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Hough v. Marsh

ELR Citation: 13 ELR 20610
Nos. No. 81-1822-N, 557 F. Supp. 74/(D. Mass., 11/19/1982)

The district court remands the Army Corps of Engineers' issuance of a dredge and fill permit pursuant to §404 of the Federal Water Pollution Control Act (FWPCA), ruling that the Corps failed to comply with the requirements of the Environmental Protection Agency (EPA) §404(b)(1) guidelines and its own §404 permit regulations. Initially, the court rejects defendants' contention that plaintiffs may only seek review pursuant to the citizen suit provision of the FWPCA and rules that, pursuant to 28 U.S.C. §1331(a) and the Administrative Procedure Act, it has jurisdiction to review the Corps' issuance of a permit. The court does not decide whether the Corps' refusal to conduct a public hearing would, by itself, constitute an abuse of discretion. However, the court concludes that, since a remand is otherwise necessary, a public hearing should be conducted since plaintiffs arguably presented factual evidence suggesting the need for a hearing and because the defendants' determination that a hearing would serve no valid interest was not convincing in light of the controversial nature of the project and the congressional intent to have public participation in decisions under the FWPCA.

The court rules that defendants failed to clearly demonstrate that there were no feasible alternatives to the proposed non-water-dependent project, as required by the EPA §404(b)(1) guidelines. Defendants based their determination on the opinion of one realtor and failed to conduct the thorough inquiry required to satisfy the guidelines. The court also rules that defendants failed to comply with their own permit regulations since they did not consider that the proposed fill would appear to violate local land use laws. In addition, defendants failed to adequately address the adverse economic effects and the cumulative impacts of the proposed project. Finally, the court rules that defendants violated the National Historic Preservation Act, as well as their own permit regulations, by failing to include the Edgartown lighthouse in their assessment of the proposed project's impacts on historic values.

Counsel for Plaintiffs
Thomas B. Bracken
Bracken & Bracken
33 Mt. Vernon St., Boston MA 02108
(617) 742-4950

Counsel for Defendants
Nancy Serventi, Ass't U.S. Attorney
1107 P.O. & Cthse. Bldg., Boston MA 02109
(617) 223-3181

Stanley H. Rudman
Guterman, Horvitz, Rubin & Rudman
Three Center Plaza, Boston MA 02108
(617) 227-8010

Richard J. McCarron, Town Counsel
Main St., Edgartown MA 02539
(617) 627-3322