling of 600 square feet of an isolated, artificial wetland that was used by the Department of Corrections as an obstacle course for training prison guards. We hold that it is reasonable for the Corps to consider, under the practicable alternatives analysis, the functional value of the wetland to be impacted and the mitigation measures proposed to avoid secondary impacts. The Towns cite Buttrey v. United States, 690 F.2d 1170 _______ _____________ (5th Cir. 1982), cert. denied, 461 U.S. 927 (1983) for the ____ ______ proposition that the Corps cannot rely on its conclusion that Wetland E is a minor part of the total drainage area supporting the Stop River wetlands. In Buttrey, a land developer argued _______ that his project proposal to fill about 40 acres of wetland was a "mere flyspeck" in relation to the river watershed adjacent to the property. The Fifth Circuit noted that such "piecemeal" review of the proposed project is prohibited by 33 C.F.R. 320.4(b)(3), which provides: Although a particular alteration of a wetland may constitute a minor change, the cumulative effect of numerous piecemeal changes can result in a major impairment of wetland resources. Thus, the particular wetland site for which an -23- application is made will be evaluated with the recognition that it may be part of a complete and interrelated wetland area. Simply stated, 33 C.F.R. 320.4(b)(3) -- which authorizes the Corps to consider the cumulative effect of numerous piecemeal changes in its "public interest review" analysis -- does not apply here. The 600 square foot artificial wetland to be filled is not "part of a complete and interrelated wetland area"; it is isolated. And none of the comments in this case contradicted the Corps' finding that Wetland E had virtually no value. In Buttrey, it was undisputed that since the forty acre wetland was _______ located upstream, it served a unique function in maintaining downstream water quality. The secondary impacts here result not from filling Wetland E but from the setting aside of 46 acres, most of which is on upland. Finally, the proposed project in Buttrey was opposed by the Fish and Wildlife Service, EPA and the _______ National Marine Fisheries Service because they alleged it would inter alia destroy a habitat and nursery ground for wildlife and _____ ____ increase the risk of flooding in surrounding neighborhoods. No such opposition was registered by these government agencies against this project. In their comments, the Towns' consultants claim that the construction of the landfill would potentially eliminate up to fifty percent of the drainage areas to adjacent wetlands, including Wetland A, a site which has a vernal pool, approximately 150 feet from the footprint of the proposed landfill. The Corps, however, concluded that the landfill site -24- represents less than one percent of the total drainage area and that the mitigation measures would render any impacts insignificant. With respect to the mitigation measures, the Corps specifically found: The [MWRA] has committed to develop a plan to capture the rainfall and return it to the wetlands directly adjacent to the landfill to protect their hydrology. This leads to the conclusion [that] the potential for adverse affect on the hydrology of the adjacent wetlands is minor. In any event, the development of the landfill will include elaborate monitoring of baseline conditions of the adjacent wetlands, modelling of the water flows, and a collection and replacement system to return the water to the wetlands. A portion, based on the modelling, will be returned as surface water, and a portion will be returned as ground water via an infiltration system. ROD at 12. The Corps further noted that the MWRA has implemented these mitigation measures in other projects and that the Corps had "approval authority over the monitoring and mitigation program through a special condition of the permit . . . ." Id. __ The Towns' objection to the Corps findings on the subject of drainage reflect nothing more than a disagreement between the experts. In cases where technical disputes predominate the issues, an agency's expertise is entitled to deference. Chevron _______ U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837, ______ ________________________________________ 844 (1984). We hold that the Corps' conclusions that the landfill site represents less than one percent of the total drainage area and that the mitigation measures would render any potential impact insignificant are not clearly arbitrary, -25- capricious or otherwise not in accordance to law. -26- C. Are Groundwater Resources Part of the Aquatic Ecosystem for ___________________________________________________________ Purposes of the Practicable Alternatives Analysis? _________________________________________________ In applying the practicable alternatives analysis, the Corps excluded groundwater resources from consideration. The Towns allege that groundwater resources are part of the "aquatic ecosystem" for purposes of the practicable alternatives analysis. The district court held that: The plain language of the Guidelines clearly constrains the alternative analysis, in the first instance, to effects on the aquatic ecosystem. "Aquatic ecosystem," in turn, is defined as "waters of the United States, including wetlands, that serve as habitat for interrelated and interacting communities and populations of plants and animals." 40 C.F.R. 230.3(c). The Corps' determination that groundwater sources are not aquatic ecosystems was clearly a reasonable interpretation of 230.10(a), as [groundwater sources] cannot be said to "serve as habitat for interrelated and interacting communities and populations of plants and animals." While the impact on groundwater is certainly an "environmental consequence," the alternatives analysis is limited to comparison of effects on the aquatic ecosystem. Norfolk & Walpole, 772 F. Supp. at 685. The Towns, however, __________________ argue that groundwater resources are "waters of the United States." 40 C.F.R. 230.3(s)(3) provides that the term "waters of the United States" includes: All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sand- flats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or -27- destruction of which could affect interstate or foreign commerce including any such waters: (i) Which are or could be used by interstate or foreign travelers for recreational or other purposes . . . . Although this definition does not indicate whether groundwater constitutes "waters of the United States," the Corps has interpreted this definition to refer only to surface waters. This interpretation has been upheld by some courts. Exxon Corp. ___________ v. Train, 554 F.2d 1310, 1329 (5th Cir. 1977); Kelley v. United _____ ______ ______ States, 618 F. Supp. 1103, 1105 (W.D. Mich. 1985; United States ______ _____________ v. GAF Corp., 389 F. Supp. 1379, 1383 (S.D. Tex. 1975). Although _________ other courts have questioned whether the term "waters of the United States" should include groundwaters connected to surface waters -- Inland Steel Co. v. E.P.A., 901 F.2d 1419, 1422 (7th _________________ ______ Cir. 1990); McClellan Ecological Seepage v. Weinberger, 707 F. _____________________________ __________ Supp. 1182, 1193-94 (E.D. Cal. 1988) -- we agree with the Corps that since such a determination ultimately involves an ecological judgment about the relationship between surface waters and groundwaters, it should be left in the first instance to the discretion of the EPA and the Corps. Cf. United States v. __ ______________ Riverside Bayview Homes, Inc., 474 U.S. 121, 134 (1985) _________________________________ (deference should be given to "the Corps' ecological judgment about the relationship between waters and their adjacent wetlands"). We have carefully examined the Towns' other arguments and conclude that they have no merit. -28- D. Do Other Practicable Alternatives Exist Which Would Have Less _____________________________________________________________ Adverse Effects On The Aquatic Ecosystem? ________________________________________ If the Corps had properly conducted the practicable alternatives analysis -- the Towns claim -- it would have been unable to overcome the presumption in Section 230.10(a) because other alternatives which would have less "severe environmental impacts" than Walpole are available. The Towns point out that (1) the MWRA itself determined that another alternative -- Rowe Quarry -- would have a less severe environmental impact than the Walpole site and (2) the Governor of Massachusetts appointed a Commission in February of 1991 which identified six other alternatives. In a draft report dated October 1988, the MWRA concluded that "development of the Rowe Quarry as a landfill would result in minimal environmental impacts in comparison to those that would occur at the Walpole-MCI site."23 On its face this statement appears to raise an issue of fact as to whether |