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Bersani v. EPA

ELR Citation: 18 ELR 20001
Nos. No. 86-CV-772, 674 F. Supp. 405/26 ERC 1678/(N.D.N.Y., 10/06/1987)

The court holds that the Environmental Protection Agency (EPA) acted within its authority when it vetoed under §404(c) of the Federal Water Pollution Control Act (FWPCA) a Corps of Engineers permit authorizing construction of a shopping mall in the Sweeden's Swamp wetlands in South Attleboro, Massachusetts. The court rules that EPA has the authority to use the guidelines in FWPCA §404(b)(1) in determining whether a project will have unacceptable environmental impacts under §404(c). Nothing in the statute or regulations prohibits EPA from using the practicable alternative test in §404(b)(1) in making a §404(c) unacceptability determination. Further, EPA used the §404(b)(1) guidelines to find an unacceptable impact on wildlife, one of the five resources enumerated under §404(c). The court holds that EPA reasonably considered the avoidability and the magnitude of the loss in determining whether the loss is unacceptable under §404(c) and significant under the implementing regulations. The court holds that EPA may use its independent judgment in applying the §404(b)(1) guidelines to its §404(c) decision. Nothing in the legislative history indicates that EPA may not use the practicable alternatives test in determining the environmental impact of a proposed discharge on the five resources identified in §404(c).

The court holds that EPA's conclusion that a practicable alternative existed was reasonable. EPA's feasibility determination, based on its conclusion that a virtually identical shopping mall could be built at a site in North Attleboro, was not arbitrary. EPA also reasonably determined that the North Attleboro site was "available" since the site was available at the time the developer entered the market. Even if EPA's decision that a practicable alternative existed was arbitrary, the veto must be upheld because it was based on a rational, independent finding that construction of the mall at Sweeden's Swamp would have significant adverse effects on wildlife.

[Briefs in this case are digested at ELR PEND. LIT. 65941. Related federal decisions are published at 16 ELR 20033 and 20795. A related state case is published at 18 ELR 20118.]

Counsel for Plaintiffs
Gary H. Baise, Virginia S. Albrecht, Marc Zeppetello
Beveridge & Diamond
1333 New Hampshire Ave. NW, Washington DC 20036
(202) 828-0200

Counsel for Defendants
Lawrence R. Liebesman
Land and Natural Resources Division
Department of Justice, L'Enfant Plaza Station, P.O. Box 23986, Washington DC 20026-3986
(202) 633-2281

Gail B. Cooper
Office of General Counsel
Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 382-7700