850 F.2d 36
SYNOPSIS: Appellant developer sought review of an order from the United States District Court for the Northern District of New York denying its motion for summary judgment and granting summary judgment to appellees, Environmental Protection Agency, U.S. Army Corp of Engineers, and others, in appellant's suit for review of the Environmental Protection Agency's denial of a permit to build a shopping mall under the Clean Water Act, 33 U.S.C.S. § 1344(c).
OVERVIEW: Appellant developer sought review of an order denying its motion for summary judgment in its suit against appellees, Environmental Protection Agency (EPA), U.S. Army Corps of Engineers (Corps), and others, for review of the EPA's veto under the Clean Water Act (CWA), 33 U.S.C.S. § 1344(c), of a permit granted by the Corps to allow "discharge of dredged or fill material" so that appellant could build a shopping mall. It also appealed the trial court's grant of summary judgment to appellees.
-Appellant argued that the EPA improperly interpreted CWA regulations, 40 C.F.R. § 230.10(a)(2),(3), which required the Corps to determine whether an alternative site was available that would cause less harm to wetlands, by using a "market entry theory."
-Under that theory, the availability of an alternative site was determined at the time the developer entered the market, rather than the date on which it applied for the permit, which was later.
On plenary review, the court affirmed, holding that the EPA's use of the market entry theory was consistent with the regulatory language and past practice, that the interpretation was reasonable, and that the EPA's findings were not arbitrary or capricious.
OUTCOME: The court affirmed the granting of summary judgment to appellees, Environmental Protection Agency (EPA) and Army Corps of Engineers, and the denial of summary judgment to appellant developer because EPA's use of "market entry theory" in interpreting Clean Water Act regulation was consistent with the regulatory language and past practice, the interpretation was reasonable, and the EPA's findings were not arbitrary or capricious.
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