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B&B Partnership v. United States

ELR Citation: 28 ELR 20400
Nos. 96-2025, 133 F.3d 913/(4th Cir., 12/24/1997)

The court affirms a district court decision upholding the U.S. Army Corps of Engineers' denial of a Federal Water Pollution Control Act (FWPCA) §404 discharge permit to fill wetlands as part of a rubble landfill project. The court first holds that the district court did not abuse its discretion when it denied the applicant's motion to supplement the administrative record with documents relating to two other rubble landfills in the same county. The Corps' reference to one of the rubble landfills shows only that the Corps was aware of an alternative rubblefill operating in the area. Similarly, references to the other landfill merely set forth the environmental conditions at each site. The court next holds that the Corps' decision to deny the permit was not arbitrary and capricious, because the Corps articulated a rational basis for denying the FWPCA §404 permit. After reviewing the relevant factors, the Corps concluded that the project would cause substantial adverse environmental impacts. And in the Corps' view, these adverse impacts outweighed the project's benefits, making the project contrary to the public interest. Last, the court holds that the Corps was not required to solicit additional public comments when the applicant added supplemental information to its application. The Corps' regulations only require the Corps to issue notice and accept comments on supplemental material when the Corps' district engineer believes that the supplemental materials would affect the public's view.

[Briefs and Pleadings in this litigation are published at ELR BRIEFS & PLEADS. 66538.]

Counsel for Plaintiffs
Robert D. Sokolove
Sokolove & Associates
4340 East-West Hwy., Bethesda MD 20814
(301) 986-9200

Counsel for Defendant
Daniel R. Dertke
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Murnaghan and Phillips, JJ.