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Orange Env't v. Orange, County of

ELR Citation: 26 ELR 21383
Nos. 91 Civ. 8688 (GLG), 923 F. Supp. 529/42 ERC 1744/(S.D.N.Y., 04/18/1996) Injunction denied

The court holds that a county's compliance with a U.S. Environmental Protection Agency (EPA) wetlands remediation order brought the county into compliance with the Federal Water Pollution Control Act (FWPCA) and bars an environmental groups' citizen suit for injunctive relief. The groups alleged that the county had discharged fill into 49 acres of wetlands without a §404 permit during construction of a landfill-expansion project, and sought an injunction ordering the county to obtain an after-the-fact permit or to perform on-site remediation. In response to the groups' suit, EPA ordered the county to create 98 acres of off-site wetlands to replace the wetlands that the county allegedly filled. The court first holds that the burden is on the environmental groups to produce evidence of a continuing violation of the FWPCA. The court holds that the county's compliance with EPA's off-site remediation order moots the groups' claims for injunctive relief. There is no reasonable likelihood that the landfill operations will recommence at the site. Further, although wetlands have not been restored at the original site, compliance with EPA's order puts the county into compliance with the FWPCA. The court holds that it should give deference to the administrative interpretation of the Agency charged with implementation and enforcement of the §404 program that the section does not require an after-the-fact permit or on-site remediation. Further, if the groups were correct in their view that an after-the-fact permit is the only way of remedying an illegal fill of federal wetlands, it would be impossible for EPA ever to negotiate a compliance order. The court also holds that the site's continuing lack of wetlands does not constitute "wrongful behavior" precluding a finding that the groups' injunctive claims are moot. The court holds that private citizens do not and should not have the power to overrule the judgment of EPA and demand an additional and different type of remediation than that settled on by the federal authorities.

[Prior decisions in this litigation are published at 23 ELR 20746, 21056, and 25 ELR 20247.]

Counsel for Plaintiffs
Jeffrey P. Soons
Soons Circle, New Hampton NY 10958
(914) 374-5471

Counsel for Defendants
Robert F. Kennedy Jr.
Pace Environmental Litigation Clinic
78 N. Broadway, White Plains NY 10603
(914) 422-4343