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Sacramento Regional County Sanitation Dist. v. Thomas

Citation: 18 ELR 20432
No. No. Civ. S-85-1802 LKK, 668 F. Supp. 1427/26 ERC 1633/(E.D. Cal., 09/17/1987, 10/16/1987)

The court holds that the Environmental Protection Agency (EPA) may not recover Federal Water Pollution Control Act (FWPCA) sewage treatment funds from a sanitation district that used the funds to purchase land to replace natural wetlands destroyed during construction of a disposal facility at the district's wastewater treatment plant. The court rules that the FWPCA authorizes EPA to make grant funds available for the purchase of land used for mitigation purposes. The court rules that the acquisition and development of new wetlands may constitute a "construction" of a publicly owned treatment works (POTW) within the meaning of FWPCA §§ 201(g)(1) and 212(1). The phrase "or other necessary actions" in § 212(1) indicates that Congress intended to include all steps essential to the building of a POTW. There is no evidence in the legislative history that Congress intended the phrase to have anything but its plain meaning, and the history of the construction grants program does not indicate that Congress meant to exclude the costs of necessary mitigation measures from the program. The court notes that Congress' rejection of a proposal in 1981 to require EPA to make grants for mitigation measures does not affect the agency's discretion to make such grants. The court rules that funding for the purchase of land for replacement wetlands is not prohibited by EPA regulations. The regulations provide that costs for site acquisition are not eligible for grants but do not suggest that every purchase of land is a site acquisition. The court holds that EPA's interpretation of its regulations and EPA policy are not entitled to deference, since the agency's position regarding the funding of mitigation measures and the purchase of mitigation wetlands has been inconsistent, as illusrated by the agency's change of mind in this case.

The court holds that the provision of replacement wetlands in this case was a necessary action and therefore qualifies as the "construction" of a POTW within the meaning of FWPCA § 212(1). The acquisition of the wetlands to compensate for the destruction of native wetlands was necessary to obtain permit approvals from various federal and state agencies, and EPA's grant for the project was conditioned upon the acquisition of new wetlands.

Counsel for Plaintiff
L. B. Elam, County Counsel
700 H St., Suite 2650, Sacramento CA 95814
(916) 440-5544

Henry L. Diamond, Richard S. Davis, Kenneth S. Kaufman
Beveridge & Diamond
133 New Hampshire Ave. NW, Washington DC 20036
(202) 828-0200

Counsel for Defendants
David F. Levi, U.S. Attorney; Joseph F. DePietro, Ass't U.S. Attorney
3305 Federal Bldg., 650 Capitol Mall, Sacramento CA 95814
(916) 440-2331