Free Supplemental Brief - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS RESOURCE INVESTMENTS, INC., and LAND RECOVERY, INC., Plaintiffs, v. UNITED STATES OF AMERICA, Defendant. PLAINTIFFS' SUPPLEMENTAL MEMORANDUM IN RESPONSE TO COURT'S MAY 3, 2006 ORDER (DELAYS IN STATE AND LOCAL PERMITTING PROCESS AND ADDITIONAL COURT DECISIONS ADDRESSING ISSUE OF CORPS' JURISDICTION) No. 98-419L Judge Lawrence J. Block

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TABLE OF CONTENTS Page I. II. INTRODUCTION ...............................................................................................................1 ARGUMENT.......................................................................................................................4 A. As A Direct Result Of The Corps' Unlawful Actions, Successful Completion Of The State And Local Permit Process Was Delayed By Many Years, Depriving Plaintiffs Of Millions Of Dollars Of Landfill Revenue ...................................................................................................................4 1. The Corps' assertion of jurisdiction, because of its direct impact on issuance of state and local ministerial approvals needed for landfill construction, delayed the opening of the landfill by more tha n three years .............................................................................................................5 The issuance of the final state EIS, the CUP, and the solid waste permit were delayed for years because of the need to redo the state and local permitting process to address the same final landfill configuration that the Corps identified as potentially acceptable in 1995. ..........................................................................................................13 a. b. 3. Significant Delays by the Corps ....................................................14 Impact of delayed reconfiguration on state and local regulatory process ..........................................................................19

2.

Without the Corps' exercise of jurisdiction, a more streamlined state and local process, although "complex," would have resulted in an operational landfill six or seven years prior to the actual opening date ...............................................................................................23

B.

The Decision Of The Ninth Circuit, Which Is The Only Decision Addressing The Corps' Jurisdiction, Has Collateral Estoppel Effect Here As To Factual and Legal Issues Determined By The Ninth Circuit, But This Court Has Jurisdiction To Apply Those Binding Determinations To The Taking Analysis ..............................................................................................27

III.

CONCLUSION..................................................................................................................32

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TABLE OF AUTHORITIES Federal Cases Page Bragg v. Robertson, 72 F. Supp. 2d 642 (S.D. W. Va. 1999 .........................................................31 Christopher Village, L.P. v. United States, 360 F.3d 1319 (Fed. Cir. 2004)...........................28, 29 Ciampitti v. United States, 18 Cl. Ct. 548 (1989) ..........................................................................27 Econ. Dev. & Indus. Corp. v. United States, 13 Cl. Ct. 590 (1987) ..............................................29 Ghorbani v. INS, 686 F.2d 784 (9th Cir. 1982) .......................................................................30, 31 Golden Pac. Bancorp v. United States, 15 F.3d 1066 (Fed. Cir. 1994) ..................................28, 30 Humane Soc'y of the U.S. v. Clinton, 44 F. Supp. 2d 260 (Ct. Int'l Trade 1999) .........................28 John R. Sand & Gravel Co. v. United States, 60 Fed. Cl. 230 (2004)...........................................27 Kremer v. Chem. Constr. Corp., 456 U.S. 461 (1982) ..................................................................30 Lakewood Assoc. v. United States, 45 Fed. Cl. 320 (1999) ...........................................................29 Montana v. United States, 440 U.S. 147 (1979) ............................................................................29 Palm Beach Isles Assocs. v. United States, 58 Fed. Cl. 657 (2003) ..............................................27 Rapanos v. United States, __ U.S. __, 126 S. Ct. 2208 (2006) .....................................................28 Resource Inv., Inc. v. U.S. Army Corps of Eng'rs, 151 F.3d 1162 (9th Cir. 1998).................11, 14 Riverside Irrigation Dist. v. Stipo, 658 F.2d 762 (10th Cir. 1981)............................................2, 12 Smith v. United States, 59 Fed. Cl. 64 (2003)................................................................................28 Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng'rs, 531 U.S. 159 (2001).......................................................................................................................28 W. Va. Coal Assoc. v. Reilly, 728 F. Supp. 1276 (S.D. W. Va. 1989)...........................................31 State Cases Weyerhaeuser v. Pierce County, 976 P.2d 1279 (Wash. Ct. App. 1999) ..................................9, 10

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Weyerhaeuser v. Tacoma-Pierce County Health Dep't., 96 P.3d 460 (Wash. 2004) .......................................................................................................13, 26 Federal Statutes 33 U.S.C. § 1341(a)(1) ..................................................................................................................11 Federal Regulations 33 C.F.R. § 325.2(a)(2)..................................................................................................................15 33 C.F.R. § 325.1(d)(9) .................................................................................................................16 Federal Rules Fed. R. App. P. 41(b) .......................................................................................................................7

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EXHIBITS IN SUPPORT OF PLAINTIFFS' SUPPLEMENTAL MEMORANDUM IN RESPONSE TO COURT'S MAY 3, 2006 ORDER (DELAYS IN STATE AND LOCAL PERMITTING PROCESS AND ADDITIONAL COURT DECISIONS ADDRESSING ISSUE OF CORPS' JURISDICTION) Resource Investments, Inc., et al. v. United States of America United States Court of Federal Claims No. 98-419L Exhibit # PE 163 PE 164 Description 08/21/1990 Letter from Warren Baxter (Corps) to Heller Ehrman. 09/14/1990 Letter from Janine Redmond for Joseph Scorcio (Pierce County Planning) to Interested Part[ies] transmitting Draft Environmental Impact Statement for Proposed LRI 304th St. Landfill Site. 11/15/1990 Letter from Polly Lord (Heller) to All Interested Agencies re Application for a Section 404 Permit, attaching Mitigation of Wetland Impacts at 304th and Meridian Street Landfill Site, and Project Purpose and Alternatives Analysis. 11/28/1990 Letter from Joseph Scorcio (Pierce County Planning) to Interested Part[ies] transmitting Final Environmental Impact Statement for Proposed LRI 304th St. Landfill Site. 04/10/1991 Letter from James Thrasher (Pierce County Hearing Examiner) to Land Recovery, Inc. attaching the Hearing Examiner's Report and Decision in Case No. CP8-89. (Excerpts) 11/08/1991 Pierce County Council Resolution No. R91-207 Remanding the Hearing Examiner's Decision in Case No. CP889. 01/31/1992 Letter from James Thrasher (Pierce County Hearing Examiner) to All Parties of Record attaching the Hearing Examiner's Report and Decision on Remand from Pierce County Council in Case No. CP8-89. (Excerpts) 12/12/1993 Judgment in Weyerhaeuser v. Pierce County, No. 922-05662-9, Pierce County Superior Court, Judge Frederick B. Hayes. Page Numbers 002277 002278

PE 165

002279-002304

PE 166

002305-002306

PE 167

002307-002310

PE 168

002311-002312

PE 169

002313-002315

PE 170

002316-002319

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Exhibit # PE 171

Description 01/02/1996 Letter from Stephen Causseaux, Jr. (Pierce County Hearing Examiner) to Land Recovery, Inc., attaching the Hearing Examiner's Report and Decision. (Excerpts) 04/06/1999 Letter of Credit Agreement for LRI Wetland Mitigation Plan Installation by LRI and Pierce County. 04/22/1999 Bond for $957,700 for work to be completed in accordance with the site development plans approved by the County. 10/21/1999 Excerpt of Deposition of John A. Comstock. 03/28/2000 Expert Report of Bernard N. Goode, A Report Concerning the Section 404 Permit Application by Resource Investments, Inc.

Page Numbers 002320-002330

PE 172 PE 173

002331-002339 002340

PE 174 PE 175

002341-002343 002344-002358

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I.

INTRODUCTION This Court, in its May 3, 2006 Order, asked the parties to address "[d]elays in the state

and local permitting process attributable to or independent of the Federal permitting process" based on the joint stipulated chronology listing state, local, and federal permits. See Joint Supp. Brief in Resp. to Court Order of May 3, 2006 (Chronology of Relevant Permitting Processes) (the "Chronology") (Docket No. 176). The Court also asked whether there were any additional court decisions addressing the Corps' jurisdiction "in matters similar to this" (which Plaintiffs understand to mean involving RCRA-regulated landfills located on sites containing wetlands). Plaintiffs answer each question in turn, in summary in this Introduction and then in more detail below. This Court's first question--to what extent "[d]elays in the state and local permitting process" were "attributable to or independent of the Federal permitting process"--by focusing on "but for" causation, slices through Defendant's superficial argument that Plaintiffs cannot establish a taking because the state and local permitting process began before the Corps' assertion of jurisdiction and ended after the Ninth Circuit issued its mandate holding that the Corps lacked jurisdiction. The Court's question probes more deeply: it asks not about the beginning and ending dates of the state and local permitting process, but rather whether the Corps' unlawful assertion of jurisdiction caused delays in Plaintiffs' ultimately successful state and local permit process, thereby delaying the opening of the landfill facility (which, of course, caused Plaintiffs each year to lose millions of dollars of landfill revenue that they would otherwise have received). As described in detail in Section II.A below, the undisputed facts demonstrate that the Corps' actions caused substantial delay in Plaintiffs' ability to obtain the state and local permits necessary to construct and operate the landfill. This substantial delay leaps into bold relief upon examination of the interwoven permitting processes in two critical time periods.

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First, in February 1996 Plaintiffs had already secured both of their key discretionary permits in the state and local process, their Conditional Use Permit ("CUP") (issued on January 2, 1996) and the General Solid Waste Handling Facility Permit ("solid waste permit") (issued on February 7, 1996). As a matter of state and local law, Plaintiffs were then entitled to secure their remaining state and local permits, which were purely ministerial, and commence construction. The Corps' assertion of Clean Water Act ("CWA") jurisdiction, and its subsequent permit denial in September 1996, however, stood as a direct obstacle--what Defendant has conceded was a "regulatory prohibition" (Def.'s Opp'n at 28)--that was already in place when Plaintiffs obtained their discretionary permits1 and lasted until the Corps' jurisdiction was overturned by the Ninth Circuit mandate in February 1999, a period that included the entire federal appeals process. Critical to the analysis is the fact that only two of the state and local permits were discretionary permits: the CUP, which is the land use permit issued by Pierce County, and the solid waste permit, which is issued by the Tacoma-Pierce County Health Department. Both of these permits were issued only after full public interest and environmental review, including hearings with lay and expert testimony and the state Environmental Impact Statement ("state EIS") process. All of the other state and local permits were ministerial permits. These are permits that the various governmental entities were required to issue so long as Plaintiffs complied with their associated regulatory provisions and with the CUP and the solid waste permit conditions.

The prohibition was in place at this time because, of course, it would be unfair and "unrealistic" to expect Plaintiffs to test the validity of the Corps' exercise of jurisdiction and subsequent permit denial by commencing work on the landfill without obtaining a Section 404 Permit or demonstrating the Corps' lack of jurisdiction because to do so would risk civil and criminal penalties under the CWA. Riverside Irrigation Dist. v. Stipo, 658 F.2d 762, 767 (10th Cir. 1981), aff'd sub nom., Riverside Irrigation Dist. v. Andrews, 758 F.2d 508 (10th Cir. 1985).

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As described in Section II.A.1 below, the delay in the state and local permitting process caused by the Corps during this time period is beyond dispute based on the following facts: (1) Plaintiffs had received both their discretionary permits in January and February of 1996 (months before the Corps denied Plaintiffs' Section 404 Permit) and Plaintiffs were then eligible for their final ministerial construction approvals; (2) the Chronology demonstrates that Plaintiffs needed only a few months to secure these ministerial permits and open their facility, which (as subsequent events demonstrated) would have occurred approximately by the time the Corps reached a decision on the Section 404 Permit in September 1996; and (3) due to the need to overturn the Corps' permit denial, or establish lack of jurisdiction, Plaintiffs were unable to obtain those final necessary ministerial permits or commence cell construction for the entire time that Plaintiffs were forced to litigate the Corps' jurisdiction in federal court. Thus, as a matter of undisputed fact and law, the Corps' actions delayed the construction and eventual opening of the landfill by three years. A simple calculation using the yearly landfill revenue figure of Defendant's own expert, Dr. Mitchell, sho ws beyond dispute that this delay caused Plaintiffs to lose over $10 million. This "economic impact" alone satisfies the Penn Central test. Second, the undisputed facts also demonstrate that the Corps' actions and involvement in the permitting process caused years of delay in the issuance of the two discretionary permits, the CUP and the solid waste permit, because of the Corps' direct impact on the discretionary permitting process. As described in Sections II.A.2 and II.A.3 below, the Corps' actions mired down the state and local permitting process in a number of ways, the most significant of which were the following: (1) the Corps delayed commencement of the federal permit evaluation process by years because of its failure to follow its own regulations and issue a timely public notice (which triggers the beginning of the permit evaluation process) and its failure to timely approve the wetlands delineation (necessary for wetland mitigation analysis); and (2) after this significant delay, the Corps then forced Plaintiffs and the state and local governments to start their own permitting process over again by insisting on reconfiguration of the landfill to overcome federal agency "concerns." Thus, but for the Corps' involvement, Plaintiffs would 3

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have been able to complete the state and local discretionary permitting process (and of course, the subsequent ministerial permitting process) years earlier based on the original landfill configuration approved in the initial CUP in 1991. This then answers the Court's first question: substantial delays in the state and local permitting process, on the order of many years, are directly and indisputably "attributable" to (and not "independent" of) the Corps' actions. As for this Court's second question--whether other courts have addressed Corps' jurisdiction over landfill projects governed by states with RCRA-approved solid waste programs--as indicated at oral argument, the Ninth Circuit's decision is the only reported federal or state case addressing this precise jurisdictional question. Because the United States was party to that litigation, and because it was litigated to a final judgment against the United States, and not further appealed, the Ninth Circuit's determination that the Corps' assertion of jurisdiction was "unreasonable," "unnecessary," duplicative, and unlawful, is binding here in this litigation involving the same parties by operation of ordinary principles of issue preclusion ("collateral estoppel"). That said, this Court, although bound by the Ninth Circuit's ruling on the Corps' jurisdiction, has exclusive jurisdiction to analyze how those determined issues of fact and law apply to the Lucas and Penn Central criteria that establish whether a taking has occurred, an issue not decided by the Ninth Circuit. Under any appropriate analysis of the takings issue, the fact that the Corps' assertion of jurisdiction was found "unreasonable," "unnecessary," duplicative, and unlawful demonstrates that the character of the government action prong of Penn Central affirmatively favors Plaintiffs as a matter of law. Other factors only tip the balance further in Plaintiffs' favor. See Pls.' Resp. at 24-32. II. ARGUMENT A. As A Direct Result Of The Corps' Unlawful Actions, Successful Completion Of The State And Local Permit Process Was Delayed By Many Years, Depriving Plaintiffs Of Millions Of Dollars Of Landfill Revenue.

Defendant has argued that a "complex" state and local permit process began in 1989 and was not completed until 1999, after the Ninth Circuit decision, a circumstance it has argued is a 4

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defense to liability. Def.'s Mem. at 7, 54-55. But the question posed by this Court cuts to the heart of the causation analysis and--instead of focusing on the beginning and ending dates-- asks the parties to address whether there were significant delays in the state and local process that are "attributable" to the federal permitting process. Indeed there are: they are both direct and substantial and they delayed the opening of the landfill facility for many years (which, of course, caused Plaintiffs each year to lose millions of dollars of landfill revenue that they would otherwise have received). As described below, the delays are most easily analyzed using two time periods. First, Plaintiffs will analyze the delays caused by the Corps in the state and local process after Plaintiffs secured their CUP and solid waste permit. Second, Plaintiffs will analyze the delays caused by the Corps in Plaintiffs' acquisition of those two key discretionary approvals. 1. The Corps' assertion of jurisdiction, because of its direct impact on issuance of state and local ministerial approvals needed for landfill construction, delayed the opening of the landfill by more than three years.

After Plaintiffs had been issued their two discretionary permits, the CUP and the solid waste permit, on January 2, and February 7, 1996, respectively, the Corps directly caused more than a three-year delay in the opening of the landfill because of the time needed to await the Corps' permit denial (which did not occur until September 30, 1996) and then to overturn the Corps' jurisdiction in federal court. Indeed, Defendant has admitted this causal relationship. In its Summary Judgment Opposition brief, it argues that the "Corps regulatory prohibition did not begin until 1996 when . . . RII's permit application was denied, and ended in October 1998 when Plaintiffs began construction of the landfill." Def.'s Opp'n at 28 (emphasis added). Of course, Defendant has both dates wrong: The prohibition on disturbing wetlands began under the federal CWA as soon as the Corps asserted jurisdiction; and, because the Ninth Circuit mandate did not issue until February 10, 1999, construction of the landfill cells (which would disturb wetlands)

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could not begin before then. 2 But Defendant concedes the main point: there was a "regulatory prohibition" imposed by the Corps, and it directly caused years of delay in opening the landfill, a delay that included the entire period of the federal appeals process. In order to understand how and why the Corps' actions delayed the state and local permitting process, it is critical to understand the nature of the interrelationships between those two permitting processes. The state and local permitting process, on the one hand, and the federal permitting process on the other hand, were not "independent" of one another, as Defendant has previously suggested. Def.'s Mem. at 7. Instead, the state/local process was dependent, not independent, for two critical reasons. First, because state and local laws require landfill permit applicants to comply with federal requirements as well as state and local law, both the CUP and the solid waste permit required Plaintiffs to secure a Section 404 Permit, if that were required by federal law. 3 Other local permits and approvals were contingent on compliance with the CUP and solid waste permit, and could not be issued unless such federal law

The earlier construction Defendant refers to was that of two monitoring wells, construction which did not involve wetlands and was thus not precluded by the lack of a final mandate from the Ninth Circuit. Pls.' Resp. at 18. Plaintiffs determined to risk this expenditure (while awaiting the outcome of the Corps' Petition for Rehearing in the Ninth Circuit) in order to avoid an even longer delay as RCRA requires a year of background groundwater monitoring data before waste can be received at a new landfill. In issuing the CUP, the Hearing Examiner required as a condition that Plaintiffs obtain a Section 404 Permit (PE 171 at 2325 (Condition AM)) and inserted a similar condition in his Reasonable Use Exception ("RUE") decision in November 1996 (PE 52 at 525 (Conclusion 7.3)). However, because Plaintiffs challenged the Corps' jurisdiction, he modified both the CUP and the RUE to provide that such a permit was required only "to the extent required by federal law." PE 46 at 435 (Condition AM); PE 83 at 1124 (Finding 9R), 1125 (Conclusion 2). Obviously, it was his intent to require a Section 404 Permit as a CUP condition, but only if that were required by federal law, which the Ninth Circuit held it was not. Similarly, the solid waste permit stated that Plaintiffs must obtain a Section 404 Permit "as required by federal and state law" (PE 44 at 395), which the Tacoma-Pierce County Health Department interpreted to mean to the extent required by law. PE 37; PE 67 at 759-60 (¶ 7). This, of course, underscores the dependency of the state and local process on events in the federal permitting and appeal processes.
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compliance was demonstrated. Thus, Plaintiffs could not obtain these construction approvals needed to build the landfill cells until they had either obtained a Section 404 Permit from the Corps, or demonstrated that the Corps did not have jurisdiction. These direct impediments were not removed until the Ninth Circuit's decision became final when the mandate issued on February 10, 1999. 4 Second, the state and local process was obviously dependent on the federal process because of the need to have all permits address and approve the same landfill configuration. As described in Section II.A.2 below, Plaintiffs were forced to modify the original configuration approved by the state and local governments to try to address explicit federal agency concerns, which resulted in a second state and local permit process to address the new configuration. Thus, the Corps' belated review required both Plaintiffs and the state and local governments to conduct the same permitting process all over again. Turning to the first interrelationship--that state and local permits could not violate federal law--even though Plaintiffs already had their CUP and solid waste permit in hand by early February 1996, they could not commence construction, or secure the necessary ministerial approvals to do so, until after the mandate issued on February 10, 1999, overturning the Corps' unlawful and unreasonable assertion of jurisdiction. Because, as described below, Plaintiffs could have secured the ministerial approvals in a matter of months, the Corps' unlawful actions delayed the opening of the landfill by more than three years. As the Chronology clearly shows, when the Corps denied the permit on September 30, 1996, Plaintiffs had already secured the critical (and only) discretionary state and local permit approvals: On January 2, 1996, Plaintiffs received their CUP, and on February 7, 1996, Plaintiffs were issued their solid waste permit. Chronology at 1. These permits had been issued

Under the federal rules, the Corps' filing of a Petition for Rehearing and Rehearing En Banc delayed the finality of the Ninth Circuit's July 1998 decision until the petitions were denied. Fed. R. App. P. 41(b); see also Pls.' Mem. at 64-65; Pls.' Reply at 38-39.

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based on a full public interest and environmental review, public hearings with lay and expert testimony, and a full state EIS process all of which demonstrated (1) strong public need for the project, (2) adequate wetland mitigation, and (3) an absence of adverse environmental impacts. 5 Thus, the undisputed facts demonstrate that--had the Corps not asserted jurisdiction and eventually denied the permit--Plaintiffs would have been able to move to secure the final ministerial permits needed for construction upon receipt of their CUP in January 1996. The undisputed facts likewise demonstrate that the process of obtaining these last ministerial approvals only took a few months to complete (as shown by events some three years later once the Ninth Circuit terminated the Corps' unlawful exercise of jurisdiction). 6 The relevant dates, as the Chronology demonstrates, are undisputed:

The CUP and the solid waste permit were the only two state and local "discretionary" permits required for project approval. The decision on the CUP approved the final state EIS and set all the conditions for the issuance of the subsequent "ministerial permits," the issuance of which was solely dependent on compliance with the CUP conditions and the various state and local codes and regulations typical of such permits. PE 171 at 2322-30 (Conditions E, X, AC, AF, BA, BZ, CA, CB, CE, & CH). As long as those requirements were met, the issuing agencies were required to issue the permits without the discretion to deny based on environmental considerations or other discretionary bases. Plaintiffs applied for some of the ministerial permits before the mandate issued. However, Plaintiffs did not apply for others, for example, the building permits, until after construction of the landfill cells commenced because those permits applied to other aspects of the project and, given their ministerial nature, were not necessary before proceeding with the longer term cell construction. However, from the face of the Chronology, it is nonetheless clear that the only ministerial construction approval that took longer than five months to acquire was the Wetlands Approval by the Pierce County Planning and Land Services Department. The initial application was on February 8, 1996, and the final approval was on April 7, 1999. The reason for this delay was that final approval required a le tter of credit agreement for more than $2.1 million guaranteeing performance of Plaintiffs' wetland mitigation obligations, and Plaintiffs could not obtain final Pierce County approval and complete that letter of credit agreement until the Corps' impediment was removed. PE 78 at 957-58 (¶ 30). Plaintiffs would have otherwise had to pay fees on the letter of credit during the period it took to obtain the reversal of the Corps' jurisdiction in federal court, and to have done so would not have removed the Corps as an impediment.
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1. Forest Practices Permit. Plaintiffs originally applied for this permit (which was necessary to clear trees from the site) in November 1990, and it was denied the same month because the final change in the site's land use had not yet been approved. See PE 85-86 at 113135. Plaintiffs reapplied on November 16, 1998, after the Ninth Circuit decision, but before the mandate issued, and the Department of Natural Resources granted the permit on April 8, 1999, after the mandate had issued, just five months after the re-application and two months after the mandate finalized the Corps' lack of jurisdiction. By the time the permit was approved, the final land use change had been approved, of course, and the Corps' contrary decision overturned. 2. Hydraulic Project Approval. This permit was required for in-stream mitigation measures and for stream crossing over South Creek for two temporary construction bridges. PE 78 at 958 (¶ 32). After the Ninth Circuit decision, Ms. Snyder, LRI's Director of Regulatory Services, provided the final information for the permit on December 8, 1998 (id.), the application was accepted by the state agency on January 15, 1999, and the permit issued on February 25, 1999 (Chronology at 1), allowing Plaintiffs access across South Creek for cell construction and wetland mitigation. 3. Wetlands Approval. Plaintiffs originally applied for approval of their wetlands mitigation plan from Pierce County on February 8, 1996. However, obtaining the approval required both final site plans and a letter of credit agreement for more than $2.1 million guaranteeing performance of Plaintiffs' wetlands mitigation obligations. PE 78 at 957-58 (¶ 30); PE 172. Plaintiffs submitted the letter of credit agreement after the Ninth Circuit mandate issued and the approval was granted on April 7, 1999, shortly thereafter. Chronology at 2. 4. General Wetlands RUE. One of the conditions in the CUP was that Plaintiffs obtain a "reasonable use exception" (although that requirement was later overturned by the Washington Court of Appeals, Weyerhaeuser v. Pierce County, 976 P.2d 1279 (Wash. Ct. App. 1999)). But, in any event, Plaintiffs applied for the wetlands RUE on May 23, 1996, and it was approved on November 27, 1996, and did not delay construction of the facility. Chronology at 2.

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5. Dam Construction Permit. This permit was needed to construct a stormwater detention pond on the property, and was not necessary to commence other construction. PE 78 at 958 (¶ 31). The application was made on December 4, 1998, and approved less than four months later on March 31, 1999. Chronology at 2. 6. Site Development Permit. This Pierce County construction permit was required before excavation of soils for cell construction could occur. Plaintiffs applied for the permit on February 11, 1999, the day after the mandate issued from the Ninth Circuit, including with their application their engineered final construction plans. The plans were approved by Pierce County on April 22, 1999, the required bond in the amount of $957,700 was issued that same day (PE 173), and Plaintiffs obtained the permit two and one-half months later on Ap ril 27, 1999. Chronology at 2. 7. Building Permits. Plaintiffs received five building permits for various structures on the property. (The permits were not required to initiate cell construction which happened on April 27, 1999.) It is clear that all of the building permits were applied for after cell construction had begun, and all were issued in five months or less, within the construction period. Chronology at 2. Thus, the building permits did not cause any delay in moving forward with construction, or in opening the landfill by mid-December 1999. 8. Access Connection Permit. The Access Connection Permit was the permit required from the State Department of Transportation to allow trucks carrying solid waste to enter the site from the state highway once the landfill was opened. The CUP provided that this permit was not required until the site became operational. PE 78 at 958 (¶ 34); PE 171 at 2324-25 (Condition AF). As the Chronology shows, Plaintiffs applied for this permit on November 13, 1998, and it was approved on July 20, 1999, well before the facility opened. Chronology at 2. In addition, on April 28, 1999, Plaintiffs applied for a temporary access permit to allow access to the site for heavy equipment used in construction, which was timely granted on May 5, 1999. Id.

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9. Industrial Pretreatment Permit and Industrial Wastewater Discharge Permit. Both of these permits were needed for operation, not construction, of the facility and neither had any impact on opening the landfill. The same analysis applies to the four federal permits, approval of which was delegated to the state permitting agencies. Plaintiffs were able to timely secure each permit and none impacted the opening of the facility. Moreover, in contrast to the Corps' permitting process, each was issued in a timely manner. 1. State Water Quality Certification. The federal CWA requires a water quality certification from the responsible state agency, here the Washington State Department of Ecology, in cases where a federal Section 404 permit is required. 33 U.S.C. § 1341(a)(1). Because the Corps lacked jurisdiction, however, no Section 401 certification would have been required here. Nonetheless, the application was made on December 8, 1995, and the certification was issued on June 17, 1996. Chronology at 3. Moreover, both the Department of Ecology and the Tacoma-Pierce County Health Department had already determined that the project would pose no adverse impacts to groundwater or surface water as they were required to do before issuance of the solid waste permit to the facility on February 7, 1996, making certification under Section 401 a foregone conclusion. See Def.'s Mem. at 17; see also Resource Inv., Inc. v. U.S. Army Corps of Eng'rs, 151 F.3d 1162, 1164-65 (9th Cir. 1998) (discussing water quality approvals) ("RII v. Corps"). 2. NPDES General Permit for Stormwater Discharges Associated with Construction Activities. This federal NPDES permit, administered with federal approval by the State Department of Ecology, was required for stormwater discharges occurring during constructio n. It was promptly issued in February 1996, only one and one- half months after application (Chronology at 3), and did not affect the inception of construction. 3. NPDES General Permit for Stormwater Discharges Associated with Industrial Activities. This NPDES permit, issued by the State Department of Ecology, was applied for on January 2, 1996, and issued one and one- half months later on February 16, 1996. Id. It was 11

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required to treat and discharge stormwater once the landfill facility opened. It was promptly issued and did not affect either construction or the inception of landfill operations. 4. Clean Air Act Permit. This permit was issued by the State Department of Ecology on December 10, 1999, only a month after application and was not required for construction. Id. at 3. Instead, it was needed only for operation of methane gas treatment during landfill operations, and it did not affect the timing of the construction or opening of the landfill. Thus, it is clear that but for the Corps' unlawful assertion of jurisdiction and unlawful denial of Plaintiffs' Section 404 Permit, Plaintiffs could have opened the landfill years earlier. The Chronology shows that there is no dispute that within two and one- half months after the Ninth Circuit mandate issued, Plaintiffs had all of the necessary permits in hand to commence construction of the landfill cells (located in portions of the site containing wetlands). Plaintiffs were able to complete the necessary construction and open the landfill by December 13, 1999, ten months after the Corps' jurisdiction was terminated. PE 78 at 959 (¶ 36). But for the Corps--and even if the state and local permit process leading to the CUP and solid waste permit had consumed the same amount of decision time, which as described below, it would not-- Plaintiffs would have been able to complete the permitting process and open the landfill within the same interval, i.e., within ten months after the issuance of the CUP on January 2, 1996. Plaintiffs, therefore, would have been able to open their facility on or about September 30, 1996, the day that the Corps denied their permit. Conversely, because of the Corps' actions, Plaintiffs could neither secure many of these final construction approvals, nor commence construction in wetlands, until the Corps' permit denial was overturned. Disregard of the Corps' assertion of jurisdiction or of its permit denial would have risked substantial CWA civil and criminal penalties. See Riverside Irrigation Dist. v. Stipo, 658 F.2d 762, 767 (10th Cir. 1981) (stating that it is unfair and "unrealistic" to expect party to test validity of Corps' position by commencing work without a Section 404 permit), aff'd sub nom., Riverside Irrigation Dist. v. Andrews, 758 F.2d 508 (10th Cir. 1985).

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Consequently, Plaintiffs were unable to open the landfill (and secure any landfill revenue) until December 13, 1999. PE 78 at 959 (¶ 36). 7 By comparing these two time frames, the only possible conclusion is that, at an absolute minimum, even if the Corps had caused no delay in securing the CUP and solid waste permit, its actions delayed the opening of the landfill by more than three years, from the end of September 1996 to December 13, 1999. As a direct result, therefore, Plaintiffs lost more than $10 million in landfill revenues based on the testimony of Defendant's own landfill valuation expert, Dr. Mitchell ($3.4 million/year x 3.25 years = $11.05 million). 8 This, by itself, satisfies the economic impact prong of the Penn Central balancing test, and entitles Plaintiffs to summary judgment on liability. 2. The issuance of the final state EIS, the CUP, and the solid waste permit were delayed for years because of the need to redo the state and local permitting process to address the same final landfill configuration that the Corps identified as potentially acceptable in 1995.

Plaintiffs have already demonstrated, both in their briefs and at oral argument, that the Corps' exercise of jurisdiction was permeated with extraordinary and inexcusable delay. It is beyond dispute that these delays directly and substantially protracted the decision time needed
7

In prior briefing, Defendant has referred to the litigation involving SSB 5729 in its account of the "complex" state and local process. This litigation is not relevant to the issues discussed here. See Pls.' Resp. at 18. SSB 5729 was not enacted until after the Ninth Circuit mandate issued, and both the Superior Court and the Washington State Court of Appeals ruled that, by its own terms, it was inapplicable to Plaintiffs' facility. See Weyerhaeuser v. TacomaPierce County Health Dep't., 96 P.3d 460 (Wash. 2004). In the state court litigation, the opposing plaintiffs never sought an injunction, and the litigation had no impact on the timing of landfill construction or operation. Indeed, the landfill had been in operation for more than three years when the Court of Appeals ruled unanimously in favor of LRI, RII, and the permitting agencies in 2004. As previously described, Dr. Mitchell's expert testimony, on behalf of Defendant, and corroborated by other experts, establishes an annual net income from disposal at Plaintiffs' facility of at least $3.4 million/year. See Pls.' Mem. at 61-62. At the damages phase of this matter, Plaintiffs' experts will testify to substantially larger damages.
8

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for Plaintiffs to secure their key discretionary permits, the CUP and solid waste permit. In this Section, Plaintiffs first will briefly recapitulate the more important instances of delay, and second, demonstrate the direct impact that these delays had on the state and local permitting process, specifically, how the Corps delayed issuance of the CUP and solid waste permit, which in turn were prerequisites for the final ministerial permits needed for construction. a. Significant Delays by the Corps

Key inexcusable delays in the federal permitting process included all of the following: 1. The Corps' entire nine- year unreasonable exercise of jurisdiction caused

extraordinary delay because, as the Ninth Circuit's ruling makes clear, based on its own Memorandum of Agreement with EPA ("MOA"), the Corps had already agreed to cede jurisdiction to state and local authorities to avoid duplicative determinations of CWA compliance based on the same standards incorporated into state and local law, administered at the state and local level pursuant to RCRA. From its inception, the Corps knew it was embarking on a duplicative exercise using the same standards as state and local authorities were bound to follow, contrary to an agreed allocation of jurisdiction that EPA and the Corps itself had fashioned in the 1986 MOA. It was this duplication, coupled with the potential for inconsistent decision- making employing the same standards, that the Ninth Circuit rejected as "unreasonable" and "unnecessary." See Pls.' Mem. at 18-19; Pls.' Reply at 25-28; Pls.' Resp. at 46-48; RII v. Corps, 151 F.3d at 1169. 2. The entire Corps' process, from acceptance of the permit application in August

1990 through denial of the Corps' Petition for Rehearing and Petition for Rehearing En Banc in the Ninth Circuit in February 1999, also caused extraordinary delay because the Corps' ultimate ground for denying the Section 404 Permit--that longhaul of waste from Pierce County was no more expensive for Pierce County than it was for neighboring jurisdictions--was obvious from the outset of the regulatory process, and required no further investigation and no federal EIS

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process to determine. 9 PE 80 at 1109-11 (¶¶ 14-20); Pls.' Mem. at 43-44. Nevertheless, the Corps did not even mention this as a possible ground for decision until a meeting between Plaintiffs and the Corps on January 18, 1995, some five years into the Corps' permitting process. PE 78 at 950-51 (¶¶ 9-10). Shortly thereafter, on January 26, 1995, Plaintiffs asked for an immediate decision from the Corps' District Engineer if this was to be the ground for decision because it obviated the need for further analysis and expensive completion of the federal EIS and Plaintiffs could have immediately appealed because it was unlawful as a ground for decision. Id. at 951 (¶ 11). On March 1, 1995, Plaintiffs demanded by letter that the Corps immediately render a denial, if that were to be the Corps' legal position. Id. at 951-53 (¶¶ 12-15). Nevertheless, the Corps refused to acknowledge whether this would be the ground of decision, proceeded with--but did not complete--the federal EIS process, and then ultimately denied the permit on that very ground, but more than 20 months after Plaintiffs had requested a denial (which would have allowed the appeal to commence 20 months earlier, and simplified the issues for appeal). PE 80 at 1109-10 (¶¶ 14-17). 3. The Corps unlawfully delayed issuance of its initial public notice for more than

nineteen months, not withstanding that, by regulation, it was required to issue public notice within fifteen days of receipt of the permit application, which Plaintiffs filed with the Corps on August 15, 1990. PE 10. The only exception to that requirement arises if, within fifteen days of the permit application, the Corps advises the applicant both that its application was "incomplete" and specifically identifies what informa tion is necessary for a complete application, so that the process can continue in a timely fashion. See 33 C.F.R. § 325.2(a)(2). This the Corps never did. Instead, rather than advise Pla intiffs that the application was "incomplete," on August 21, 1990 the Corps accepted the application, assigned it a file number, and promised "[w]e will process The longhaul cost estimates for the project were contained in the original state EIS which was provided to the Corps shortly after the Section 404 Permit application was filed. PE 11 at 86-90; PE 166. In fact, the longhaul cost estimates for Pierce County were based on the longhaul contracts of surrounding jurisdictions. See PE 11 at 89.
9

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your application as expeditiously as possible." PE 163. Contrary to this promise, and despite repeated requests from Plaintiffs to issue public notice (PE 79 at 1002-04 (¶¶ 9-17)), the Corps did not issue its public notice (and even begin the substantive federal regulatory evaluation process) until March 13, 1992, some nineteen months later (id. at 1004 (¶ 17), 1053-69). 10 Because of the delay in issuing the public notice, the Corps also delayed the receipt of public comments which prevented the Corps from even beginning its substantive evaluation of the permit during this entire period. 4. Without justification, the Corps also issued a second public notice on the project

in December 1995 setting forth the reconfiguration of the project with the resulting reduction in impacts to existing wetlands. See DSJ 31 at 423-25. This renewed notice was not required by regulations and resulted in substantial additional costs and delays due to the need for additional public comment and hearings. Id. at 426. 11

Defendant's representation in its summary judgment reply (Def.'s Reply at 13-14) that the Section 404 Application was "incomplete" is not only false, it is inconsistent with the Corps' own August 21, 1990 acceptance of the application (PE 163), and the failure of the Corps to identify anything that was "missing" as required lawfully to delay issuance of the public notice. Defendant asserts that the application was "incomplete" when originally submitted because Plaintiffs did not provide a draft Mitigation Study until November 1990, or an Alternatives Analysis until June 1992. Def.'s Reply at 13. However, on November 15, 1990, in preparation for an Interagency Pre-application meeting scheduled at the Corps' offices, Plaintiffs provided the Corps and All Interested Parties with both an analysis of planned Mitigation of Wetland Impacts and a Project Purpose and Alternatives Analysis. Thus, the alternatives analysis was provided to the Corps in the very same transmittal as the draft Mitigation Study Defendant acknowledged receiving in November 1990. See PE 164; Def.'s Reply at 13. In any event, neither the mitigation study nor the alternatives analysis were necessary for issuance of the public notice. Corps' regulations are clear that "issuance of a public notice will not be delayed to obtain information necessary to evaluate an application." 33 C.F.R. § 325.1(d)(9) (emphasis added). Bernard Goode, a long-time Corps employee and past national chief of the Regulatory Branch of the Corps, provided an expert report and testimony in which he detailed many examples of extraordinary, improper, and unreasonable delay by the Corps in this matter. Sections 7 and 10 detail the impropriety and scope of the public notice delays. PE 175 at 235253, 2354-56.
11

10

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5.

Similarly, as also described in the summary judgment briefing, the Corps delayed

for eighteen months issuing its wetland delineation, which was necessary to begin consideration of the wetland mitigation issues (but not necessary for a "complete application" as claimed by Defendant). See Pls.' Resp. at 23-24. It did so despite repeated requests by Plaintiffs to the Corps to either approve or disapprove the original wetland delineation by the Corps' own employee in November 1990, which had already been accepted by Plaintiffs in January 1991. PE 79 at 1016-20. The Corps ultimately approved this original field wetland delineation, but not until March 1992. Id. at 1042-52. This not only prevented inception of the wetland mitigation analysis on the federal side, but also created confusion as to whether the wetlands evaluated by the state and local agencies were the same wetlands being evaluated by the Corps. See Pls.' Reply at 23-24 (describing this delay and responding to Defendant's ill-conceived attempt to blame Plaintiffs for it). 6. At the outset of the Corps' exercise of jurisdiction in early 1990, the Corps'

project manager, Mr. Hartley, advised Plaintiffs' attorney, Ms. McNeill, that no federal EIS would be required. PE 79 at 1001-02 (¶¶ 7-8). Four years later, the Corps changed its mind and on March 23, 1994 announced that a federal EIS would be required. PE 78 at 950 (¶ 7). The environmental issues had already been addressed in the original state EIS, and an aggressive schedule was adopted for a draft federal EIS to be completed by December 1994. Id. Nevertheless, the draft federal EIS was a year late, and not issued until December 1995. See PE 40. Ultimately, the Corps abandoned the EIS process entirely, because its principal ground for decision--that longhaul was a viable alternative because neighboring jurisdictions were doing it--made any environmental analysis superfluous. PE 78 at 954 (¶¶ 19-21). (The draft federal EIS had concluded that that the project would have no significant adverse impact on the environment in any event. Pls.' Resp. at 53-55.) Thus, the entire federal EIS process was unnecessary, yet it substantially delayed the completion of the state process because (as described in the following paragraph) the federal EIS was based on the final project

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configuration that the Corps was willing to entertain, a configuration to which the state and local process had to conform to achieve permit consistency. 7. Once the Corps determined to require a federal EIS, the Corps repeatedly advised

Plaintiffs of the need to address federal agency "concerns" through a new landfill configuration, eliminating the relocation of South Creek. PE 80 at 1106 (¶ 4); PE 78 at 949-50 (¶¶ 4-6); PE 79 at 1004-09 (¶¶ 20, 26, 32-35). The Corps made it crystal clear, through repeated written and oral statements to Plaintiffs, that in order to have any chance of being federally permitted, the landfill had to be reconfigured to eliminate the relocation of South Creek, which had been part of the original configuration approved by Pierce County and evaluated in the original state EIS (issued in final form in November 1990), and to increase the wetland mitigation. Based on these repeated Corps statements, such as a 1993 letter that reconfiguratio n was "strongly encouraged," and the following 1994 letter that the permit would be cancelled unless Plaintiffs responded immediately to the Corps' question as to whether that reconfiguration would occur, Plaintiffs reasonably concluded that they had no alternative but to agree to reconfigure the project in order to have any chance of securing a Section 404 Permit. See PE 78 at 948-50 (¶¶ 3-6, 8); PE 79 at 1004-09 (¶¶ 20, 26, 32-35); PE 80 at 1106-08 (¶¶ 4-9). 8. Next, as Defendant admits, a "time consuming impasse" lasting "for over a year"

developed between the Corps and Plaintiffs as to the "project purpose." Def.'s Opp'n at 5-6. The Corps adopted the position, already rejected as unlawful by at least three United States Court of Appeals' decisions, 12 that disposal in a landfill operated by Plaintiffs' competitor was a "practicable alternative" even though it was clearly not available to Plaintiffs as the permit applicant. This further delayed the Corps' decision, even though, as already noted, the Corps had sufficient information to deny the Section 404 Permit on this (unlawful) ground the very day the application was filed on August 15, 1990. PE 80 at 1111 (¶ 20); Pls.' Mem. at 12-14, 43-44.

12

See Pls.' Mem. at 9-11; Pls.' Resp. at 19 (citing cases).

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9.

During the EIS process, the Corps diverted its attention to a later- filed application

for a permit to build a racetrack (which the District Engineer said was "his number `1' priority," PE 78 at 951 (¶ 12)) in violation of its own first-come-first-served regulatory requirements. Pls.' Mem. at 12. 10. Finally, once the Corps denied the Section 404 Permit, no development of the

landfill could go forward until its decision was reversed, or its exercise of jurisdiction overturned. The Corps vigorously defended its unlawful acts in federal court, even petitioning for rehearing and rehearing en banc before the United States Court of Appeals for the Ninth Circuit. This had the effect of continuing the ban on construction in any wetland portions of the site where the landfill cells were located until the petition was denied, and the mandate of the Court of Appeals issued, officially overturning the Corps' permit denial. That did not occur until February 10, 1999, more than nine years after the Corps first asserted jurisdiction. b. Impact of delayed reconfiguration on state and local regulatory process.

Given the interrelationships between the state and local and the federal permitting processes, significant impacts by the Corps' numerous inexcusable delays on the dependent state and local processes were inevitable. 13 At the time Plaintiffs filed their Section 404 Permit application with the Corps on August 15, 1990, the initial state process (based on the original landfill configuration) was well underway. Indeed, the draft state EIS was submitted to the Corps by Pierce County a mo nth after Plaintiffs filed their Section 404 application (see PE 164), and the final version of the original state EIS was transmitted on November 28, 1990 (see PE 166). Substantive evaluation of the permit on the state and local side had moved well into the

As set forth in Mr. Goode's expert report at Section 10.5, under the most charitable interpretation, the Corps spent 2,098 days to reject Plaintiffs' application once it was deemed "complete" by the Corps. In contrast, the average time for rejection of a Section 404 permit application nationally during the two-year period October 1, 1991 to September 30, 1993 was 285 days. PE 175 at 2356.

13

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decision phase (the original CUP was issued on April 10, 1991), but the Corps delayed for nineteen months in even issuing public notice of the project, which was necessary before the Corps could receive public comments about the project and begin substantive consideration. 14 Thus, the federal substantive and evaluative process did not even start until after the Corps received public comments in response to the belated public notice. A parallel delay of the same time, already described, concerned officially delineating the wetlands on the property. Substantive environmental review and consideration of acceptable alternative configurations was also set on the back burner by the Corps because of its intransigence on the issue of what "practicable alterna tives" were available, and whether the Corps could demand that Plaintiffs accept as their own project purpose an alternative that diverted the entire Pierce County solid waste stream to Plaintiffs' competitor in Eastern Washington via longhaul of waste. Pls.' Mem. at 9-11. That delay was followed by the Corps' prioritization of a later- filed application for a horse racetrack in Auburn (which the District Engineer considered a higher public priority) notwithstanding the Corps' first-come- first-served policy. Id. at 12. Next, by an increasingly stringent series of letters and statements to Plaintiffs in regulatory meetings, the Corps made it clear to Plaintiffs that their only chance of success in the federal process would be based on a reconfigured project, without any relocation of South Creek, and with additional wetland mitigation aimed at protecting red- legged frogs, rather than salmon enhancement (despite the contrary wishes of state fish and game officials). 15 As noted, Defendant's claim that Plaintiffs' Section 404 Application was "incomplete" is frivolous as well as inconsistent with the Corps "acceptance" of the application on August 21, 1990, and its failure--required to delay public notice--to reject the application as "incomplete" and advise the applicant specifically what was missing. To suggest that the Corps had insufficient information to issue public notice for eighteen months, when it had a complete draft EIS in hand a month after Plaintiffs filed their application, is absurd. Plaintiffs initially proposed the relocation of South Creek to restore the meandering channel and corresponding salmon habitat and reestablish the surrounding wetlands. The creek had previously been channelized and the surrounding wetlands drained. Despite the preference of fisheries experts for restoration of salmon habitat by restoring the stream's meandering configuration (PE 79 at 1072, 1077), and the Hearing Examiner's approval of that configuration,
(Footnote continued)
15 14

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For example, on October 23, 1992, after advising Plaintiffs about federal agency concerns with respect to whether the existing configuration adequately protected frogs, the Corps wrote that the comments were provided "to assist you and your client in developing a proposal that addresses agency concerns." PE 79 at 1071. Obviously, the implication was that the existing project proposal did not meet federal agency concerns and was not permittable. The Corps added: We encourage you to discuss these major issues with your client and consider your alternatives to addressing these concerns. Several alternatives include relocating the project, modifying or reducing the scope of the project to reduce impact to resources, obtaining additional acreage to develop offsite mitigation, and incorporating many of the agency recommendations into the project plans, in addition to conducting the requested studies. Id. (emphasis added). A year later, the Corps' directive became even more pointed. The District Engineer wrote Plaintiffs on November 1, 1993, and, referring to the prior suggestion in the October 23, 1992 letter, stated that the Corps understood that Plaintiffs were now considering modifying the project to address federal resource agency concerns. He then advised Plaintiffs: In addition to the offsite mitigation that you are considering, I strongly encourage you to also consider revising the project onsite to avoid or reduce impacts to wetlands and streams to the maximum extent practicable. Id. at 1098 (emphasis added). Then, on January 28, 1994, Mr. Mueller, the Chief of the Corps' Regulatory Branch (in addition to demanding that Plaintiffs accept the Corps' redefinition of its "project purpose") stated that that the application would be cancelled within 30 days if Plaintiffs did not respond to the Corps' question as to "whether or not you intend to significantly revise the project and/or mitigation plan," a reference to the District Engineer's letter that "strongly encourage[d]" reconfiguration. Id. at 1100. Corps' officials also advised Plaintiffs' wetland consultant, Mr. Barrows, that environmental concerns about the project could potentially be

the Corps preferred to maintain the ditched channel and manage the area to protect red- legged frogs instead of salmon.

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resolved if the relocation of the creek were avoided and additional wetland mitigation provided.16 Thus, Plaintiffs clearly understood that their only chance of success in getting a federal Section 404 Permit lay with reconfiguring the project to address these federal concerns. PE 78 at 948-50 (¶¶ 3-6, 8); PE 79 at 1004-09 (¶¶ 20, 26, 32-35); PE 80 at 1106-08 (¶¶ 4-9). As Defendant admits, however, this reconfiguration, although necessary to meet the Corps' "concerns," was not formally set forth until December 1995, when the Corps' draft federal EIS was published and it became the subject of a revised public notice issued by the Corps (DSJ 31 at 423-25), more than five years into the federal permit process. Def.'s Mem. at 24-25. Defendant extols the reconfiguration (id.), but ignores the profound impact reconfiguration had on the state and local permitting process (because of the need that the permitted configurations be identical in all permits). Moreover, although Corps' officials advised Plaintiffs and their wetland consultant, Mr. Barrows, that reconfiguration could alleviate Corps' concerns about permitting the project, and thereby induced Plaintiffs to reconfigure the project (e.g., PE 80 at 1105-08 (¶¶ 2-6, 8); PE 79 at 1008-09 (¶¶ 33-35)), the Corps nonetheless denied the permit anyway, and primarily on unrelated non-environmental grounds (longhaul as a "practicable alternative"). 17

As Mr. Barrows testified in his Declaration--after the Corps had suggested to Plaintiffs that they retain Mr. Barrows as a Section 404 and wetland specialist to meet with the Corps and analyze whether the project could secure a Section 404 Permit (see PE 79 at 1008-09 (¶¶ 3233))--both the Corps' project manager and his supervisor told Mr. Barrows that the agencies needed something that further reduced impact to wetlands, that a 20% reduction would help, that mitigation issues could be resolved, and that "stream relocation" was one of the main project issues to be resolved. Mr. Barrows, believing that the wetland issues could be resolved by increasing mitigation and avoiding stream relocation, therefore concluded, based on the statements made by responsible officials in these meetings, that "the project could be permitted [by the Corps] if RII could demonstrate that longhaul was unreasonably expensive when compared with the cost of the proposed project." PE 80 at 1105-08 (¶¶ 2-6, 8). The Corps' Record of Decision ("ROD") acknowledges the scope and significance of the changes in the landfill configuration, but understates the Corps' own involvement in engineering the changes through its letters and comments to Plaintiffs. The ROD states:
(Footnote continued)
17

16

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This reconfiguration, even though it was ultimately irrelevant to the Corps' decision process because of the ult imate ground for decision, had profound impacts on the state and local permitting process because Plaintiffs and the agencies had no alternative but to accept the Corps' preferred configuration and redo the state and local permits (or run the risk of two inconsistent sets of permits for mutually exclusive project configurations). As a result, Plaintiffs and the local agencies had to essentially start over--conduct new hearings, prepare a new draft and final state EIS, and issue a new CUP based on the configuration endorsed by the Corps. This was accomplished in a twelve month period culminating with the issuance of the CUP in January 1996. 3. Without the Corps' exercise of jurisdiction, a more streamlined state and local process, although "complex," would have resulted in an operational landfill six or seven years prior to the actual opening date.

In addition to analyzing direct Corps' impacts on the state and local permitting processes, and resultant effects on initiation of construction and opening of the landfill facility, it is also instructive to examine how state and local permitting would have proceeded if the Corps had never asserted jurisdiction in the first instance (in other words if the Corps had acted lawfully rather than unreasonably and illegally). Without question, and based on undisputed facts about

During the preparation of the Draft EIS, the Applicant made revisions to the project in an attempt to address agency and public concerns. Due to design changes to the location of the landfill cells and relocation of roads and ancillary facilities, direct we