Case 121

New Hanover Township v. United States Army Corps of Engineers, 796 F. Supp. 180 (E.D. Pa. 1992), vacated, 992 F.2d 470 (3d Cir. 1993).

A Pennsylvania township, a citizens' group, and a private individual sued the Army Corps of Engineers alleging that the Corps erroneously determined a company's actions qualified for a nationwide permit under the Clean Water Act. The company sought to use land within the township as a municipal waste landfill. Less than one acre of wetlands would be filled as part of the construction project. The Corps determined that the company could engage in construction under a nationwide permit, but informed it of the need to obtain a water quality certificate from the State before work began.

After determining that the case was ripe for review, the district court found the Corps had properly delineated jurisdictional wetlands, estimated on-site and off-site impacts, and determined that the historic significance of a neighboring property need not be considered at that particular stage of the permitting process. According to the court, the Corps had applied appropriate criteria in delineating the wetlands, relying more heavily on the soil study than the site's hydrology. The court found nothing inappropriate with the Corps' reliance on soil samples submitted by the permittee, since the Corps also used information provided by the local Soil Conservation Service and the State environmental resources department. Neither did the court find the Corps obligated to question the permittee's estimation of the amount of wetlands that must be filled in constructing the landfill. The applicant bore the risk of erroneously describing affected wetlands, the court explained. 796 F. Supp. at 185. The court also found nothing in the record to suggest that filling less than one acre of wetlands would have an adverse effect on wetlands located off the landfill site. The Corps was thus not obligated to investigate off-site effects.

As a final matter, the district court addressed plaintiffs' claim that the Corps had erred in not requiring the permittee to determine the project's effect on adjacent historic properties. The Corps took the position that, although it was aware of the potential existence of historic properties, it was not obligated to determine the project's impact on adjacent property at that time. According to the Corps, adverse effects should be considered if and when the applicant decided to construct a pipeline. Plaintiffs argued that, because the pipeline would almost certainly be built on the adjacent site, the Corps was improperly segmenting the permit process. The court disagreed, again noting that the applicant bore the risk of beginning construction without knowing if that pipeline could, indeed, be built. The Corps had also represented that it would later require the applicant to conduct a study of the effect of the pipeline on the historic property when the applicant got approval from the State, even if the final location of the pipeline was not determined. Id. at 187.

Plaintiffs appealed the district court decision, but the court of appeals found that the case was not ripe for review. The Corps' decision on the nationwide permit was not the final step leading to construction of the landfill; the applicant still needed to obtain State approval. The project would not proceed if the State did not issue the requisite water quality permit. The appellate court did note that several factors, such as the Corps' decision being the final position on the wetlands issue, suggested the case might be ripe because review of the Corps' decision would be a purely legal question. However, because the applicant still needed further approval from the State, the court decided the case was not yet ripe for review. Further, the court found that there would be no hardship to the parties if the court refused to hear the case because the State still may not issue the permit to the applicant. Harm was neither certain nor impending. 992 F.2d at 473. The court vacated the district court decision and remanded the case with instructions to dismiss it as unripe.

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