City of Alma v. U.S.

Full title: CITY OF ALMA and Bacon County, Georgia, Plaintiffs, v. The UNITED STATES…

Court: United States District Court, S.D. Georgia, Waycross Division

Date published: Aug 24, 1990

744 F. Supp. 1546 (S.D. Ga. 1990)

Opinion

Nos. CV589-51, CV582-98.

August 24, 1990.

J. Jimmy Boatright, M. Theodore Solomon, II, Solomon Edgar, Alma, Ga., James S. Stokes, Sydney S. Cleland, Robert D. Mowrey, Alston Bird, Atlanta, Ga., for plaintiffs.

W. Christian Schumann, U.S. Dept. of Justice, Land and Natural Resources Div., Environmental Defense Section, Washington, D.C., Henry L. Whisenhunt, Jr., Augusta, Ga., Ruth Bell, Catherine Winer, Water Div., U.S. Environmental Protection Agency, Washington, D.C., Edwin R. Schwartz, Asst. Regional Counsel, U.S. Environmental Protection Agency, Atlanta, Ga., for defendants.

ORDER

EDENFIELD, Chief Judge.

The case before the Court represents the culmination of nearly two decades of struggle on the part of the officials of Alma, Georgia, the plaintiffs in this action, to build a recreational lake, aptly named Lake Alma, in Bacon County. Almost since its inception, the project has been opposed by environmental groups, certain citizens, and a few federal agencies, particularly the Environmental Protection Agency ("EPA" or "the Agency"), one of the defendants here. The plaintiffs have hurdled numerous bureaucratic obstacles and endured four separate lawsuits in their effort to build the lake. In the action currently before the Court, the plaintiffs ask the Court to set aside yet another administrative roadblock: the decision of the EPA to restrict designation of the project area as a discharge site for dredged or fill material under section 404(c) of the Clean Water Act, an action which effectively prohibits construction of Lake Alma. City officials claim that the lake will be a boon to the area; the EPA dubs it a boondoggle. Now, the Court must decide, on cross-motions for summary judgment, which characterization is more accurate.

BACKGROUND

I. The Early Years

In 1968, the Department of Housing and Urban Development ("HUD") selected the city of Alma, Georgia to receive funds under the Model Cities Program. To use these funds effectively, city officials formulated a development plan consisting of four projects: 1) the improvement of Alma's industrial park, 2) the upgrade of water and sewage treatment facilities, 3) improvement of the airport, and 4) construction of a recreational lake to be named Lake Alma. Alma secured funding for the first three projects and eventually completed them.

In 1971, HUD funded a study to determine whether the construction of Lake Alma was feasible.¹ HUD's action prompted several Alma residents to commence a lawsuit the following year, asking that HUD be required to prepare an Environmental Impact Statement ("EIS") concerning the effects of the lake. See Deen v. Lynn, CV No. 861 (S.D.Ga. Sept. 20, 1973). The litigation eventually settled after HUD agreed to provide the EIS. HUD issued a draft in 1974, but it engendered much criticism and was subsequently withdrawn. Alma then assumed responsibility for preparing the impact statement.

1 The proposed site for the lake was in the Hurricane Creek drainage basin, within the lower Atlantic Coastal Plain, approximately 75 miles west of the Georgia coastline. The lake was to be seven miles long and a half mile wide. The project, as initially planned, would require 2,540 acres — 1,400 acres for the lake and the remainder for a buffer zone.

Alma submitted the EIS in March 1977, and the EPA and the United States Fish Wildlife Service ("FWS") objected to the lake on environmental grounds. Other opponents of the project brought suit to block HUD's release of funds for construction of the lake. See Hurricane Protective Soc'y v. Bacon County, CV No. 577-16 (S.D.Ga. March 25, 1977). On August 10, 1977, HUD decided to withhold the funds. The parties to the action subsequently agreed to stay the proceedings while Alma officials sought a permit from the United States Army Corps of Engineers ("the Corps") under section 404 of the Clean Water Act, 33 U.S.C. § 1344 (1988).² This case was dismissed in 1980 for want of prosecution.

2 This section reads in part:

(a) The Secretary may issue permits, after notice and opportunity for public hearings, for the discharge of dredged or fill material into the navigable waters at specified disposal sites. . ..

(b) Subject to subsection (c) of this section, each such disposal site shall be specified for each such permit by the Secretary (1) through the application of guidelines developed by the Administrator [of the EPA], in conjunction with the Secretary, which guidelines shall be based upon criteria comparable to the criteria applicable to the territorial seas, the contiguous zone, and the ocean under section 1343(c) of this title, and (2) in any case where such guidelines under clause (1) alone would prohibit specification of the site, through the application additionally of the economic impact of the site on navigation and anchorage. (d) The term "Secretary" as used in this section means the Secretary of the Army, acting through the Chief of Engineers.

Alma officials applied for a section 404 permit on August 31, 1977. The Corps' District Engineer recommended denial of the permit and referred the case to the Division Engineer. After an evaluation of the project site, the Division Engineer asked the District Engineer to reassess the permit application. The EPA Regional Administrator recommended that the permit be denied because the project did not conform with the EPA's section 404(b)(1) guidelines,³ or with the EPA's wetlands policy, and because it would have an adverse impact on water quality. The FWS also recommended denial of the permit, based primarily on the proposed lake's adverse effect on wildlife values.

3 These guidelines are found in 40 C.F.R. § 230 (1989) and are included in the Appendix to this Order. Those of particular significance to the case at hand are section 230.10(c) (restrictions on discharge of dredged or fill material; significant degradations of the waters of the United States), section 230.11(g) and (h) (determination of the cumulative and secondary effects of the discharge of dredged or fill material on aquatic ecosystems), section 230.31 (potential impacts on the biological characteristics of fish, crustaceans, mollusks, and other aquatic organisms in the food web), section 230.32 (potential impacts on the biological characteristics of other wild-life), and section 230.41 (potential impacts on wetlands).

In 1978, the FWS initiated a study to determine what mitigation would be necessary to offset the habitat losses resulting from construction of Lake Alma. The agency concluded that an estimated 7,246 acres of wooded swamp would have to be managed intensively to compensate for the total net wildlife loss incurred.⁴ Noting that complete compensation was impractical, the FWS formulated a mitigation plan. The plan required the construction of 194 acres of greentree reservoirs ("GTRs") which would be managed primarily for waterfowl. The GTRs, 14 discrete impoundments, would be allowed to fill with water and would be drawn down annually. An emergency access road was to be constructed and managed for wildlife diversity with grain crops planted on the right-of-way. In addition, the plan called for the selective clearing of 466 acres of wooded swamp and pine areas by prescribed burning and cutting of trees. The fields, pastures, and rights-of-way would undergo staged disking, seeding, and mowing. According to the FWS, implementation of this plan would provide the "minimum acceptable level of compensation" for the wildlife habitat lost as a result of the lake.

4 The FWS employed the Habitat Evaluation Procedures developed by it to determine the impacts of the project on wildlife resources. Representatives of the Corps and the Georgia Department of Natural Resources ("DNR"), as well as FWS officials, participated in the study.

Conditioned upon the employment of its mitigation plan, the FWS withdrew its objections to the project. The following year, the Corps' District Engineer recommended approval of the section 404 permit if the city implemented the mitigation plan. The Division Engineer concurred, and the Corps notified the EPA of its intention to issue the permit. The EPA requested that the permit be elevated to the department level for review, citing concerns that the mitigation plan did not adequately compensate for the loss of wetlands, that the GTRs would have an adverse impact on water quality, and that the GTRs themselves might require section 404 permits. The President's Council on Environmental Quality ("CEQ") voiced its opposition to the mitigation plan as well, stating that the plan calls for the destruction of 200 acres of wetlands in addition to those destroyed by the construction of the lake. The CEQ also noted that the mitigation primarily benefits one species, wood ducks, of particular interest to hunters, and fails to provide appropriate mitigation for the loss of aquatic life associated with the elimination of wetland vegetation.

Pursuant to the EPA's request for elevated review, the highest levels of the Department of the Army ordered that water quality studies be conducted at the project site. After considering the studies, the Assistant Secretary of the Army decided that the permit for Lake Alma should issue. In a letter dated October 9, 1981, EPA Administrator Anne M. Gorsuch responded:

The EPA staff has studied your report and agrees with the conclusion of the Army Corps that the released waters from the nearby greentree reservoirs that will flow into the proposed Lake Alma are not expected to adversely affect its water quality. This report, together with the results of previous analysis, satisfactorily answers the questions of the [EPA] and we conclude that the modified project will conform with the applicable federal environmental statutes and regulations.

On November 10, 1981, the Corps issued the permit for construction of Lake Alma. The permit stipulated the development of the FWS mitigation plan as a condition of issuance. HUD subsequently decided to release the funds for the construction of the lake, provided certain conditions were met.⁵

5 The conditions were: 1) the EIS would be reviewed and revised if necessary, 2) the project would primarily benefit low- and moderate-income persons, 3) the use of the lands acquired was in compliance with the applicable comprehensive open space plan, and 4) the project description remained unchanged from the most recently approved HUD application. HUD later waived the second condition on the ground that to do otherwise would result in undue hardship and would frustrate the purposes of the statute authorizing funding.

II. The 1983 Litigation

Several opponents of the Lake Alma project — the National Wildlife Federation, the Georgia Wildlife Federation, and the Hurricane Creek Protective Society, specifically⁶ — sued to enjoin HUD's release of funds. See National Wildlife Federation v. Marsh, CV No. 582-98 (S.D.Ga. Dec. 3, 1982). They specified a number of grounds for the injunction; only two of their contentions are relevant in the instant case, however. First, the project opponents claimed that Alma city officials or the Corps should have prepared a Supplemental Environmental Impact Statement ("SEIS") before the section 404 permit for the lake was issued or the funds released. According to the petitioners, the Corps' decision to forego preparation of a SEIS was unreasonable because the project had been modified since the submission of the EIS in 1977 by the adoption of the mitigation plan, and these modifications would have a significant environmental impact. Second, they contended that the Corps acted unlawfully by issuing a permit for the lake without first determining whether additional permits would be necessary for the GTRs, and, if the additional permits were needed, by issuing the lake permit without first issuing the permits for the mitigation plan.

6 Various owners of property that would be affected by the construction of the lake were also plaintiffs.

The district court refused to grant the injunction, Court Order, CV No. 582-98, dated March 3, 1983, and the petitioners appealed. Before the Eleventh Circuit and in the district court, the government argued that the Corps had acted lawfully. As to the SEIS issue, the government contended that the environmental impacts of the GTRs were no different, quantitatively or qualitatively, from the effects of the Lake Alma project as a whole; thus, a supplemental statement was unnecessary. In support of this contention, the government emphasized the EPA's conclusion that the GTRs would not adversely affect the water quality of the lake.

Pertaining to the Corps' decision to issue the lake permit without first determining whether construction of the GTRs would require separate authorization, the government referred to the Corps' regulation allowing the imposition of a mitigation plan as a condition subsequent to the permit for the project itself. The government discounted EPA's original view that the GTRs might require permits apart from Lake Alma permit and noted that the EPA eventually acquiesced in the Corps' conclusion that the GTRs could be built under a nationwide permit, see 33 U.S.C. § 1344(e), or under a permit processed after the lake was approved.⁷

7 In its appellate brief, the government also discounted the internal policy of the Corps which required that "permits for related activities should be applied for and resolved concurrently." March 1, 1979, DAEN-CWO-N Directive on Permit Procedures. It argued that this policy was irrelevant because of the separate policy allowing mitigation plans to be imposed after the Corps has issued the project permit. February 13, 1978, DAENO-CWO-N Letter. Brief for Appellee at 46-48, National Wildlife Fed'n v. Marsh, 721 F.2d 767 (11th Cir. 1983).

The Eleventh Circuit disagreed with both of the government's contentions. National Wildlife Federation v. Marsh, 721 F.2d 767 (11th Cir. 1983). First, the court held that the decision of the Corps to forego preparation of a SEIS was unreasonable. According to the court, the mitigation plan would alter the project site by requiring extensive burning, cutting, and flooding. Id. at 783. Such activities, the court said, clearly affect the environment. Id. Moreover, the plan was bound to have significant environmental impacts, the court noted, since several federal agencies, including the EPA, conditioned their approval of the lake on the plan's implementation. Id. at 783-84. Second, the court held that the Corps made a "clear error of judgment" by failing to determine whether the construction of the GTRs required separate permits before issuing the permit for the lake. Id. at 784. Most federal agencies agreed that the environmental soundness of the lake was conditioned upon implementation of the mitigation plan, but, because of the Corps' failure to determine whether GTR permits were necessary before authorizing the construction of the lake, Lake Alma could be built without the requisite mitigation in violation of federal law. Id. In addition, the court noted that the Corps' failure to decide whether permits were needed for the mitigation plan was contrary to its own internal procedures.⁸ Id. at 784-86.

8 See supra note 7. The court rejected the government's contention that the Corps' policy, authorizing mitigation plans as a condition subsequent to construction of a project, invalidated the standard procedure requiring consideration of related projects concurrently. According to the court, the record did not indicate that the Corps had developed a consistent condition subsequent procedure, and the usual policy should govern. 721 F.2d at 786.

Accordingly, the Eleventh Circuit reversed the decision of the district court and remanded the case. Subsequently, the district court adopted the decision of the appellate court and enjoined construction of Lake Alma pending fulfillment of two conditions: 1) submission of a SEIS documenting the environmental impacts of the mitigation plan, and 2) issuance of section 404 individual or nationwide permits for the GTRs. Court Order, CV No. 582-98, dated March 28, 1986.

III. The Aftermath

In early 1986, the EPA advised the Corps to evaluate the impacts of the overall Lake Alma project in the SEIS. The Corps issued a draft SEIS, and in its notice of public hearing concerning the Lake Alma permit, announced that it would accept comments on both the SEIS and the final EIS. In its comments on the draft, the EPA reaffirmed its opposition to the project and indicated that it would consider commencing proceedings under section 404(c)⁹ if the Corps proceeded with the permit issuance.

9 Section 404(c) of the Clean Water Act reads: The Administrator is authorized to prohibit the specification (including the withdrawal of specification) of any defined area as a disposal site, and he is authorized to deny or restrict the use of any defined area for specification (including the withdrawal of specification) as a disposal site, whenever he determines, after notice and opportunity for public hearings, that the discharge of such materials into such areas will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas. Before making such determination, the Administrator shall consult with the Secretary. The Administrator shall set forth in writing and make public his findings and his reasons for making any determination under this subsection.

In 1988, the Corps notified the EPA of its intent to issue a section 404 permit for the GTRs and to modify the 1981 lake permit requiring implementation of the mitigation plan. The EPA Regional Administrator then informed the Corps and city and county officials that he would initiate section 404(c) proceedings, proposing to prohibit or restrict the discharge of dredged or fill material at the project site. Thereafter, the EPA published notice of its proposal in the Federal Register, 53 Fed.Reg. 26,859 (1988), and held a public hearing. In response, the DNR and representatives from the city and county submitted comments espousing their support for the project. The DNR, claiming that the project site was not pristine or a particularly high quality habitat, emphasized the economic benefits of the lake, the increased fishery potential, and the aggressive waterfowl program set forth in the mitigation plan. Alma officials contended that the EPA could not address the original permit decision and that the administrative record lacked sufficient information to satisfy the legal standard for action under section 404(c).

On October 5, 1988, the EPA Regional Administrator issued a Recommended Determination proposing that the Agency withdraw specification of the Lake Alma site as a disposal area for the discharge of dredged or fill material under section 404(c). He further recommended that the EPA prohibit discharge in the areas designated for the GTRs. The matter was then placed in the hands of the Acting Administrator for Water, Rebecca W. Hanmer.¹⁰

10 On two previous occasions, Ms. Hanmer, in her capacity as the Agency's Region IV Administrator, had expressed opposition to the Lake Alma project — once in 1980 in a letter to Corps' District Engineer, and again in 1986 in a memorandum to the EPA Administrator.

Ms. Hanmer met with city and county officials, who voiced their opposition to the proposed agency action. Several days later, she issued the Final Determination of the EPA. The Agency restricted designation of Hurricane Creek as a discharge site for dredged or fill material associated with the construction of an impoundment, basing its decision on the proposed lake's "unacceptable adverse effects on wildlife." 33 U.S.C. § 1344(c). According to the EPA, the sites for Lake Alma and the mitigation plan provide important wildlife habitat which would largely be eliminated if the project were to go forward. In addition, construction of the lake would destroy an integral link in the forested wetland corridor which is largely undisturbed by major obstructions from Hurricane Creek, through the Alabaha and Satilla Rivers, to the Atlantic Ocean. In support of its conclusion, the EPA cited wildlife evaluations and surveys conducted by the Corps, the FWS, the DNR, the EPA, and individuals who used the Hurricane Creek area for recreational activities.

In response to the Agency's action, the city of Alma and Bacon County brought this action, seeking a declaratory judgment against the United States and the EPA that the section 404(c) restriction be deemed "arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with the law." 5 U.S.C. § 706(2)(A) (1988). They also moved to consolidate the instant case with National Wildlife Federation v. Marsh, CV No. 582-98 (S.D.Ga. Dec. 3, 1982), pursuant to Federal Rule of Civil Procedure 42(a), and requested an Order lifting the injunction, imposed by this Court on March 28, 1986, which prohibits the construction of Lake Alma until the satisfaction of certain conditions — namely, the preparation of a SEIS and the issuance of section 404 permits for the GTRs.

The EPA does not object to consolidation, and the Court hereby GRANTS that motion. The Agency does oppose the plaintiffs' motion to lift the injunction, however, claiming that its action under section 404(c) invalidates the permits issued by the Corps; thus, one of the conditions imposed by the Court has not been satisfied, and the injunction should remain in place. The EPA also argues that its action, restricting specification of the project area as a disposal site for the discharge of dredged or fill material, is supported by the administrative record and therefore is not arbitrary or capricious, and has moved for summary judgment on that ground.

The plaintiffs also have moved for summary judgment, claiming first, that the EPA is barred by the doctrine of judicial estoppel from rejecting the project. In addition, the plaintiffs contend that the Agency's action is arbitrary and capricious because it represents a departure from agency policy and precedent which has not been adequately explained and has insufficient support in the administrative record. The Court disagrees with both of the plaintiffs' contentions.

SUMMARY JUDGMENT

Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). Thus, if a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial," summary judgment should issue. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). In cases where the court is asked to review or enforce the decision of a federal administrative agency after evaluation of the record, summary judgment is particularly appropriate. 10A C. Wright, A. Miller M. Kane, Federal Practice and Procedure § 2733, at 366-67 (1983); see also Florida Fruit Vegetable Ass'n v. Brock, 771 F.2d 1455, 1459 (11th Cir. 1985).

ANALYSIS

I. Judicial Estoppel

The plaintiffs claim that the EPA is barred, under the doctrine of judicial estoppel, from asserting that Lake Alma is environmentally unacceptable because of the government's "unequivocal" support for the project during the 1983 litigation. According to the plaintiffs, the Eleventh Circuit relied on the government's former position in making its determination, and a reversal by the Agency at this juncture would work an injustice on the Court.

The doctrine of judicial estoppel is a "principle of fairness" employed to safeguard the integrity of the judicial process. 18 C. Wright, A. Miller E. Cooper, Federal Practice and Procedure § 4477 (1981 Supp. 1990) (hereinafter C. Wright); Reynolds v. Comm'r of I.R.S., 861 F.2d 469, 472 (6th Cir. 1988); Konstantinidis v. Chen, 626 F.2d 933, 937 (D.C. Cir. 1980). The requirements of the doctrine are "rather vague"; the primary concern of courts applying it is to avoid "unfairness and unseemliness." Patriot Cinemas, Inc. v. General Cinema Corp., 834 F.2d 208, 212 (1st Cir. 1987) (quoting 1A J. Moore, J. Lucas T. Currier, Moore's Federal Practice para. .405[8] (2d ed. 1984)); C. Wright, supra, at 780. The basis of the doctrine is that, absent a good explanation, "a party should not be allowed to gain an advantage by litigation on one theory, and then seek an inconsistent advantage by pursuing an incompatible theory." C. Wright, supra, at 782 (interpreting Scarano v. Central R. Co., 203 F.2d 510, 513 (3d Cir. 1953).

Judicial estoppel is directed toward those who would "play `fast and loose' with the courts," Scarano, 203 F.2d at 513, who blow "hot and cold as the occasion demands," Allen v. Zurich Insurance Co., 667 F.2d 1162, 1167 n. 3 (4th Cir. 1982), who use "intentional self-contradiction . . . as a means of obtaining an unfair advantage," Scarano, 203 F.2d at 513, and who engage in "cold manipulation" of the judicial system. Konstantinidis, 626 F.2d at 939; accord Chrysler Credit Corp. v. Rebhan, 842 F.2d 1257, 1261 (11th Cir. 1988). Courts do not employ the doctrine if no tribunal has been led astray:

The doctrine protects the integrity of the judicial process by preventing a party from taking a position inconsistent with one successfully and unequivocally asserted by the same party in a prior proceeding.

Reynolds, 861 F.2d at 472 (emphasis added); Konstantinidis, 626 F.2d at 939 ("success in the prior proceeding is clearly an essential element of judicial estoppel").

An example may help explain the doctrine. In Patriot Cinemas, Inc. v. General Cinema Corp., 834 F.2d 208, the plaintiff, an operator of a local movie theater chain, brought an action in state court charging the defendant, a national theater chain, with violations of state law including the state antitrust statute. The defendant removed the action to federal court, contending that the plaintiff's claims were actually federal antitrust claims in disguise. After removal, the defendant moved for dismissal without prejudice under the doctrine of derivative jurisdiction.¹¹ The district court, in agreement with the defendant's arguments, dismissed the case without prejudice and refused to remand it. The plaintiff moved for reconsideration and submitted an amended complaint, which omitted the antitrust count, with the motion. The court also denied this motion, and the plaintiff appealed.

11 This doctrine states that a federal court does not have removal jurisdiction over a claim that the state court lacked jurisdiction to decide in the first place. Id. at 210 (quoting Pueblo Int'l, Inc. v. Reichard De Cardona, 725 F.2d 823, 828 (1st Cir. 1984).

While the appeal was pending, the plaintiff filed a new complaint, without the antitrust claim, in state court. The defendant requested that the state court stay the proceedings while the appeal on the first action was ongoing, arguing that allowing the state action to proceed could result in duplicative discovery. In opposition to the motion, the plaintiff stated that it would not pursue the antitrust claim, regardless of the outcome of the federal appeal. The state court refused to stay the proceeding.

The defendant then filed a motion to dismiss the federal appeal on the ground of mootness. The defendant argued, first, that the plaintiff was bound by its representation to the state court that it would abandon the antitrust claim. Next, the defendant asserted that, since the plaintiff was bound, the dispute about whether the antitrust claim should have been remanded rather than dismissed was moot. Last, argued the defendant, since the issue as to the antitrust claim was moot, the entire appeal should be abandoned because the pending state suit involved claims identical to the ones presented in the federal case. In opposition to this motion, the plaintiff renounced its representation that it would not prosecute the antitrust claim, stating that, "if developments in the litigation [made] it appropriate," it would pursue the claim.

The First Circuit concluded that the plaintiff's behavior warranted application of judicial estoppel. The court noted that the plaintiff had made a tactical choice to abandon the antitrust claim and had received the advantage it sought — the state court refused to stay its proceedings. Then, after inducing the state court to rely on its position, the plaintiff reversed itself in federal court in an attempt to receive a favorable disposition there. According to the court, the plaintiff's "self-serving self-contradiction" was exactly the type of behavior the doctrine of judicial estoppel was meant to restrain. Id. at 213.

Despite the concerns about intentional inconsistency, courts have recognized that a party may have reasonable grounds for changing positions. The interests of public policy, for example, may justify a reversal, even if the change would be deemed inappropriate as a matter of private interests. C. Wright, supra, at 784. In light of the interests of public policy, courts are "very reluctant" to apply estoppel doctrines against the government, Reynolds, 861 F.2d at 474; Heckler v. Community Health Services, 467 U.S. 51, 60, 104 S.Ct. 2218, 2224, 81 L.Ed.2d 42 (1984), especially when the action seeking to be estopped was taken by the government in its sovereign role. United States v. City of Menominee, 727 F. Supp. 1110, 1121 (W.D.Mich. 1989) (EPA exercises sovereign power when enforcing the Clean Water Act) (citing Housing Auth. of Elliott County v. Bergland, 749 F.2d 1184, 1190 (6th Cir. 1984)). Courts have therefore required that a party asserting estoppel against the government must show that the government engaged in affirmative misconduct. United States v. Asmar, 827 F.2d 907, 912 (3d Cir. 1987) (citations omitted).

The case currently before the Court does not warrant application of judicial estoppel. First, the behavior of the EPA in this case is not akin to "playing fast and loose" with the Court. In the 1983 litigation, the government supported funding for the Lake Alma project, asserting that the preparation of a SEIS was unnecessary and that the necessity for GTR permits could be determined subsequent to the issuance of the permit for the lake. The Eleventh Circuit flatly rejected the government's position on both issues and enjoined construction of the lake until the SEIS was drafted and the GTR permits considered. In the instant case, the government admits that its position on the lake has changed since the previous litigation but explains this divergence as the result of re-evaluation of the project. According to the Agency, its change in position does not amount to manipulation of the judicial system and, if adopted by the Court, would not grant the EPA an unfair advantage. The Court find the EPA's argument persuasive. Unlike the cases in which courts have applied judicial estoppel, no judicial body in this litigation has been misled by the EPA or relied on the Agency's position, to the detriment of the system, when making a judgment.

Further, as noted previously, the Court is extremely reluctant to estop the Agency from enforcing the law. "When the Government is unable to enforce the law because the conduct of its agents has given rise to an estoppel, the interest of the citizenry as a whole in obedience to the rule of law is undermined." Asmar, 827 F.2d at 912 (quoting Heckler v. Community Health Services, 467 U.S. at 60, 104 S.Ct. at 2224). The EPA has been delegated the responsibility of enforcing the Clean Water Act and protecting the public interest in this regard. Effective safeguarding of the public interest sometimes may require a change in outlook. Moreover, the plaintiffs have not alleged that the EPA engaged in affirmative misconduct, a necessary prerequisite for the Agency to be estopped. Asmar, 827 F.2d at 912.

Because the plaintiffs have not demonstrated that the EPA reversed itself in an attempt to manipulate the judicial process and gain an unfair advantage at the expense of the system, the Court will not estop the government from altering its stance.¹²

12 Eagle Found., Inc. v. Dole, 813 F.2d 798 (7th Cir. 1987), a case factually analogous to the one at bar, supports the Court's resolution of this issue. In Eagle Foundation, a private citizens group filed an action to permanently enjoin construction of a federally-funded highway through a historic site. In the course of a prior lawsuit, a lawyer representing the Secretary of Transportation stated that the Department would avoid constructing the highway so as to destroy the site. Despite the Department's representations, the district court enjoined construction. The government then re-studied potential routes for the highway and found that the other possibilities were dangerous to drivers. Contradicting her earlier position, the Secretary decided to construct the road through the historic site. In the subsequent litigation, the citizens group argued that the Secretary was estopped from abandoning her position in the previous proceeding. The court refused to apply judicial estoppel, stating first, that the government had not prevailed in the prior action — the district court enjoined the highway construction — and second, that the government had presented adequate reasons for its change of mind.

II. Arbitrary and Capricious

Under the Administrative Procedure Act, 5 U.S.C. § 551-559, 701-706, 1305, 3105, 3344, 6362, 7521 (1988), agency action must be set aside if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law," or if it fails to meet statutory, procedural, or constitutional requirements. Id. § 706(2)(A) — (D); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 414, 91 S.Ct. 814, 822-23, 28 L.Ed.2d 136 (1971). This standard of review is "highly deferential," Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897, 904 (5th Cir. 1983), and the agency's decision is presumed to be valid. Overton Park, 401 U.S. at 415, 91 S.Ct. at 823; Ethyl Corp. v. EPA, 541 F.2d 1, 34 (D.C. Cir. 1976) (en banc).

Despite the deference accorded to the agency, the "arbitrary and capricious" standard requires that the court "immerse" itself in the evidence in the record, Ethyl Corp., 541 F.2d at 36, and conduct a "thorough, probing, and in-depth review." Overton Park, 401 U.S. at 415, 91 S.Ct. at 823. To be upheld, the agency must have "examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a rational connection between the facts found and the choice made." Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866-67, 77 L.Ed.2d 443 (1983) (quoting Burlington Truck Lines, Inc. v. U.S., 371 U.S. 156, 168, 83 S.Ct. 239, 245-46, 9 L.Ed.2d 207 (1962)). The court will find an agency action to be arbitrary if

the agency relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that was counter to the evidence before the agency, or is so implausible that it would not be ascribed to a difference in view or the product of agency expertise.

State Farm, 463 U.S. at 43, 103 S.Ct. at 2867.

Thus, where the agency has avoided these pitfalls, its decision is to be accorded deference. The court is not to act as a "superagency," substituting its judgment for that of the agency expert decisionmaker, but must affirm decisions it may disagree with as long as the agency has acted within the law. Ethyl Corp., 541 F.2d at 36; Baltimore Gas Elec. Co. v. NRDC, 462 U.S. 87, 105, 103 S.Ct. 2246, 2256, 76 L.Ed.2d 437 (1983); Bowman Transp. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 441-42, 42 L.Ed.2d 447 (1974); Overton Park, 401 U.S. at 416, 91 S.Ct. at 823-24; see also American Petroleum Inst. v. EPA, 661 F.2d 340, 349 (5th Cir. Unit A 1981) ("agency's decision need not be ideal or even, perhaps, correct . . .").

In the case at hand, the plaintiffs contend that the EPA's action under section 404(c) is arbitrary and capricious for several reasons. First, they assert that the action violates stated Agency policy. Next, they claim that the EPA's action is inconsistent with its other actions in similar situations. Last, the plaintiffs contend that the decision lacks sufficient support in the administrative record. The Court will consider each of these contentions in turn.

A. Violation of Agency Policy and Precedent

1. EPA Policy

Before delving into the specifics of this case, an overview of the relevant statutory and regulatory framework is necessary. Congress passed the Federal Water Pollution Control Act, commonly referred to as the Clean Water Act, in 1948. 33 U.S.C. § 1251-1325, 1341-1345, 1361-1376 (1988) ("CWA" or "the Act"). The Act's objective is lofty — "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters," 33 U.S.C. § 1251(a) — and its provisions set forth a comprehensive program for controlling and abating water pollution. Train v. City of New York, 420 U.S. 35, 37, 95 S.Ct. 839, 841, 43 L.Ed.2d 1 (1975). Congress delegated responsibility for administering the Act to the EPA. 33 U.S.C. § 1251(d). As part of the plan, Congress included a permit program in the statute to regulate those who wished to discharge "pollutants" into "navigable waters."¹³ Under section 404(a) and (b) of the Act, 33 U.S.C. § 1344(a) and (b), the Secretary of the Army can issue, subject to guidelines established by the EPA, permits for the discharge of dredged or fill materials.¹⁴ The EPA, however, retains authority to prohibit such discharge "whenever [the Administrator] determines . . . that [the] discharge . . . will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or public recreational areas." 33 U.S.C. § 1344(c).¹⁵

13 As defined in the statute, "pollutant" means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water. 33 U.S.C. § 1362(6). The term "navigable waters" means the waters of the United States, including the territorial seas. Id. § 1362(7).

14 See supra note 2 for the language of the provision.

15 Section 404(b)(1) guidelines, established by the EPA and set forth in 40 C.F.R. § 230, provide substantive criteria by which the acceptability of a proposed discharge is to be judged. See 40 C.F.R. § 231.2(e) (1989).

Pursuant to its statutory authority, the EPA established procedures to be used when it contemplates action under section 404(c). The preamble to the EPA's proposed rule states the following:

The section 404(c) authority may be exercised before a permit is applied for, while an application is pending, or after a permit has been issued. . . . It is expected that this provision will be used infrequently, since it is EPA's policy to try and resolve environmental problems before permits are issued.

44 Fed.Reg. 14,578 — 14,579 (1979). Later, in discussing the comments to its rule, the EPA explained:

[The] EPA feels an important distinction should be drawn between the Agency's right to use 404(c) after issuance and its choice to do so. The statute on its face clearly allows EPA to act after the Corps has issued a permit; it refers twice to the "withdrawal of specification," which clearly refers to action by EPA after the Corps has specified a site (e.g. issued a permit or authorized its own work). On the other hand, EPA recognizes that where possible it is much preferable to exercise this authority before the Corps or state has issued a permit, and before the permit holder has begun operations.

44 Fed.Reg. 58,077 (1979). The Agency further stated:

Nonetheless, one can anticipate that there will be circumstances where it may be necessary to act after issuance in order to carry out EPA's responsibilities under the Clean Water Act. . . . The regulations do not restrict EPA's right to act after a permit has been issued. . . . EPA agrees with the suggestion that it would be inappropriate to use 404(c) after issuance of a permit where the matters at issue were reviewed by EPA without objections during the permit proceeding, or where the matters at issue were resolved to EPA's satisfaction during the permit proceeding, unless substantial new information is first brought to the Agency's attention after issuance.

Id.

The plaintiffs allege that the Agency's action regarding Lake Alma violates the above-quoted policy. Pointing to the 1981 letter written by then Administrator Gorsuch in which the Agency declined to request elevated review of the lake permit, they argue that use of section 404(c) after issuance was inappropriate because the EPA's concerns were satisfied during the permit proceeding. Further, the EPA has not received new information since the permit issuance to justify its decision, the plaintiffs contend, and did not rely upon such information when acting to restrict specification of the Lake Alma site. Last, the plaintiffs suggest that the actual reason for the EPA's action is the longstanding bias of Agency officials, specifically, Acting Administrator for Water Rebecca Hanmer, against the lake project.

The EPA, of course, vigorously disputes each of the plaintiffs' contentions. The Agency argues that the stated policy is inapplicable to the Lake Alma situation because the Eleventh Circuit invalidated the issuance of the 1981 permit in its 1983 decision. Moreover, the Agency contends, even if the permit had been validly issued, the EPA policy expressly states that the Agency retains the right, accorded to it by Congress, to initiate section 404(c) proceedings at any time. Last, the EPA refutes the plaintiffs' claim that Agency officials were biased against the project and that this alleged bias played any role in its section 404(c) decision.

a. EPA's Construction of its Policy Statement.

Much of the dispute concerning the applicability of EPA policy focuses upon the scope and effect of the Eleventh Circuit's opinion in National Wildlife Federation v. Marsh, 721 F.2d 767 (11th Cir. 1983). In Marsh, the appellate court held that the issuance of the 1981 permit was unlawful because the Corps had not prepared a SEIS concerning the environmental impacts of the mitigation plan and had not determined the necessity of GTR permits before issuance of the lake permit. Id. at 784-86. Accordingly, the court invalidated the permit issuance and enjoined construction of the lake.

Given the Eleventh Circuit's holding that the permit was unlawfully issued, the plaintiffs' argument that the EPA's action under section 404(c) is a violation of policy is unavailing. First, the EPA policy explicitly states that the Agency has the authority to initiate proceedings at any time, including after a permit has been issued. This policy is consistent with the CWA which grants the Agency the power to act "whenever" it determines that a discharge will have unacceptable adverse effects. See 33 U.S.C. § 1344(c); 44 Fed.Reg. 14,578 and 58,077. The Court must be deferential to the Agency's construction of a statute it is entrusted to administer if the construction is reasonable and does not conflict with congressional intent. United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 131, 106 S.Ct. 455, 461, 88 L.Ed.2d 419 (1985); Chevron, Inc. v. NRDC, 467 U.S. 837, 844, 104 S.Ct. 2778, 2782-83, 81 L.Ed.2d 694 (1984); Southern Motor Carriers Rate Conf. v. United States, 773 F.2d 1561, 1567 (11th Cir. 1985).¹⁶ Here, the EPA's regulations permitting section 404(c) action after permit issuance, and its action pursuant to them, are consistent with the intent of Congress expressed in the CWA.

16 Not only is a reviewing court "required to defer to any reasonable EPA construction of its enabling statutes," but even greater deference is in order when a court is reviewing the Agency's interpretations of its own regulations. Texas Mun. Power Agency v. Administrator of EPA, 836 F.2d 1482, 1488 (5th Cir. 1988) (citing Udall v. Tallman, 380 U.S. 1, 16-17, 85 S.Ct. 792, 801-02, 13 L.Ed.2d 616 (1965)); see also Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897, 910 n. 27 (5th Cir. 1983); National Ass'n of Regulatory Util. Comm'rs v. FCC, 746 F.2d 1492, 1499 (D.C. Cir. 1984).

Moreover, the EPA construes its policy, cited by the plaintiffs as prohibiting the Agency's section 404(c) action¹⁷, to be inapplicable here. As noted above, the EPA stated, in the preamble to its regulations, that it would avoid initiating section 404(c) proceedings after a permit has been issued. According to the Agency, the phrase "after a permit has been issued" means "after a permit has been validly issued." Thus, because the Eleventh Circuit found the issuance of the Lake Alma permit to be unlawful, the EPA interprets this policy to be inapplicable in this situation.

17 The policy referred to by the plaintiffs provides that the use of section 404(c) after issuance of a permit, where the matters concerning the Agency were resolved to its satisfaction during the permit proceeding, would be inappropriate unless substantial new information is first brought to the EPA's attention after permit issuance. 44 Fed.Reg. 58,077 (1979).

An agency's construction of its own regulations is entitled to heightened deference if the interpretation is reasonable, regardless of whether the court would have arrived at the same interpretation independently. Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 566, 100 S.Ct. 790, 797, 63 L.Ed.2d 22 (1980); Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965); Avoyelles Sportsmen's League, 715 F.2d at 910 n. 27. The agency's construction may be discounted "only if clearly unreasonable," Kahlenberg v. INS, 763 F.2d 1346, 1349 (1985), vacated on other grounds, 796 F.2d 1327 (11th Cir. 1986), or "if plainly erroneous or inconsistent with the language and purposes of the regulation." Parker v. Bowen, 788 F.2d 1512, 1518 (11th Cir. 1986) (en banc) (citing United States v. Larionoff, 431 U.S. 864, 872, 97 S.Ct. 2150, 2155-56, 53 L.Ed.2d 48 (1977)). In this case, the EPA's construction of its regulatory policy is not "clearly unreasonable" or "plainly erroneous." Nor is it "inconsistent with the language and purposes of the regulation." Accordingly, the Court must defer to it. This finding is supported by the fact that the Agency initiated section 404(c) proceedings before construction of Lake Alma had begun.¹⁸

18 In their arguments concerning the Agency's alleged violation of policy, the plaintiffs contend that the section 404(c) action was improper because EPA officials had not received substantial new information and had had their concerns about the lake resolved before the permit issuance in 1981. Given the Court's determination that the Agency policy at issue is inapplicable to the Alma project, the Court need not address these contentions.

b. Alleged Bias of an Agency Official

As for the plaintiffs' contention that the alleged bias of the EPA Administrator for Water Rebecca Hanmer against the Lake Alma project was the actual reason for the Agency's action, this issue merits little discussion. Agency officials are presumed to conscientiously review the matters that come before them, particularly when the agency makes a considered decision upon a full administrative record. Organized Fishermen v. Watt, 590 F. Supp. 805, 811 (S.D.Fla. 1984.), aff'd, 775 F.2d 1544 (11th Cir. 1985); Hercules, Inc. v. EPA, 598 F.2d 91, 123 (D.C. Cir. 1978). Courts generally will not "probe the mental processes" of administrators; those challenging agency action must make a "strong showing" of bad faith or improper behavior before the court will undertake such an inquiry. Hercules, 598 F.2d at 123; Feller v. Board of Educ., 583 F. Supp. 1526, 1528 (D.Conn. 1984) (citations omitted). Further, familiarity with the facts of a case, gained by an agency when performing its statutory role, does not disqualify the agency decisionmaker on the ground of predisposition. Hortonville Joint School Dist. v. Hortonville Educ. Ass'n, 426 U.S. 482, 493, 96 S.Ct. 2308, 2314, 49 L.Ed.2d 1 (1976); Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 1464-65, 43 L.Ed.2d 712 (1975); FTC v. Cement Inst., 333 U.S. 683, 700-03, 68 S.Ct. 793, 92 L.Ed. 1010 (1948). Moreover, the agency official is not deemed unfit to perform her statutory duty merely because she previously has taken a position on issues related to the case before her, even if she has expressed her opinion publicly. Hortonville, 426 U.S. at 493, 96 S.Ct. at 2314; United States v. Morgan, 313 U.S. 409, 421, 61 S.Ct. 999, 1004, 85 L.Ed. 1429 (1941).

In the case at hand, the plaintiffs point to two instances when Ms. Hanmer expressed her opposition to the Lake Alma project — in 1980 in a letter to the Corps and in 1986 in a memorandum to the EPA Administrator. As the above discussion of the relevant caselaw indicates, the plaintiffs must make a strong showing of improper behavior or bad faith to rebut the presumption of conscientious review on the part of Ms. Hanmer and the Agency. The evidence presented here is woefully insufficient to meet this burden.

2. EPA Precedent

The plaintiffs also contend that the EPA's section 404(c) action is arbitrary because it is inconsistent with previous decisions on the part of the Agency respecting this project and one other. Specifically, the plaintiffs refer to the Agency's 1981 decision not to seek further Corps review of the Lake Alma permit, and the Agency's determination not to initiate section 404(c) proceedings regarding Lake Frank Jackson, an Alabama project similar to Lake Alma. The Court determines, however, that these alleged inconsistencies do not render the EPA's action arbitrary.

As the Fifth Circuit stated in American Petroleum Institute v. EPA, 661 F.2d 340, 355 (5th Cir. Unit A 1981), "Nothing in the [Administrative Procedure Act] prohibits the agency from changing its mind, if that change aids it in its appointed task." Accord Moon v. Secretary of Labor, 747 F.2d 599, 604 (11th Cir. 1984); Illinois Bell Tel. Co. v. FCC, 740 F.2d 465, 470 (7th Cir. 1984) ("there is no principle that enjoins perfect consistency" on the part of an agency) (citations omitted). An agency is not forever bound by its prior determinations, as its view of what is in the public interest may change, even if the circumstances do not. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 57, 103 S.Ct. 2856, 2873-74, 77 L.Ed.2d 443 (1983); McHenry v. Bond, 668 F.2d 1185, 1192 (11th Cir. 1982); Orleans Audubon Soc'y v. Lee, 742 F.2d 901, 907 (5th Cir. 1984); Creppel v. United States Army Corps of Eng'rs, 670 F.2d 564, 571 (5th Cir. 1982); Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C. Cir. 1970).¹⁹ If the agency gives a reasoned explanation for its altered stance or departure from precedent, one which explains "why the new [position] effectuates the [relevant] statute as well or better than the old," the court should uphold the agency's decision. New York Council Ass'n of Civ. Technicians v. Federal Labor Relations Auth., 757 F.2d 502, 508 (2d Cir. 1985) (citations omitted); see State Farm, 463 U.S. at 57, 103 S.Ct. at 2873-74; McHenry, 668 F.2d at 1192; Greater Boston Television, 444 F.2d at 852.

19 Even if a change in agency position coincides with a change in agency leadership, the court should not depart from its traditional, deferential standard of review. Orleans Audubon Soc'y, 742 F.2d at 907; cf. Organized Fishermen v. Watt, 590 F. Supp. 805, 811 (S.D.Fla. 1984) (agency officials credited with conscientious review of issues), aff'd, 775 F.2d 1544 (11th Cir. 1985).

The EPA concedes that its position concerning Lake Alma has changed since former Administrator Gorsuch waived her right to further Corps review of the project in 1981. The Agency argues, however, that this reversal does not make its section 404(c) action arbitrary because, as the Eleventh Circuit noted in Marsh, the EPA had not focused upon the degree of mitigation provided by the Alma plan before the 1983 litigation. 721 F.2d at 782. The appellate court's invalidation of the lake permit gave the Agency the opportunity to re-evaluate the adequacy of the mitigation plan, and the EPA accordingly determined that the plan did not sufficiently compensate for wildlife and habitat losses and concluded that the project was not in the public interest. These reasons sufficiently explain the EPA's change of position, and the Court will not overturn the Agency's action on this basis. See American Petroleum Inst., 661 F.2d at 354-55 (EPA's determination that a reclassification of oil and gas wells under the CWA would benefit the environment, although the change represented a reversal of its prior position, was within the Agency's discretion and not arbitrary).

In addition, the Agency's section 404(c) action is not rendered arbitrary by its decision to allow the construction of Lake Frank Jackson. When an agency is alleged to have departed from prior precedent or decisions, it must either distinguish or rationally explain its departure. Acadian Gas Pipeline Sys. v. FERC, 878 F.2d 865, 868 (5th Cir. 1989); State of Texas v. United States, 866 F.2d 1546, 1556-57 (5th Cir. 1989); Professional Airways Sys. Specialists v. Federal Labor Relations Auth., 809 F.2d 855, 860 (D.C. Cir. 1987). Here, although the EPA admits that the two projects are functionally similar, it emphasizes that they have some fundamental differences which justify differential treatment. First, Lake Jackson would have inundated only one-half to two-thirds the amount of wooded swamp as Lake Alma. Second, the Alabama project provided for 7,000 acres of mitigation designed to replace the same type of habitat flooded during the creation of the lake. In contrast, the Lake Alma plan called for only 194 acres of mitigation managed primarily for one type of species already plentiful in the project area and for the enhancement of 714 acres with a habitat of a different type than the one destroyed. The Court finds that these reasons are sufficient explanation for the Agency's different treatment of the two projects.

Moreover, the CWA grants the EPA wide discretion to employ section 404(c) as it deems appropriate. See 33 U.S.C. § 1344(c). As the Agency noted in the administrative record, its decision to initiate proceedings under this section requires a fact-specific inquiry and evaluation of factors unique to the specific project in question. Despite the certain basic similarities between Lake Frank Jackson and Lake Alma, the EPA has distinguished satisfactorily its decision in the present matter from that concerning the Alabama project.

B. Sufficiency of the Record

The plaintiffs' final contention is that the EPA's decision to prohibit the construction of Lake Alma under section 404(c), based on the project's "unacceptable adverse effect" on wildlife, is not supported by the administrative record. As discussed previously, the Court must search the record thoroughly to determine if the evidence contained therein supports the Agency's action. Avoyelles Sportsmen's League, 715 F.2d at 904-05; Ethyl Corp. v. EPA, 541 F.2d 1, 36 (D.C. Cir. 1976) (en banc). Although the review is substantial, its only purpose is to determine whether the Agency considered relevant factors and articulated a satisfactory explanation for its decision. State Farm, 463 U.S. at 43, 103 S.Ct. at 2866; Baltimore Gas Elec. Co. v. NRDC, 462 U.S. 87, 105, 103 S.Ct. 2246, 2256, 76 L.Ed.2d 437 (1983); Bowman Transp. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 441, 42 L.Ed.2d 447 (1974); Organized Fishermen v. Hodel, 775 F.2d 1544, 1550 (11th Cir. 1985). The Court may not second guess the EPA's finding if it is plausible and consistent with the evidence, even if the evidence is strong on both sides and reasonable minds could differ as to the right result. State Farm, 463 U.S. at 43, 103 S.Ct. at 2866-67; Baltimore Gas, 462 U.S. at 105, 103 S.Ct. at 2256; B. Schwartz, Administrative Law § 10.9, at 602 (1984).

In its Final Determination, the EPA restricted the discharge of dredged or fill material, for the purpose of creating a reservoir, lake, or impoundment, at the proposed Lake Alma site. The Agency found that the project would result in the destruction and loss of vegetated wetland habitat in the Hurricane Creek bottomland hardwood wetland system and would adversely affect the ability of the forested wetland floodplain to act as a travel corridor for the movement and migration of wildlife. Thus, according to the Agency, the project would have an unacceptable adverse effect²⁰ on wildlife under section 404(c) and the relevant EPA guidelines. 40 C.F.R. § 230.²¹

20 Under 40 C.F.R. § 231.2(e), an "unacceptable adverse effect" is:

[I]mpact on an aquatic or wetland ecosystem which is likely to result in significant degradation of municipal water supplies (including surface or groundwater) or significant loss of or damage to fisheries, shellfishing, or wildlife habitat or recreational areas. In evaluating the unacceptability of such impacts, consideration should be given to the relevant portions of the section 404(b)(1) guidelines.

Id. Certain pertinent sections of the EPA guidelines are set forth in the Appendix to this Order.

21 The plaintiffs argue that the EPA should be able to evaluate the effects of the proposed mitigation plan only, rather than the impact of the overall project, because the permit for the lake itself is "extant" and approved by the Agency. Accordingly, the plaintiffs contend that, to be upheld, the EPA must show that the mitigation itself would have an unacceptable adverse effect on wildlife. Given the Court's determination that the EPA is not barred, by judicial estoppel or its own policy and practice, from re-evaluating the environmental acceptability of the overall project, it need not address the issue whether the mitigation plan in isolation has unacceptable adverse effects on wildlife.

The plaintiffs contend that the EPA's finding of unacceptable adverse effects has insufficient support in the record for several reasons. First, they emphasize that most other agencies involved with the project, specifically, the FWS, the Corps, and the DNR, have approved or withdrawn their objections to Lake Alma. The EPA's solitary²² opposition to the project is allegedly arbitrary and ignores the views of these other agencies. Second, the plaintiffs allege that the EPA relied on speculative and unreliable information in making its decision. Finally, according to the plaintiffs, the EPA based its section 404(c) decision on factors other than the project's potential effects on wildlife. The Agency's reliance on factors such as the loss of wetlands and the degradation of water quality, the plaintiffs claim, is impermissible under the statute.

22 Actually, the EPA is not the only agency to consistently oppose the lake. The CEQ also has voiced its continued opposition to the project throughout the permit process. See Letter to HUD, dated July 22, 1974; Letter to mayor of Alma, dated June 10, 1977; Letter to Office of Federal Activities, EPA, dated November 15, 1979.

1. Disagreement with Other Agencies

The EPA acknowledges that other federal and state agencies support the Lake Alma project but denies that this divergence of opinion suggests that its decision is arbitrary. The FWS initially objected to Lake Alma as environmentally unsound, but later formulated a mitigation plan for the project and agreed to withdraw its objections if the plan were implemented. In its comments, submitted during the public hearing on the EPA's proposed action under section 404(c), the FWS described the mitigation plan as providing the "minimum acceptable level of compensation for wildlife habitat losses" resulting from the construction of the lake.

The Corps also approved the project. Although claiming that the importance of the wetlands at issue had been exaggerated by the EPA, the Corps acknowledged that the project would have some adverse effects on wildlife. It concluded, however, that there was "a great need" for the lake and accepted the judgment of the FWS that the mitigation plan provided adequate compensation for wildlife and habitat losses.

The DNR has been the most steadfast and vigorous agency supporter of Lake Alma. Stating that Hurricane Creek is not a diverse or unique habitat in Bacon County, the DNR regards the project and its mitigation as in the public interest and consistent with other DNR programs, such as the construction of waterfowl impoundments, the provision of public fishing lakes, and the distribution of wood duck boxes statewide. Dismissing the loss of wetlands as "regionally insignificant," the DNR claims that the new type of habitat created by the lake will be more "stable" than that currently existing in the Hurricane Creek area.²³

23 In this regard, the DNR points to the assessment of the project site by biologist Richard Macomber who labeled the area a "biological desert." Plaintiffs' Exhibit 5, Report of Corps District Engineer, dated February 28, 1978.

The EPA has addressed the positions of each of the above-named agencies in the administrative record. Pointing to the FWS Mitigation Study, the EPA refutes that agency's assertion that the plan provides adequate compensation. According to the study, an estimated 7,246 acres of wooded swamp, intensively managed, would be required to fully compensate for the total estimated net wildlife loss incurred as a result of the project. The proposed plan calls for only 194 acres of mitigation and the enhancement of 714 acres of upland habitat — a different type of habitat than the one destroyed by the construction of the lake.²⁴ Moreover, implementation of the proposed plan would compensate for only 13% of the wetland habitat lost and 26% of the total habitat lost²⁵ — a degree of compensation deemed inadequate by the EPA.²⁶

24 In contrast, the Lake Frank Jackson project, functionally similar to Lake Alma, provided for 7,000 acres of managed mitigation which was designed to replace the type of habitat lost.

25 According to the FWS Study, construction of the lake without any mitigation would result in a loss of 36,347 habitat units. With mitigation, the number of habitat units lost is 26,735, a total offset of 26%.

26 In addition to the EPA, the CEQ also found the FWS mitigation plan unacceptable. In its analysis of the proposed mitigation, the CEQ stated that the plan failed to compensate for the destruction of wetlands, failed to provide appropriate mitigation for the loss of aquatic life associated with the elimination of wetland vegetation, caused the destruction of 200 additional acres of wetlands, beyond that lost as a result of the lake alone, to provide habitat for a few game species, and provided procedures to benefit one species primarily, namely, waterfowl. The CEQ also suggested that the Corps had "uncritically and erroneously" relied on the FWS plan without extensively evaluating its actual merit.

The EPA also disputes the Corps' characterization of the project site as unimportant. In support of its position, the EPA refers to the Corps' 1978 Field Investigation Report, written by a team of experts dispatched to the Lake Alma site to evaluate the wetland habitat. After studying the vegetation, soil, and water quality at the project site, the team found the Hurricane Creek area to be a productive habitat with special significance because it provides a "vegetated corridor in which wildlife may feed, reproduce, and take refuge." The team noted that the site's use as a corridor was accentuated by its location — the surrounding area was urban, agricultural, or pine plantation and provided little to poor wildlife habitat. After conducting on-site observations and a review of the literature, the team rated the carrying capacity of the Hurricane Creek bay and branch habitat area as fair to good for all amphibians and reptiles, good to excellent for most species of mammals, and fair to good for most bird species. The report stressed the importance of amphibians and reptiles as significant links in the creek-swamp ecosystem food chain. In summary, the team stated the following:

Water level fluctuation and the diversity of habitat provided in the creek swamp environment is conducive to producing stable aquatic and detrital food chains capable of supporting various species of game and fish. These hardwood creek-swamps provide corridors along which various animals may migrate to repopulate decimated areas. The nutrients and water supplied to adjoining rivers by the creek-swamp are eventually delivered to marine bays and estuaries and are very significant as they may affect productivity of commercial and sport fisheries.

1978 Corps Field Investigation Report, Administrative Record, Box 2, item B, vol. 4 draft SEIS, at E-113. According to the Field Investigation Report, construction of the lake would destroy 1,350 acres of habitat, 85% of which is the bay and branch habitat analyzed above.

Other portions of the administrative record also support the EPA's determination that the site area is a valuable wildlife habitat which would be adversely affected by the construction of Lake Alma. In 1978, the Game and Fish Division of the DNR stated the following:

In discussing browse for deer, the most important species are gallberry, blackgum, blackberry, black and white titi, oaks of various species, red bay, greenbrier, sweet bay and red maple. These plants occur in relative abundance and are found in one or more habitat types on the project area. . . . There is a rich diversity of bird life on the area, both resident and migratory. The wetter areas have an abundance of songbirds as well as wading birds. . . . The project area does not differ markedly from sites that can be located in Bacon and surrounding counties. However, the bottomland habitat on the area is important to wildlife for food, cover and reproductive processes.

Corps Permit Record, Administrative Record, Box 1, file 7, no. 1, at 43.

The Corps noted in its 1979 Environmental Assessment of the Lake Alma site that the project would have a "significant impact" on wildlife and conservation values. Observing that the existing wetlands provide a source of food, shelter, nesting and resting areas, and a travel lane, the Corps stated that construction of the lake would directly and adversely affect the wildlife in the area. The Corps also recognized that the project would have indirect effects on wildlife by preventing the flow of detritus, or debris, downstream. Leaf litter on the floor of the wetlands is broken down by fungi and microscopic animals and is washed into the creek. This detritus, and the creatures that eat it, become the lower end of the food chain for Hurricane Creek and connecting bodies of water. The dam constructed for Lake Alma would prevent or limit the flow of detritus by slowing the movement of the water, allowing settling of the particulates.

In the draft SEIS, the impacts of Lake Alma were described in clear terms:

[P]roject implementation would directly affect approximately 95 percent of the amphibian, 64 percent of the reptile, 56 percent of the bird, and 73 percent of the mammal species which possibly occur in the study area. The loss of 1,400 acres of bay and branch swamp communities will also remove habitat that may be utilized by several endangered animal species which could conceivably occur in the study area. . . . For aquatic and semi-aquatic reptiles and amphibians, a major long-term adverse impact from the project is a change from a free-flowing creek to a lake situation, with resulting changes in water depth, speed, turbidity, quality, vegetation, and bottom type. Hardwood corridors, such as that found in the bay swamp habitat of the study area, provide travel lanes for wildlife in southeastern Georgia, particularly in agricultural areas. . . . The relatively long length of the reservoir, approximately six miles, and the development associated with the project will interrupt the travel route afforded by Hurricane Creek to some species of wildlife in the area.

Administrative Record, Box 2, item B., vol. IV, at 15. As to the permanent, unavoidable impacts of the project, the SEIS concluded:

Approximately 1,400 acres of bay and branch swamp habitat which probably supports the greatest diversity of wildlife in the study area, would be eliminated by the impoundment of the proposed lake. This action would cause a permanent elimination of terrestrial organisms from the lake site. Some reptiles, amphibians, mammals, and possibly some birds (nests and nestlings) will be lost during the initial construction and impoundment phases of the lake. Movement of displaced species into adjacent environments surrounding the lake may cause stresses on animal populations through competition for food, cover, and breeding habitats and territories, if animal populations are already at the carrying capacity for these habitats. The bay and branch swamp community in the study area appears to be habitat for the American alligator, and conceivably seven other endangered species. The principal adverse impact on this species is the removal of potential habitat.²⁷

Id. vol. VII at 1 vol. VIII at 1.

27 Other documents in the administrative record also lend support for the EPA's action. The CEQ, in letters to city officials and other agencies, described the project site as a "highly productive wetland area with well-developed, diverse vegetation." Administrative Record, Box 1, file 4, no. 50. The CEQ also noted that conservation groups indicate that the wildlife impacts as a result of the project would be more extensive than estimated in the EIS. Id. no. 58. In a letter written to the Corps before the formulation of the mitigation plan, the FWS recounted the importance of the Hurricane Creek wetland area by stating that the habitat is extremely important in the maintenance of high fish and wildlife values. According to the FWS, the standing crop of fish in the reservoir that would be created, after the initial years, is expected to be low. Id. no. 60. Tom Welborn, an EPA biologist, evaluated the project site and rated the area as an "above average" wildlife habitat compared to other wetlands in the Southeast. His report states that the Hurricane Creek floodplain has diverse and palatable vegetation, good area for cover, and an abundance and variety of wildlife habitat. Administrative Record, Box 4, file 3, no. 13.

The DNR, in its comments on the proposed section 404(c) action, raised several objections to the EPA's position. Far from ignoring the DNR's contentions, the EPA addressed each individually in its Final Determination. About the statement that the project site provides little wildlife habitat due to the size of the trees and the type of mast (i.e., nuts) produced, the EPA states that the DNR's conclusion is not based on current information, does not reflect food requirements for wildlife species that do not consume hard mast, and ignores the other wildlife values provided by the vegetation on the project site (presumably coverage and nesting areas, among others). Regarding the DNR's contention that construction of the lake would increase the ability of the site area to support a recreational fishery, the EPA admits that the project would increase the game fish and game bird population in the area. The EPA points out, however, that this increase would come at the expense of other indigenous wildlife species, and the loss would not be offset by the proposed mitigation. Finally, the DNR asserts that the lake would improve the migratory corridor for waterfowl and provide an excellent wintering habitat. Although acknowledging that certain species of waterfowl would benefit from the project, the EPA notes that the present site already provides a substantial habitat for waterfowl, and reiterates the loss of other species which would result from the lake.

In its comments included in the draft SEIS, the DNR recognized that whether "unacceptable adverse impacts" exist is subject to professional judgment, which may vary. Although the judgment of the EPA diverges from that of the DNR and others in this case, that difference does not render the EPA's action arbitrary. As the above discussion makes clear, the EPA's decision is bolstered by substantial evidence. Thus, the Court will not overturn such a decision simply because other agencies have disagreed with it.

2. Quality of Information Used by the EPA

In addition, neither of the plaintiffs' other contentions justify a reversal of the Agency. The plaintiffs first argue that the EPA relied on speculative information in determining the species which inhabit the project area. The Agency maintains, however, that its methodology is sound. In making its evaluation, the EPA compiled lists of species, reasonably expected to be seen on the site, which represent wildlife evaluations and on-site surveys conducted by several federal and state agencies. These lists are based on scientific knowledge of species range and habitat, and their use is an accepted practice among all federal agencies conducting environmental assessments. Although the plaintiffs vigorously criticize the EPA's practice, they do not dispute that the use of these lists is standardized procedure. Accordingly, the Court finds that the Agency's reliance on these lists is not arbitrary.

3. Proper Scope of EPA's Focus

The plaintiffs' final assertion — that the EPA's section 404(c) action is unlawful because the Agency considered factors other than the effects on wildlife when evaluating Lake Alma — also lacks merit. First, section 404(b)(1) guidelines, the criteria used to determine the acceptability of a proposed discharge, authorize consideration of certain "non-wildlife" factors, such as water quality and the loss of wetlands.²⁸ See 40 C.F.R. §§ 230.10(c) 230.41. Moreover, as the EPA notes, these factors are related to the determination of "unacceptable adverse effects" on wildlife as they directly bear on the viability and quality of wildlife habitat. In addition, although the EPA may have voiced its concerns about the project's effects on water quality and the destruction of wetlands, the record supports the Agency's judgment that the project adversely affects wildlife. Consequently, the Court must uphold the EPA's action.

28 40 C.F.R. § 231.2(e) defines "unacceptable adverse effect" and requires that the EPA consider the relevant section 404(b)(1) guidelines when evaluating the unacceptability of such impacts under section 404(c). See Bersani v. EPA, 674 F. Supp. 405, 414-17 (N.D.N.Y. 1987), aff'd, 850 F.2d 36 (2d Cir. 1988) (recognizing that the EPA can consider the section 404(b)(1) guidelines when acting under section 404(c)).

CONCLUSION

As noted at the outset of this Order, this case has been of extraordinary duration. The plaintiffs have withstood numerous bureaucratic hardships and over ten years of litigation in their struggle to build Lake Alma. The Court is sympathetic to their plight and admires their perseverance; nevertheless, it must abide by the law. After an exhaustive review of the administrative record, relevant statutes, regulations, and precedent, the Court has determined that the EPA acted within the scope of the CWA and the Administrative Procedure Act. Accordingly, the Court orders the following:

1. That the plaintiff's motion for consolidation, under Federal Rule of Civil Procedure 42(a), of City of Alma, et al. v. United States, et al., CV589-51, and National Wildlife Federation, et al. v. Marsh, et al., CV582-98, is GRANTED;

2. That the plaintiffs' motion for lifting of the injunction, imposed by this Court on March 28, 1986, is DENIED;

3. That the plaintiffs' motion for summary judgment is DENIED; and

4. That the defendants' motion for summary judgment is GRANTED.

SO ORDERED.²⁹

29 The Court feels that the result reached here is compelled by law. As a native of this area, however, I understand the desire of the community leaders to construct Lake Alma, and I concur with their view. A principled undertaking, motivated by the city's yearning for economic betterment, has been thwarted. Time and the tenacious opposition, largely of non-local persons and federal officials, prevented the project. Although the "environmentalist" may cheer this decision, the citizens of Alma may have great difficulty understanding the maneuverings of administrative agencies and the dissertations of the courts.