Home » Case Summaries » 1998 » Resource Investment, Inc. v. United States Army Corps of Engineers

 
 

Resource Investment, Inc. v. United States Army Corps of Engineers

 

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Resources Investments, Inc. (RII) sought to develop a solid waste landfill in Pierce County, Washington. The Army Corps of Engineers (Corps), however, denied RII’s request for a dredge and fill permit for the landfill under the Clean Water Act.[1] The District Court for the Western District of Washington affirmed the permit denial. RII appealed, and the Ninth Circuit vacated the decision of the district court, holding that as a matter of law, the Corps lacked the authority to require RII to obtain a dredge and fill permit. Because development of the landfill involved solid waste disposal issues, the Environmental Protection Agency (EPA) was responsible for overseeing any potential development under the Resource Conservation and Recovery Act (RCRA).[2]

RII’s proposed landfill would have covered 168 acres of a 320-acre site and would have required the clearing, excavating, filling, and grading of approximately 21.6 acres of wetlands. The landfill complied with the Tacoma-Pierce County Solid Waste Management Plan, which met the statutory requirements of the State of Washington. The State of Washington developed its plan pursuant to the federal mandate of RCRA,[3] “which requires each state to develop a plan for the safe and environmentally-sound disposal of solid waste within its jurisdiction.”[4]

After buying much of the land on which it was to develop the landfill, in 1988 RII began applying for the permits it needed in order to commence construction. Pierce County granted a conditional use permit, and RII applied to the Tacoma-Pierce County Health Department for a solid waste handling permit. In order to obtain this permit, RII had to demonstrate successfully that

1) a practicable alternative to the proposed landfill that did not involve wetlands was not available; 2) the construction and operation of the landfill would not cause or contribute to violations of any applicable state water quality standard, violate any applicable toxic effluent standard or prohibition, jeopardize the continued existence of endangered or threatened species or critical habitats, or violate any requirement for the protection of a marine sanctuary; 3) the landfill would not cause or contribute to significant degradation of wetlands; and 4) steps had been taken to achieve no net loss of wetlands by first avoiding impacts to wetlands to the maximum extent practicable, then minimizing unavoidable impacts to the maximum extent practicable, and finally offsetting remaining unavoidable wetlands impacts through all appropriate and practicable compensatory mitigation actions.[5]

RII satisfied these criteria, and the health department granted the solid waste handling permit.

In 1990, RII applied to the Corps for a permit under section 404 of the Clean Water Act (CWA) “to discharge dredged or fill material into the navigable waters of the United States.”[6] The Corps denied the application, finding that RII “failed to demonstrate the unavailability of practicable alternatives for waste disposal that were less environmentally damaging.”[7] Thus, the Corps found that RII had not demonstrated that it had considered every practicable alternative to developing a landfill that would have adverse environmental impacts. The district court affirmed the Corps’ denial of the CWA section 404 permit.

RII appealed the district court’s decision. It asserted that the Corps did not have the authority to require a dredge and fill permit, because RCRA mandates that either EPA or states with solid waste permit programs have the authority to regulate municipal solid waste disposal. The Ninth Circuit agreed.

The court first determined that the municipal solid waste that would occupy the landfill did “not fall within the definition of either ‘dredged material’ or ‘fill material.'”[8] The solid waste was neither “excavated or dredged from waters of the United States”[9] nor “used for the primary purpose of replacing an aquatic area with dry land or changing the bottom elevation of a waterbody”[10] as the regulatory definitions required. In addition, Corps regulations specifically provide that section 402 of the CWA governs the disposal of solid waste. Thus, the nature of the waste itself took the proposed landfill out of the purview of the Corps’ permitting authority.

Next, the Ninth Circuit highlighted the unreasonableness of the Corps’ interpretation of section 404 of the CWA. Under RCRA, EPA and states with EPA-approved solid waste disposal programs specifically regulate the siting, design, and construction of landfills in wetlands. Therefore, an interpretation that would also give the Corps authority to regulate these activities could lead to duplicative and potentially inconsistent results, but Corps policy discourages this type of “regulatory overlap.”[11] In fact, the Corps’ own regulations provide that “state and federal regulatory programs should complement rather than duplicate one another.”[12]

The court also looked at correspondences between the Corps and EPA over the years to support its conclusion that the Corps should not play a role in the permitting of solid waste landfills. The court cited a 1984 letter from the Assistant Secretary of the Army to the Administrator of EPA that noted EPA’s expertise in solid waste disposal and the Army’s lack of experience in the same area. The letter concluded by stating that “[i]t strains reason to have the Army Corps of Engineers, with its primary military and navigation missions, to lead this garbage disposal regulation.”[13] In addition, a Memorandum of Agreement between the two agencies emphasized that EPA has sole responsibility for the regulation of solid waste disposal. The court found ample authority to support its conclusion that “when a proposed project affecting a wetlands area is a solid waste landfill . . . EPA (or the approved state program), rather than the Corps, will have permit authority under . . . RCRA.”[14] Thus, the Ninth Circuit reversed the district court’s decision and remanded the case with instructions to vacate the Corps’ decision to deny RII’s permit for the landfill.


[1] Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1387 (1994 & Supp. III 1997).

[2] Resource Conservation and Recovery Act of 1976, 42 U.S.C. §§ 6901-6992k (1994 & Supp. III 1997) (amending Solid Waste Disposal Act, Pub. L. No. 89-272, 79 Stat. 992 (1965)).

[3] Id. § 6943 (1994).

[4] Resource Inv., Inc. v. United States Army Corps of Engineers, 151 F.3d 1162, 1164 (9th Cir. 1998).

[5] Id. at 1164-65.

[6] 33 U.S.C. § 1344 (1994).

[7] 151 F.3d at 1165.

[8] Id. at 1168 (quoting § 404 of the Clean Water Act, 33 U.S.C. § 1344 (1994)).

[9] 33 C.F.R. § 323.2(c) (1998).

[10] 33 C.F.R. § 323.2(e) (1998).

[11] 151 F.3d at 1169.

[12] 33 C.F.R. § 320.1(a)(5) (1998).

[13] Letter from William R. Gianelli, Assistant Secretary of the Army for Civil Works, to William Ruckelshaus, Administrator, United States Environmental Protection Agency (Mar. 19, 1984).

[14] 151 F.3d at 1169.

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