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Reichelt v. Corps of Eng'rs

ELR Citation: 26 ELR 21343
Nos. 2:93 cv 332, 923 F. Supp. 1090/42 ERC 1859/(N.D. Ind., 02/14/1996)

The court holds that the U.S. Army Corps of Engineers' (the Corps') denial of an after-the-fact nationwide permit (NWP) application under §404 of the Federal Water Pollution Control Act was not arbitrary, capricious, or an abuse of discretion under the Administrative Procedure Act, 5 U.S.C. §706(2)(A). The applicants' project fails to meet all of the requirements of an NWP 26 because these permits apply to wetlands that are isolated or above the headwaters and the applicants do not dispute, or even address, the issue of whether the wetlands at the site are isolated or above the headwaters. The applicants have neither challenged nor demonstrated the unreasonableness of the Corps' conclusion that the wetlands are below headwaters. In addition, the wetlands are not isolated waters because the applicants' environmental assessment established that the wetlands are part of a surface tributary system. Thus, the court holds that the statutory requirements have not been satisfied and, therefore, an NWP 26 does not apply in this case. Even if the wetlands were isolated or above the headwaters, the applicants' contention that the site qualifies for an NWP 26 because only six acres would be destroyed is also without merit because net loss is not the only consideration. The presumption is that a practicable alternative exists unless the applicants clearly demonstrate otherwise, which they have not. Thus, the court holds that the applicants have not shown that the Corps' decision was arbitrary or capricious. Therefore, it should be upheld.

The applicants have not provided any support or authority for their conclusion that because the Corps invited the applicants to submit an after-the-fact application, the Corps waives any objections to the applicants' failure to notify in advance of their fill activities as required by 33 C.F.R. §330.7. In light of the highly deferential standard of review of the Corps' decision, the court cannot conclude without any supporting authority that the notification requirement may be waived. The court next holds that because the applicants' project does not qualify for an NWP 26, the applicants' claim that the Indiana Department of Environmental Management (IDEM) violated their due process rights is moot. All of the Corps' analysis was independent of the IDEM's denial of water quality certification, thus the applicants could not have been harmed by any action the IDEM took. Any claim that the IDEM did not give the applicants proper notice must fail because the IDEM did provide the required information in a letter to the Corps with copies sent to the applicants. Even if the letter was not sufficient notice, the applicants were not prejudiced by any action taken by the IDEM, and in judicial appeals from administrative decisions, trial courts may not reverse for errors that are nonprejudicial and harmless.

Counsel for Plaintiffs
Michael L. Muenich
Hand, Muenich, Wilk & Reid
3235 45th St., Highland IN 46322
(219) 922-4141

Counsel for Defendants
Timothy Burns
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000