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Resource Invs., Inc. v. Corps of Eng'rs

ELR Citation: 28 ELR 21407
Nos. 97-35934, 151 F.3d 1162/47 ERC 1065/(9th Cir., 07/27/1998)

The court holds that the U.S. Army Corps of Engineers lacked authority under Federal Water Pollution Control Act (FWPCA) §404 to require a company to obtain a dredge and fill permit before constructing a solid waste landfill on a wetlands site. The court first holds that the municipal solid waste that would be disposed of in the proposed landfill does not fall within the definition of either "dredged" or "fill" material. In fact, solid waste falls directly within one of the exceptions—any pollutant discharged into the water primarily to dispose of waste—listed in the definition of fill material. Moreover, the layers of gravel, the low permeability soil, and the synthetic liner that would underlie the solid waste in the proposed landfill, do not constitute fill material because their primary purpose is not to replace an aquatic area with dry land or to change the bottom elevation of a waterbody, but rather to serve as a leak detection and collection system. The court also holds that the siting, design, and construction of a solid waste landfill on a wetlands area are specifically regulated under the Resource Conservation and Recovery Act (RCRA) by the U.S. Environmental Protection Agency (EPA) and states with EPA-approved solid waste permit programs. The Corps' interpretation of its §404 jurisdiction is unreasonable and inconsistent with its regulations because it creates a situation in which the Corps on the one hand, and a RCRA-approved state regulatory program on the other, would make the same wetlands-impact determinations, using the same criteria, with potentially inconsistent results. Moreover, a 1986 memorandum of agreement between EPA and the Corps provides that jurisdiction over the disposal of solid waste is the sole purview of EPA and the affected states. The court further holds that when a proposed project affecting a wetlands area is a solid waste landfill, EPA, rather than the Corps, will have permit authority under RCRA. This harmonization is consistent with the sense of the FWPCA that discharges of solid waste materials are beyond the scope of §404, and avoids unnecessary duplication of federal and state efforts in the area of wetlands protection.

Counsel for Plaintiffs
Daniel D. Syrdal
Heller, Ehrman, White & McAuliffe
701 5th Ave., Ste. 6100, Seattle WA 98104
(206) 447-0900

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

Before Tashima and Stagg,* JJ.