FINAL DETERMINATION OF THE ASSISTANT ADMINISTRATOR
FOR EXTERNAL AFFAIRS CONCERNING THE
SWEEDENS SWAMP SITE IN ATTLEBORO, MASSACHUSETTS
PURSUANT TO SECTION 404(c) OF THE CLEAN WATER ACT
I. INTRODUCTION
Section 404 of the Clean Water Act (33 U.S.C. 1251 jet seq.)
regulates the discharge of dredged or fill material to waters of
the United States. Waters of the United States are defined to
the broadest extent possible under the Commerce Clause of the
Constitution, and include most wetlands. Such discharges are
allowed only to the extent authorized by a section 404 permit
and not prohibited or restricted by EPA pursuant to section
404(c). Congress established this regulatory scheme in recogni-
tion of scientific evidence which indicates that discharges of
dredged and fill material can result in the destruction or de-
gradation of aquatic areas with important public values. Wet-
lands play an essential role in the hydrologic cycle, purify
water by holding nutrients and recycling pollutants, shield
upland areas from storm damage, and provide vital food resources
and habitat for fish and wildlife.
The 404 permit program recognizes both developmental and
environmental values by focusing on protecting the resource
(that is, the biological, physical, and chemical integrity of
the Nation's waters) rather than on regulating development per
se. The public has a legitimate expectation in the reasonable
protection of private property rights, including the right to
make reasonable, beneficial use of one's property. Citizens
also expect, however, that the protection of property rights
will be consistent with the need to protect resources that are
beneficial to all. This nation would be ill-served by a policy
which does not take account of the legitimacy of interests in
both environmental protection and economic development. The
statutory structure created by Congress in section 404 attempts
to accommodate both sets of interests.
The section 404 permit program seeks to minimize adverse
effects of discharges of dredged or fill material through appli-
cation of the section 404(b)(1) Guidelines (regulations developed
by the Environmental Protection Agency in conjunction with the
Army Corps of Engineers). The Guidelines prohibit discharges
which cause "significant degradation" to the aquatic ecosystem or
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for which there are practicable, less damaging alternatives, and
require adoption of practicable measures to minimize adverse
effects of the discharges that are allowed. Although permits are
issued by the Army (acting through the Corps of Engineers) or by
approved states, the Act also provides EPA an opportunity under
section 404(c) to exercise the final judgment on whether a parti-
cular discharge will, have unacceptable adverse effects on aquatic
resources. Before making such a section 404(c) determination,
the Administrator must consult with the Chief of Engineers, the
landcwner, and the applicant in cases where there has been an
application for a section 404 permit.
The Administrator has delegated this authority to make a
final determination under section 404(c) to the Assistant Admin-
istrator for External Affairs, who is EPA ’s national section 404
program manager.
In this case, Pyramid Companies (Pyramid) has proposed to
fill 32 acres of forested wetlands and to alter an additional 13
acres of forested wetlands at a site called Sweedens Swamp in
Massachusetts. The purpose of this proposed discharge of dredged
and fill material is to construct a shopping mall and appurtenant
facilities. Pyramid has also offered to create 36 acres of
artificial marsh wetlands to compensate for the loss of Sweedens
Swamp, and has offered to post a $1 million performance bond on
the man-made wetland’s construction.
The Corps of Engineers gave great weight to Pyramid’s offer
and concluded that the project should be allowed to proceed, not-
withstanding questions concerning the availability of upland
alternatives. The Corps concluded that Pyramid’s proposed wet-
land creation (or “mitigation”) would yield an equivalent or
better environmental result than preserving the existing wetland.
Because of the site specific and generic implications of wetland
creation and its reLationship to EPA ’s and Corps’ longstanding
policy of avoiding the destruction of existing wetlands when
the applicant has other practical alternatives available, EPA
initiated this section 404(c) proceeding.
After full consideration of the record in this case and
after consultation with the Corps, Pyramid and other interested
parties, I have determined that the discharge of dredged and
fill material for the purpose of constructing a shopping mall
at the Sweedens Swamp site should not be allowed. My findings
and reasons for this determination are, in summary form, as
follows:
Although mitigation is a valuable and important tool in
wetland preservation and enhancement, it is still an uncertain
science at best. EPA encourages mitigation efforts when there
are no practical alternatives other than filling in a wetland
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for a particular project and the project does not cause significant
degradation to aquatic resources. EPA is also attempting to
improve the science of artificial wetland creation. Nonetheless,
the science of wetland creation, particularly for a project of the
size and type proposed here, is not sufficiently advanced to land
the requisite certainty to a determination that existing benefits
can be sacrificed on the promise that a new and different wetland
will be “better” or even “equal” in value.
In reaching my decision, I have carefully considered the
nature of the wetland at issue here. The comments in the record
range from characterizing Sweedens Swamp as a “dump” to calling it
a wetland “oasis.” The truth is the Swamp is neither dysfunctional
and useless, nor is it a pristine wetland of supreme individual
value. It is, in the non-perjorative sense, an ordinary swamp.
The fact that it is ordinary should not lead us to alter our
policy policy of looking first to see whether there are practical
alternatives to the destruction of the wetlands. I believe that,
because of its confidence in the mitigation proposal, the Corps
did not engage in its usual careful consideration of alternatives.
I find that there was a feasible alternative site available
to Pyramid to fulfill its project objectives. And it is unaccept-
able to trade the certain benefits provided by this functioning
wetland for the uncertain benefits of a large scale wetland
creation. The language, regulations and purpose of section 404 all
point to a fundamental principle: The degradation or destruction
of special aquatic sites, such as wetlands, should be avoided if
there are practical alternatives. This is neither a new nor a
startling principle; it reflects a common sense approach to the
preservation of a dwindling and important national resource.
What is unusual in this case is the factual setting in which
the application of the principle arises. Pyramid now cannot
realistically obtain the alternative site that I find was avail-
able to it. The site (North Attleborough) is owned by a compe-
titor. Pyramid argues that the present unavailability of the site
is dispositive and that it should be allowed to proceed with its
project. I do not believe that fact can be given determinative
we i gh t.
When Pyramid entered th. market area, it decided not to
investigate the availability of the North Attleborough site,
concluding that the site was not feasible for its project. That
may well, have been a reasonable business judgment for Pyramid to
make. But in relying upon that judgment and in failing to pursue
the alternative, Pyramid took the concomitant risk that the
marketplace would prove it wrong in its assessment of the
feasibility of the site. That is what happened in this case. A
competitor, entering the market contemporaneously with Pyramid,
has taken the requisite steps to develop a similar project on the
North Attleborough site. I cannot ignore that fact, nor can I,
consistent with the purposes of section 404, lift from Pyramid
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the risk that it assumed in relying upon its business judgment
that the North Attleborough site was infeasible. Pyramid’s
mitigation plan simply does not justify a deviation from the
principle that wetlands should not be destroyed if practical
alternatives are available.
In reaching my decision, I have also viewed this project in
the context of broader regional issues. There has been a signifi-
cant cumulative loss of wetlands in Massachusetts, and the state
has put into effect stringent new limitations on wetlands destruc-
tion, effectively prohibiting any fill of more than 5,000 square
feet of bordering inland wetlands. While this should not be
viewed as a dominant factor -- particularly since Massachusetts,
by grandfathering the Pyramid project, has given the project the
necessary state permits -- it does reflect a qualitative assess-
ment of the importance of the remaining wetlands in the state,
and is a useful guidepost in judging the unacceptability of this
fill.
Finally, on a more general note, I believe that both
environmental and developmental interests are best served by a
section 404 process that works efficiently and predictably.
Great improvements in this regard have been made in the permit
process. This particular section 404(c) proceeding has attracted
a great deal of controversy and attention and has taken time to
resolve. I do not view that, however, in any way as a flaw in
the process. Pyramid made a novel offer of large scale offsite
wetland creation in an effort to secure a permit for a site that
it bought with full knowledge of the environmental problems associ-
ated with its development. That offer raised admittedly difficult
issues where assessments of risks and benefits may legitimately
differ. As indicated by the decision here, EPA will tend to be
more conservative in its assessment of scientific uncertainties.
In leaving the final determination of “unacceptability” to EPA,
however, Congress, contemplated that EPA would apply its expertise
on issues such as mitigation and would take a conservative approach
to our nation’s unique aquatic sites. I have carefully weighed
all aspects of the proposed permit and considered both its site
specific and precedential implications. I am convinced that
approval of the project, given the existing uncertainties and
alternatives, would have unacceptable adverse environmental
consequences.
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II. PROJECT DESCRIPTION AND HISTORY
Pyramid proposes to fill 32 acres of wetlands in Sweedens
Swamp in Attleboro, Massachusetts to build a regional shopping
mall. (See Figures I-Il.) If permitted, this would be the largest
authorized wetlands fill project in Massachusetts in over five
years. Pyramid proposes to mitigate the adverse impacts on
water quality and wetlands by excavating thirteen additional acres
of wetlands and nine acres of uplands on site to create artificial
wetlands. The alteration of the thirteen additional acres of
natural wetlands is required to provide onsite capability for
the storage and treatment of stormwater runoff from the develop-
ment. Creation of thirty six additional acres of wetlands offsite
would also be attempted.
Pyramid tirst formally presented its proposal, which at the
time included only onsite mitigation, to the federal agencies in
May of 1984. EPA and the U.S. Fish and Wildfife Service (FWS)
expressed concern over the loss of wetlands !/ and requested that
the Corps of Engineers (Corps) exercise its discretion to require
an individual permit. The Corps agreed and so notified Pyramid;
the permit application was submitted in August of 1984. After
participating with Pyramid, the Corps and FWS in an evaluation of
the wildlife habitat value of the site, EPA wrote letters to the
Corps again expressing concern over the impacts of the proposal,
emphasizing the presumption in the section 404(b)(1) Guidelines
that practicable alternatives are presumed to exist for non-water
dependent activities (such as shopping malls) in special aquatic
sites (e.g., wetlands). The Cc.rps hired a consultant to examine
the question of practicable alternatives; his January, 1985 report
concluded that both Sweedens Swamp and a site in North Attleborough
were feasible for development of regional shopping malls. New
England Development, a competing developer, proposes to build a
shopping mall at the North Attleborough site.
In April of 1985 Pyramid added a proposal for offsite
mitigation to the project. The Corp’s Division Engineer in May
of 1985 prepared a recommendation that the permit be denied, con-
cluding that Sweedens Swamp provides excellent wildlife habitat
for species of local importance. Corps Headquarters in Washington,
D.C., after reviewing the Division’s recommendation, determined
that mitigation could make the applican:’s proposal the alter-
native with the least adverse effect on the aquatic environment
and directed the Division Engineer to prepare a notice of intent
to issue a permit.
1/ EPA’s section 404(b)(1) Guidelines, which provide substantive
enviornmental criteria used in section 404 permitting decisions,
classify wetlands as “special aquatic sites,” and characterize their
degradation or destruction as “among the most severe environmental
impacts covered by these Guidelines.”
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The Corps Division prepared a proposed permit, but predicated
permit issuance on the expected success of orisite and offsite
mitigation and on steps to improve water quality. The proposed
permit continued to characterize Sweedens Swamp as an excellent
wildlife habitat.
EPA’s Regional Administrator (Region I) Michael R. Deland,
initiated section 404(c) action on July 23, 1985 by providing
to the Corps and the applicant the opportunity for consultation
on the discharge. FWS’ Regional Director, by letter of July 25,
1985, indicated his support for EPA’s action because the project
would result in “significant avoidable adverse impacts to wildlife
and to the wetland habitat upon which that wildlife depends.”
The Region entered into discussions with Pyramid and conducted a
public hearing at which both supporters and opponents of Pyramid’s
mall spoke (the majority attending favored the mall). Over 1200
comments were received during the public comment period. After
considering this information, and comments received by the Corps
on Pyramid’s offsite mitigation plan, the Regional Administrator
on March 4, 1986 made a recommended determination to prohibit
the specification of Sweedens Swamp as a disposal site for fill
material.
The Recommended Determination (RD) was received in FPA
Headquarters on March 5, 1986, and the administrative record was
received on March 14, 1986. Meetings were held by the Assistant
Administrator of External Affairs and by staff in EPA Headquarters
with representatives of Pyramid on March 21 and 25, 1986, and
with Department of Army/Corps of Engineers on March 27 and April 3,
1986. Meetings were also held with environmental and community
interest groups on March 21 , with representatives of New England
Development on March 26, and with State and local representatives
on April 4, 1986. In addition, several meetings were held with
members of the U.S. Congress during the Headquarters’ review of
this case. Thousands of letters were received supporting the
building of the mall; hundreds were received supporting a prohi-
bition of the discharge.
The Assistant Administrator for External Affairs visited
Sweedens Swamp, the North Attleborough Mall site, and the pro-
posed Tiffany Street offsite mitigation area with EPA Region I
s .aff on November 20, 1985.
Appendix A contains a month-by-month chronology of this case.
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III. DESCRIPTION OF SITE
The detailed description of the 82-acre site and its present
values which appears at Section III of the recommended determina-
tion is hereby incorporated by reference. The key points are
summarized below.
The 49.5 acres of wetlands on the proposed project site are
classified as palustrine forested, hardwood deciduous, seasonally
flooded. They are characterized by a forest canopy consisting
predominately of red maple trees over shrub and herbaceous layers.
There are smaller areas of emergent wetland, shrub swamp, streams,
and standing water in part of the wetland, which provide more
diversity to the habitat.
The forested wetlands of the site have excellent vertical
structure and provide habitat for several migratory bird species
and a variety of resident mammals and amphibians. The wetlands
also provide valuable summer habitat for many birds from sur-
rounding areas which seek the abundant food sources (fruits and
insects) as well as the shade and drinking water found there.
Birds observed using the site include mallard and black ducks,
the redshouldered hawk and the red-tailed hawk (avian predators
that feed on small mammals that inhabit wooded swamps), the swamp
sparrow, the Kentucky warbler and the common yellowthroat. A
full list of all the species observed using the site is included
in the recommended determination.
Extensive adjacent development has made Sweedens Swamp an
isolated or “island” wildlife habitat. While this may restrict
the number of species using the site, its size is sufficient to
maintain a diverse resident wildlife population. Island ecosystems
in highly developed areas are important because they provide the
last remaining habitat for species that have been extensively
disturbed.
The Corps and the FWS characterize the site’s wildlife habitat
as excellent. FWS designates the site as Resource Category 2,
the second highest in its system for classifying habitat. The
Massachusetts Division of Fisheries and Wildlife identifies the
area as a “high-quality red maple swamp.” EPA concurs that
Sweedens Swamp provides excellent wildlfe habitat.
A number of commenters have characterized Sweedens Swamp as a
“dump.” Trash and debris are present at the site, primarily along
the highly visible perimeter and on the disturbed upland portions
of the site. However, only a few scattered piles of debris litter
the interior of the wetland; EPA estimates that dumping directly
affects less than one tenth of the entire 82-acre site, little of
that wetlands. Although unsightly to the casual observer, the
refuse has little direct bearing on the wetland values provided by
Sweedens Swamp. Parts of Sweedens Swamp have also been subject to
other forms of human disturbance, for example, paving and motor
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bikes. While this may have some impact on species using the
site, the Corps found that “large segments of wetland remain
relatively isolated from human impact.” EPA agrees that the
habitat values have not been significantly altered by this
disturbance.
Pyramid and others have described the site as a wetland
“in name only” and contended that it “does not function as a
true wetland.” These assertions are incorrect. Based on the
information in the record concerning soil characteristics,
vegetation and hydrologic regime, Sweedens Swamp is a typical
New England red maple swamp which provides excellent wildlife
habitat. EPA does not concur that Sweedens Swamp is a
dysfunctional or low quality wetland.
Sweedens Swamp is also an effective area for storing flood
water and moderating peak flows. Since the area draining into
the wetlands is relatively small, these hydrologic values are
important primarily when considered cumulatively. In terms of
groundwater, this site acts mainly as a discharge area rather
than a recharge area.
Because at least 30% of the total annual flow entering the
site has the opportunity to contact vegetation, Sweedens Swamp
has the capability to remove waterborne pollutants and to improve
water quality.
In summary, Sweedens Swamp provides many wetland values such
as wildlife habitat, food chain production, natural flood storage,
groundwater discharge, and water quality renovation. While it is
neither a unique wetland nor habitat for endangered species, this
does not mean that Sweedens Swamp is unworthy of protection under
the Clean Water Act. Average healthy functioning wetlands, such
as Sweedens Swamp, comprise the bulk of our nation’s wetland
wildlife habitat.
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IV. ADVERSE EFFECTS OF THE PROJECT
Construction of a large shopping center at Sweedens Swamp
would drastically change the hydrology, soils, and biology of
the area.
The location of the mall building, parking lot, and access
roads are shown on Figure III. The western wetland basin would
be completely filled. The mall, itself would result in the filling
of 32 acres of forested wetlands. Thirteen additional acres of
forested wetlands would be excavated or otherwise altered to
create marsh as part of the proposed onsite (i.e. work adjacent
to the mall) mitigation.
The proposed onsite mitigation, if successful, would result
in the conversion of 13 acres of forested wetlands and nine
acres of uplands to 22 acres of emergent wetlands, shrub swamp
and open water. Four acres of the existing forested wetlands
would be preserved within the proposed onsite mitigation area.
Thus, of the existing 49.5 acres of forested wetlands, only four
and a half acres would remain after the construction of the
shopping mall as well as the onsite mitigation. (The onsite
mitigation was designed, at least in part, to provide necessary
restoration of flood storage capacity and to handle new water
pollution from the
proposed mall.)
A. Wildlife Effects
As discussed in Section III, Swedens Swamp provides a large,
diverse habitat for a variety of wildlife, particularly species of
birds, small mammals, and amphibians, that are typical of New
England forested swamps. A substantial part of this habitat would
be eliminated or altered. The numerical habitat assessment model
(Appendix B) confirms that the proposed project would adversely
affect wildlife values, through the loss of both wetland and upland
habitat. There would be an outright loss of 45 acres of forested
wetland, and a significant loss of the existing value of wildlife
habitat as illustrated by the model. The proposed shopping mall
would affect wildlife that currently utilizes Sweeden Swamp and
would also alter available wildlife habitat.
Construction activities within the propos”d mall site would
convert 32 acres of forested wetlands to uplands which, for the
most part, will be non-vegetated impervious surfaces. The observed
mami al species would retreat from construction activities. How-
ever, as previously discussed, Sweedens Swamp is an island habitat
and is not connected to adjacent habitats. When construction on
the mall site begins, mammals will be dispersed into remaining
portions of Sweedens Swamp (depending, of course, upon how much of
the onsite mitigation is completed before construction) and away
from Sweedens Swamp. Since the areas in the vicinity that might
provide habitat for mammals displaced from Sweedens Swamp are
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FIGU1 3. f1i u LocATlorl Wumm Si tis Sw p
Plan provided by Pyra*Ld
SCALE: I’ 4OO
-j
S..
Newport Avenue Gallerid
ATTLEBORO MASS.
(BRISTOL COUNTY)
PLANS ACCOMPANYING P(TITION OF
PYRAMO NWPORT GAl I FR’S mn. , ”
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not connected, it may be assumed that some of the mammals
displaced from Sweedens Swamp would perish. Construction acti-
vities would also displace the bird species observed in Sweedens
Swamp.
The displacement would particularly adversely affect nesting
species, such as the northern flicker, gray catbird, song sparrow
and white-breasted nuthatch, and species which prefer forested
wetlands, such as the red-shouldered hawk and the Kentucky warbler.
The remainder of the observed bird species are generalists and
less specific in their habitat requirement. Therefore, it is
assumed that, once displaced, these species will have a better
chance of finding replacement habitat.
In addition to affecting wildlife that currently utilizes
Sweedens Swamp, the project will also alter available wildlife
habitat. From a broad perspective, the loss of forested wetland
habitat would be permanent (with or without the proposed mitiga-
tion). From the inid-1950’s to the mid-1970’s the U.S. lost over
six million acres of forested wetlands. Many Massachusetts Con-
servation Commissions, appointed bodies responsible for carrying
out 4 assachusetts’ wetlands law at the local level, have expressed
grave concern over the potential loss of this amount of wooded
swamp, as well as its precederitial effect.
Pyramid proposes to attempt to compensate for adverse wildlife
impacts at the site by altering existing wetland habitat and by
creating wetlands from upland areas. This attempt at compensation
involves both “onsite mitigation” (i.e., work adjacent to the mall
itself) and “offsite mitigation” (i.e., work at a sand and gravel
mining site on Tiffany Street approximately 2 miles from the pro-
posed mall site).
Turning first to onsite mitigation, Pyramid’s proposal
consists of attempting to create emergent marsh, shrub swamp and
open water from existing wooded wetland and upland. Because only
four acres of the wetland would be left in its natural state, the
initial dredging and filling of the site would destroy nearly all
its existing value for wildlife. The onsite mitigation area would
also have minimal value immediately after excavation and regrading.
If wetland vegetation in the mitigation area were successfully
established, wildlife would probably begin to resettle in the
.cea; however, the degree of resettlement may he affected due
to greater disturbance from the activity at the mall. The low
profile emergent wetlands proposed for this area would not buffer
wildlife from disturbance of the highways (much less from the
mall itself) as effectively as the existing wooded habitat does.
Even if successfully established, the onsite wetlands would be
substantially smaller and of a different type than those lost.
The vegetation in these wetlands, although potentially producing
more pounds per acre per year, would exhibit less spatial hetero-
geneity, structural diversity, and standing biomass than the
existing swamp. Further, these new wetlands would not provide
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habitat for the same numbers and types of species displaced or
eliminated. The habitat assessment also shows that there
would be a substantial drop in both wetland acres (-23) and wild-
life habitat values. 2/
In an attempt to offset the net loss of habitat value at Sweedens
Swamp, Pyramid proposed additional offsite mitigation. This addi-
tional mitigation would occur at a location two miles away where
Pyramid would attempt to create 36-acres of emergent wetlands,
shrub swamp and open water from an existing 30 acres of upland and
6 acres of open water. The habitat assessment model indicates that,
even if 10O successful, the net increase in habitat values at this
offsite location would not compensate for those lost at the proposed
shopping mall site. Although Pyramid plans to provide a net increase
of six acres of wetland under its mitigation proposal, any increase
in wetland acreage (or numerical habitat values) will come at the
expense of existing wetland and upland areas and their respective
numerical habitat values. Pyramid has stated that, unless required
by EPA pursuant to its section 404(c) authority, it would not have
the offsite mitigation in place and functioning prior to beginning
work at Sweedens Swamp.
As previously mentioned, the proposed onsite and offsite
wetlands, if successful, would provide habitat for a different
species mix than that currently utilizing Sweedens Swamp. These
include waterfowl, shorebirds as well as a potentially different
species mix of mammals, reptiles and amphibians. owever, many
of the small mammals and bird species typical of Sweedens Swamp
would not usually us the new wetlands. While some species of
wildlife might migrate to the created wetlands, their numbers and
variety would not be the same as exist at Sweedens Swamp. A recent
study 3/ in Massachusetts suggests that breeding bird communities
in forested wetlands are significantly related to vegetation
structure and hydrology. The study found that, generally, the
most structurally diverse and most poorly drained forested wetland
sites (such as Sweedens Swamp) have the most abundant and diverse
breeding bird populations. In addition, raptors (predatory birds)
such as the red-shouldered hawks observed at Sweedens Swamp would
be especially affected. Recent research by the USFWS 4/ in
2/ This net loss is demonst:ated numerically in Appendix B.
— However, as the Appendix explains, the results of the
numerical habitat assessment must in any case be viewed with
caution because several factors may affect the precision and
accuracy of the results.
3/ Swift, B.L., J.S. Larson and R.M. DeGraff. 1984. Relationship
— of Breeding Bird Density and Diversity to Habitat variables
in Forested Wetlands. The Wilson Bulletin, Vol. 96(1): 48-59.
4/ USFWS Research Information Bulletin No. 85-19, November 1985.
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Connecticut indicates that these predatory birds are consistently
associated with mature, bottomland forests and may be particularly
sensitive to land pattern changes in their habitats.
B. Hydrological Effects
Based on the record, the impacts to surface water quality from
the proposed project appear to be minimal in comparison to other
sources of contamination that already exist in the Ten Mile
River watershed, although the amount of pollution from the mall
site will increase the overall pollutant load to the watershed.
The amount of surface water degradation resulting from mall con-
struction and use will not itself be very significant if effecttive
erosion and turbidity control structures are installed during
construction and surface water runoff quality is maintained at
acceptable levels. In view of the small watershed and associated
flows and Pyramid’s specific on-site plans, no significant adverse
effects on downstream flooding are anticipated as a result of
the completed project. It also appears that there would not be
adverse impacts from Pyramid’s proposed project upon public
drinking water supplies, including the Seekorik Water District
wells, if effective erosion and turbidity control structures are
installed and maintained during construction and surface water
runoff quality is maintained at acceptable levels, in accordance
with the proposed permit conditions.
Summary
Pyramid’s proposal would have an immediate and adverse impact
on wildlife habitat. Thirty two acres of wetland with high habitat
value would be filled. Moreover, the value of these wetlands to
store flood waters, discharge groundwater, and maintain water
quality would be lost. In order to provide compensatory flood
storage and attempt to replace other wetland values, Pyramid would
dredge or fill all but four acres of the remaining forested wetlands
and upland. Even assuming full success of the onsite mitigation
proposals, there would be a net loss of nearly 24 acres of wetlands
and a concomitant decrease in the wildlife value of the site. In
an attempt to provide additional compensation, Pyramid proposes to
construct 36 acres of artificial wetlands at an offsite location.
These wetlands, even if successful, would not serve the same species
mix deLtroyed and therefore would not fully replace the lost habitat
values t Sweedens Swamp as calculated by the habitat evaluation
method (Appendix B). Thus, the offsite mitigation does not sub-
stitute for, but rather seeks to compensate for, the loss of wet-
lands at Sweedens Swamp.
However, given the circumstances surrounding the Sweedens Swamp
site, it does not appear, based upon available information, that
the proposed Attleboro Mall project with successful onsite mitiga-
tion would materially adversely affect downstream water quality,
flooding or drinking water supplies.
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In short, the proposed mall project, even with successful
orisite mitigation, would have adverse impacts on wildlife values
protected by section 404(c) of the Act. In determining whether
these adverse impacts are unacceptable, it is relevant to examine
next the avoidability of this wetland loss by reviewing whether
there are practicable, less environmentally damaging alternatives
to the proposed project.
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V. ALTERNATIVES TO THE PROPOSED PROJECT
A. Why alternatives are relevant
In determining whether a proposed project would be likely to
have an “unacceptable adverse effect” on the aquatic environment,
EPA must evaluate both the loss of the resource and the unaccept-
ability of that loss. The section 404(c) regulations state that
relevant portions of the section 404(b)(1) Guidelines (40 CFR
Part 230) should be considered in judging the unacceptability
of a discharge under section 404(c). 5/
Concern has been expressed that EPA is, in considering the
issue of practicable alternatives in a section 404(c) action, in
effect “second—guessing” the Corps.
EPA’s statutory role is not to duplicate the Corps’ exercise
of its statutory responsibility of issuing or not issuing permits.
Rather, EPA’s statutory role is to determine whether filling a
particular aquatic site would have an “unacceptable” adverse effect
on the resources enumerated in section 404(c). As a matter of
common sense, as well as regulatory practice, the “acceptability”
of an adverse effect may depend on the extent to which that effect
is avoidable. The alternatives provisions, as well as other por-
tions of the section 404(b)(1) Guidelines, thus are necessarily
relevant to a section 404(c) determination.
Further, the mission of EPA is to protect human health and the
environment. In this 404(c) proceeding, the impact of mitigation
is a scientific assessment for which EPA has particular expertise.
The status and uncertainty of mitigation science must be evaluated
in the context of the status and certainty of natural environmental
values being lost. Because the science of mitigation is, in EPA’s
judgment, uncertain and high-risk, the section 404(c) decision
must analyze the necessity,.or unavoidability, of the natural wet-
land loss.
5/ Section 231 .2(e) defines “unacceptable adverse effect” as:
impact on an aquatic or wetland ecosystem which is
likely to result in significant degradation of
municipal water supplies (including surface or
ground water) or significant loss of or damage to
fisheries, shelifishing, or wildlife habitat or
recreation areas. In evaluating the unacceptability
of such impacts, consideration should be given to
the relevant portions of the section 404(b)(1)
guidelines (40 C.F.R. Part 230).
See also preamble to the regulation, 44 Fed. Reg. 58076 (October 9,
1979).
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The Guidelines implement the CWA’s goal of maintaining and
restoring the chemical, physical, and biological integrity of the
nation’s waters. The Guidelines direct the avoidance of wetland
destruction where possible, through the so-called “alternatives
test.” 6/ When applied to wetlands, the alternatives test sets
forth two rebuttable presumptions: 1) that for non-water dependent
activities (such as shopping malls) there exist practicable alter-
natives to the discharge which do not involve wetlands; and 2)
that such alternatives have less adverse impact on the aquatic
ecosystem.
The rebuttable presumption that other practicable alternatives
exist for nonwater dependent projects serves two functions. First
and most importantly, it directs development away from sensitive
aquatic resources. Second, it reserves such sites for projects
which by their nature require access to water. The presumption
correctly and logically recognizes that non-water dependent pro-
jects can usually be located someplace other than wetlands,
whereas the range of options for water-dependent projects is, by
definition, usually more limited.
6/ Section 230.10(a) provides, in pertinent part:
1. Except as provided under section 404(b)(2) [ pertaining
to navigation] rio discharge of dredged or fill material
shall be permitted if there is a practicable alternative
to the proposed discharge which would have less adverse
impact on the aquatic ecosystem, so long as the alterna-
tive does not have other significant adverse environmental
consequences.
2. An alternative is practicable if it is available and
capable of being done, after taking into consideration
cost, existing technology, and logistics in light of
overall project purposes. If it is otherwise a practi-
cable alternative, an area not presently owned by the
applicant which could reasonably be obtained, utilized,
expanded, or managed in order to fulfill the basic
purpose of the proposed activity may be considered.
3. Where the activity associated with a discharge which
is proposed for a special aquatic site [ defined in
Subpart E to include wetlands] does not require access
or proximity to or siting within the special aquatic
site in question to fulfill its basic purpose (i.e., is
not “water dependent”), practicable alternatives that
do not involve special aquatic sites are presumed to be
available, unless clearly demonstrated otherwise. In
addition, where a discharge is proposed for a special
aquatic site, all practicable alternatives are presumed
to have less adverse impact on the aquatic ecosystem,
unless clearly demonstrated otherwise.
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In the present case, one of the most contentious points is
the issue of practicable, less damaging alternatives. Accordingly,
this tirial decision now discusses whether the loss of Sweedens
Swamp is an avoidable loss.
B. Practicable alternatives
To be considered “practicable” an alternative must be both
feasible and available. 7/ But, as indicated, the applicant
must present sufficient evidence to overcome the presumption
that practicable alternatives are available. The record compels
the conclusion that Pyramid has not rebutted that presumption.
Feasibility
Under the Guidelines, an alternative must be capable of
satisfying the basic, or overall, purpose 8/ of the proposed
project (taking into account cost, technology, and logistics).
40 C.F.R. §230.10(a)(2). The applicant’s proposal is obviously
the starting point for identifying the basic project purpose;
the Guidelines’ alternatives analysis does not examine alternate
uses of the project site in question, but rather alternate sites
(or designs) for the basic project purpose. Louisiana Wildlife
Federation v. York , 761 F.2d 1044 (5th Cir. 19R5).
The Guidelines do not demand an acceptance of literally
every aspect of a developer’s characterization of his “project
purpose.” However, in this case, the leading alternative site is
capable of serving a strikingly similar project. Pyramid’s pro-
ject is a shopping mall, and the search for alternatives revolves
around sites suitable for a shopping mall (or alternative designs
at Sweedens Swamp). As discussed below, the marketplace has
found that a nearby site is suitable for a virtually identical
regional shopping mall: a “quality” fashion-oriented enclosed
mall with nearly the same square footage and three anchor depart-
ment stores, serving the same trade area. There is no convincing
basis in the record for finding that such an alternative would
not serve the same “basic purpose” as Pyramid’s project.
7/ 40 C.F..R §230.3(q) provides: “The term ‘practicable’ means
— available and capable being done after taking into considera-
tion costs, existing technology, and logistics in light of overall
project purposes.”
8/ The preamble and the regulations use the ternis “basic project
— purpose” and “overall project purpose” interchangeably.
The preamble clearly supports the position that “basic purpose”
refers to the general function of the proposed activity, not its
specialized details (45 Fed. Reg. 85339 (December 24, 1980)),
and in practice, EPA has consistently so interpreted the
terms.
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— 17 —
Primary attention has focused on a site known as the North
Attleborough site, located immediately south of the interchange
of U.S. Route 1 and 1-295, approximately three miles north of
Sweedens Swamp on Route 1. It is approximately 57 acres in size
and is zoned for commercial use. New England Development, Inc.
(formerly State Properties of New England) currently controls
the site, on which it plans to build a regional shopping mall
comparable in size and character to Pyramid’s proposed Newport
Galleria. In its July, 1984, 404 permit application, Pyramid
stated that it had rejected the North Attleborough site on the
grounds that it was not feasible to Pyramid’s purpose, and thus,
Pyramid stated, it was not a practicable alternative for its
mall.
As a general matter, an applicant’s submission of information
clearly within its expertise is normally accepted by the Agency.
Where the information seems in conflict with other available in-
formation, however, EPA must exercise its independent judgment to
determine the matter at issue. Here, the marketplace evidence
compels EPA to conclude that the North Attleborough site is
feasible, notwithstanding Pyramid’s rejection of it. As noted
above, New England Development, Inc., an established developer
in the region, plans a similar shopping mall at the site. The
company has invested over $2 million at the mall site, has
successfully pursued the necessary zoning, has done extensive
engineering work, had contacted potential tenants, and has
completed a State Environmental Impact Report. The willingness
of an established developer to invest this time and effort into
developing the North Attleborough site is strong evidence that
it is a feasible site. 9/ Furthermore, this already convincing
market place evidence is also supported by the conclusions of an
independent consultant to the Corps of Engineers in January 1985
that the North Attleborough site was a feasible site for a regional
shopping mall.
As detailed in the recommended determination, Pyramid has
raised numerous specific objections to the North Attleborough site
in an effort to justify its own rejection of the North Attleborough
site. While I believe the market place evidence is itself sufficient
evidence of feasiblity in this case, I nonetheless considered
Pyramid’s specific comments.
Py amid contends that the North Attleborough site is “too
far north” of the primary trade area it had delineated. Even
accepting Pyramid’s delineation of the primary trade area, I find
Pyramid’s arguments unconvincing on this point. The site, located
near the geographic center of Pyramid’s trade area, is only three
9/ Of course, feasibility does not guarantee success -- whether
— for an inherently risky shopping center business or for
other commercial endeavors.
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miles north of Sweedens Swamp, and only six minutes (driving time)
further from the densely populated sections of the trade area.
It is still within a 15-20 minute drive froni the farthest (i.e.,
southern) fringe of the trade area, and it is a mere two miles
west of Interstate 95. The consultant retained by the Corps
states in his analysis of feasible sites that the location of the
North Attleborough site is “almost ideal” from a market point of
view. The marketing analysis conducted for New England Development
reaches a similar conclusion. Thus, I find that the record shows
that the North Attleborough site is a viable location for a
shopping mall of this type, in the same trade area.
Further, Pyramid argues that the North Attleborough site is
not visible from 1-95 and therefore will be unable to attract
sufficient shoppers. First, it should be noted that the North
Attleborough site is located at an interstate highway interchange
(1-295 and U.S. Route 1). The Corps’ consultant’s report on
feasibility notes that visibility from both 1-295 and Route 1 is
excellent. The consultant’s report also concludes that visibility
in general is not an “overly important” consideration.
Pyramid asserts that highway access to the North Attleborough
site is poor. However, New England Development’s consultant, Realty
Development Research, Inc., concludes that the site enjoys good
access within the trade area. The Corps consultant also states
that the location provides “excellent” road access via 1-95, Route
1, Route 1A , and 1-295. While the latter roads are currently
less well traveled than 1-95, he concludes that a mall at the
North Attleborough site will create its own traffic by providing
its own draw.
Pyramid also states that the site is too small to support
a shopping mall. The proposed square footage and “footprint” of
each development are roughly equivalent; thus the record provides
no evidence that the North Attleborough site is too small.
In some of its later submissions, Pyramid states that one of
the main reasons it rejected the North Attleborough site was be-
cause of improper zoning (at the time it was evaluating the site).
However, in its October 1984 supplement to its 404 permit applica-
tion, Pyramid states quite clearly that the site was not rejected
because of its improper zoning. Pyramid explained that “ [ m]ost
large regional shopping center sites have zoning, infrastructure
and environmental constraints at least as severe as those affecting
the North Attleborough I site. Had the ... location been acceptable,
this site would have warranted our attention as a practicable
alternative ....“ In fact, the zoning of the site has, through New
England Development’s efforts, been changed to accommodate a regional
shopping mall.
Pyramid also states that past failures at the North Attleborough
site demonstrate its infeasibility. However, the same could be
said for Sweedens Swamp, scene of at least two prior failures.
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Moreover, the record indicates that the market has been improving
and is currently strong and that New England Development has not
reached any major obstacles to date. Accordingly, I do not find
Pyramid’s reference to past failures persuasive on this point. 10/
-While some retailers apparently have a strong preference for
locating at Sweedens Swamp (some planning to locate there have
indicated that that is the only site in the market they would
accept), the record nonetheless indicates that a North Attleborough
mall will still be able to attract tenants, and is indeed competing
vigorously for some of the same anchor stores.
Finally, Pyramid and others urge rejection of the North
Attleborough site due to various practical problems, including
traffic and water quality concerns, the proximity of an elementary
school, and public opposition to the project. As previously
noted, Pyramid itself recognizes that any large development is
likely to pose difficulties that will require time, money, and
proper planning to overcome, and the North Attleborough site is
no exception. Some specific concerns raised by Pyramid and others
are addressed in more detail in Appendix D. Here, I will simply
note that many of the difficulties at the North Attleborough site
also confronted Pyramid at the Sweedens Swamp site, including
water quality, flooding, and traffic concerns, and the proximity
of an elementary school. Public support and opposition exist at
both sites. There is, in short, no evidence that the North
Attleborough site presents unique or insurmountable problems.
Moreover, the fact that other established developers have
elected to pursue quality regional malls in the vicinity at sites
which do not meet Pyramid’s stated criteria strongly suggests that
Pyramid’s criteria are not dispositive. 11/ In Pyramid’s view,
10/ Pyramid has also cited the failure of anchor stores at the
Lincoln Mall on Route 295 as evidence of the unsuitability
of such a location. However, the record indicates that the two
anchors closed, not because of dissatisfaction with the location
but rather because the retail chains of which they were part folded.
The Mall quickly replaced the anchors (one replacement was in and
operating in 4-5 months), and in fact the Mall is planning to
expand to three or four anchors.
11/ New England Development’s enterprise has already been
described. In addition, another developer, Marathon Group of
Companies, Inc., has announced plans to build a comparably scaled
quality merchandise regional shopping mall anchored by three
department stores in Seekonk, Massachusetts. The Seekonk site is
a 79 acre parcel of land located on the southern side of Route 6
in the town on the southern border of the City of Attleboro, and
is bordered to the west by East Providence, Rhode Island. The
site is within a half mile of Interstate 195, and approximately
five miles from 1-95 and seven to eight miles from Sweedens Swamp.
FOOTNOTE CONTINUED ON NEXT PAGE
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the Sweedens Swamp site is by far the preferred site (with its
“excellent” location, access, and visibility), and that may well
be the case from strictly an economic perspective. However,
whether the North Attleborough site is or is not the best site
within the trade area from a specific applicant’s business per-
spective is not the issue. The practicable alternatives test
requires only that other sites be feasible, not that they be
equal or better. 12/
Availability
The other aspect of practicability is “availability,” i.e,
whether an alternative which is otherwise suitable for the basic
project purpose is “available” for that purpose. The Corps and
Pyramid believe that availability should be viewed as “availability
to the applicant.” I agree that “availability to the applicant”
is the correct test to apply to this case. However, I still
conclude based on the record that the North Attlehorough site
must be deemed available to Pyramid.
Pyramid has argued that the North Attleborough site cannot
be considered available to it because a competitor controls it
and presumably will not sell to Pyramid. I agree that there is
no reason to believe that New England Development will sell to
Pyramid. 13/ However, I do not agree that the analysis should
stop there.
FOOTNOTE 11 CONTINUED FROM PREVIOUS PAG .
The site is currently an abandoned drive-in theater and vacant
land. The Seekonk site is located in the southeast portion of
Pyramid’s defined trade area, one of the most densely populated
sections of that trade area according to Pyramid’s 1983 retail
market analysis. The Seekonk site would Likely serve a market
that significantly overlaps, but is not identical to, the market
delineated by Pyramid.
12/ Since an applicant presumably usually selects the site which
is best from his perspective, alternatives are almost by
definition “second best”; to eliminate non-wetland sites on that
basis would be inappropriate.
13/ That is not to say that New England Development could not
have been talked into relinquishing its interest in the site
at an earlier stage. In its October 1984 supplemental application
to the Corps, Pyramid asserted (at 21), “ [ O)ur competitor...has
spent little, if any, money on their attempt to develop this site.
The current landowner, Allan Riley, is the primary financier of
this effort. Mr. Riley is driven by a need and desire to rid
hiniseif of a vacant parcel with which he has been burdened for
over five years.”
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The Clean Water Act and the 404(b)(t) Guidelines were intended
to avoid unnecessary filling of wetlands and to require a prospective
discharger to take a hard look before concluding that upland sites
are not available. I do not believe that the Guidelines can, or
should, be read as limiting the inquiry on availability solely
to the time after an application is filed. It is both fair and
consistent with. the Guidelines to review the period of availability
as including the period when the developer is selecting a site
for its project. 14/
There are several reasons for this. First, in a situation
where two parties contemporaneously enter the same market area
for the same purpose, and one decides to option an upland site
(thereby avoiding wetland destruction), while the other selects a
wetland, such a “present ownership” test would turn the guidelines
on their head and penalize the competitor who heeded the guidelines
and pursued the upland site.
Second, the applicant usually must conduct its alternatives
analysis before filing its application. A present ownership test
would have the perverse effect of holding the applicant harmless
14/ The issue addressed here relates particularly to circumstances
where a developer or developers are entering a market area for
the accomplishment of a specific project. I need not, and do not,
decide here what the relevant time period would be in other cir-
cumstances -- e.g., where an applicant wishes to build on property
inherited or acquired long ago.
Pyramid now argues that the language of the guidelines speaks
exclusively in the present tense with respect to the availability
of alternatives -- e.g., “An alternative is practicable if it is
available ...“ 40 C.F.R. S230.10(a) (emphasis added). It is clear,
Pyramid contends, from the use of the present tense that avail-
ability must be determined as of the time of the application.
That reading of the regulatory language is too cramped. The
use of the present tense was intended to insure a temporal matching
of the requisite alternatives analysis and the availability deter-
mination. Indeed, in discussing practicability in its supplemental
application to the Corps. Pyramid itself argued that the appropriate
time for judging alternatives was when the applicant was reviewing
alternatives and deciding on a course action. (Supp. App. at 20.)
The principle I have set forth in this case does not require
(or permit) an open-ended historical review of whether an alter-
native site was ever available during an applicant’s corporate or
personal existence. Rather I have given the language the common
sense reading that the review of alternatives and their avail-
ability are necessarily linked in time. This presents no conflict
wich either the language of the Guidelines or EPA’s past practice.
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for errors and-omissions it made in its analysis. For example,
if the applicant mistakenly concludes that a feasible alternative
site is not available and that site is subsequently purchased by
a competitor, a present ownership test would insulate the applicant
from its error.
Finally, Pyramid itself has stated that it “conducted a
comprehensive investigation and analysis of the Attleboro primary
trade area well before committing any time, money or personnel
resources to the development of any specific site.” (10/84 Supp.,
p. 4) (emphasis added). Indeed, Pyramid stated that “at the out-
set of our trade area investigation, our business judgment was to:
(1) find another acceptable site [ i.e., a site other than Sweedens
Swamp] and (2) to use our influence with major department stores
to convince them that the [ Sweedens Swamp] site was not the only
acceptable location in the area.” (Id. at 8). Pyramid’s own
statements thus show that its search or alternative sites sub-
stantially pre-dated its acquisition of Sweedens Swamp. It is
certainly fair and reasonable for EPA to review the availability
of alternatives in the same time frame that Pyramid reviewed
them.
The uncontested fact is that Pyramid never checked the
availability of the North Attleborough site during its investiga-
tion of the market, notwithstanding its knowledge that Sweedens
Swamp suffered from significant environmental constraints.
Pyramid rejected the site not because it was unavailable but
because Pyramid believed it was not an economically viable site.
Pyramid stated that it would have turned down the site for its
project even if it were offered “for free.” (10/84 Supp., p. 9).
Neither the CWA nor the Guidelines require an applicant to
probe the availability of a site that the applicant believes is
unsuitable for its project. That is a judgment for the applicant
to make. But in making that judgment, the applicant runs the
risk that the marketplace will call into question the determination
of unsuitability, and the applicant will then be left without proof
that the alternative site was also unavailable. That is the case
here.
The record indicates that New England Development began
acquiring optons over property at the North Attleborough site in
July, 1983, and completed its acquisitions in February, 1984.
Pyramid apparently purchased Sweedens Swamp in December of 1983,
but, as indicated above, began its investigation of alternatives
“ weli before ” that time. 15/ In an attempt to pin down the timing,
15/ While Pyramid elsewhere states that it “commenced” its
investigation in “approximately” September 1983 preparatory to
making an aquisition decision, the record suggests that it would he
customary in the industry to follow the market area longer than that
before paying $2 million for a site with admittedly severe environ-
mental constraints. Indeed, in October 1984, Pyramid emphasized
that it had comprehensively evaluated the area “ over one year ago.”
(10/84 Supp., p. 2 1) (emphasis added).
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EPA aske , Pyramid for detailed information concerning Pyramid’s
contacts with realtors, department stores, DeBartolo, and various
property owners. Pyramid responded that such information “simply
does not exist.” (December 17, 1985 letter). It would be, at
best, conjecture for me to attempt to recreate what would have
happened had Pyramid explored the availability of the North
Attleborough site when it first entered the market. 16/ All
that the record clearly shows is that Pyramid and New England
Development were exploring the same trade area at approximately
the same time and that Pyramid decided against the North
Attleborough site solely on the basis of unsuitability. On this
record, I cannot find that Pyramid has met its burden of showing
that the North Attleborough site was unavailable. To make such
a finding would be particularly inappropriate in this case since
Pyramid bought Sweedens Swamp with full awareness of the environ-
mental concerns posed by destroying the swamp and with a full
appreciation of the importance of finding an alternative site.
The special circumstances of this case, argue for an additional,
though subsidiary, basis for considering the North Attleborough
site as one available to Pyramid. Pyramid chose to be considered
as Attleboro Mall, Inc., for the purpose of avoiding the State’s
new stringent environmental regulation. Logic indicates that
Pyramid is likewise bound by alternatives available to Attleboro
Mall, Inc., and the record shows the North Attleborough site was
available to Attleboro, Mall, Inc., Pyramid’s acquired affiliate.
On March 13, 1985 the state Department of Environmental Quality
Engineering (DEQE) granted a State permit to Attleboro Mall, Inc.,
an acquired affiliate of Pyramid, for the filling of Sweedens
Swamp. This decision followed a lengthy adjudicatory hearing, in
which one of the issues was whether Attleboro Mall, Inc.’s proposed
mall could be treated as a continuation and improvement of the
earlier mall proposals made by Mugar and DeBartolo, 17/ or whether
16/ As noted above, Pyramid has said Mr. Riley had been trying
to “rid himself” of the parcel for years.
17/ The original notice of intent was filed by the Mugar Group,
Inc./Federated Stores Realty, Inc. in March, 1979. The local
Corservation Commission’s approval of the project was appealed
to DEQE. During the appeal process, Mugar conveyed ownership of
the Sweedens Swamp site to Attleboro Mall, Inc., then an affiliate
of the Edward J. DeBartolo Corporation. In April, 1982 DEQE issued
a Superceding Order to Attleboro Mall, Inc., denying the project.
Subsequent to the denial, apparently in December 1983, Pyramid
obtained control of Att].eboro Mall, Inc. and pursued a challenge
of the DEQE denial through an adjudicatory hearing.
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- 24 -
the revised and now Pyramid-controlled project had to start the
state process anew. The DEQE agreed with Pyramid and ruled that
a successor in interest could substitute itself for the prior
owner and continue in the proceedings without filing a new notice
of intent.
Pyramid’s claim that it should assume the rights of the
original applicant for the state permit meant that Pyramid’s
proposal was evaluated by the state under regulations that had
been in force at the time of the original permit application,
rather than under the more stringent regulations which took
effect in 1983. The applicability of the old regulations was
critical to Pyramid since the new regulations prohibit the
filling of more than 5000 square feet of bordering vegetated
wetlands. 18/ 310 C.M.R. 10.55. This fact was acknowledged by
the State in its final decision.
Since Pyramid acquired the rights of its predecessor, logic
would have it be bound by the obligations of its predecessor - -
including the obligation to choose an upland alternative. I
believe that alternatives available to Attleboro Mall, Inc.
while it was under the control of either DeBartolo or Pyramid
should be considered. 19/
The North Attleborough site is one such site. It was clearly
available for purchase prior to New England Development’s acquisi-
tion of control over it. In fact, the record indicates that the
DeBartolo Corporation expressed an interest in the site to a
local realtor who was offering it, and even exchanged some papers,
but did not pursue an acquisition. These circumstances reinforce
the conclusion that Pyramid has not met its burden of proving that
the North Attleborough site was not available to it.
C. Less environmentally damaging alternatives and mitigation
The alternatives requirement also takes in account comparative
environmental impacts. The alternatives test provides that “no
discharge of dredged or fill material may be permitted if there
is a practicable alternative to the discharge which would have
less adverse effect on the aquatic ecosystem , so long as the
alternative does not have other significant adverse environmental
consequences.” 40 CFR §230.10(a) (emphasis added). However,
alternatives “which do not involve i discharge into a [ wetland]
18/ Pyramid proposes to fill approximately 1,400,000 square feet
of bordering vegetated wetlands.
19/ The Newport Calleria Group, another Pyramid affiliate, applied
for the federal permit. On February 10, 1985, Attleboro Mall,
Inc. conveyed the Sweedens Swamp site to the Newport Galleria Group
for $10.00.
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- 25 —
are presumed to have less adverse impact on the aquatic ecosystem
unless clearly demonstrated otherwise.” §230.10(a)(3) (emphasis
added). 20/
Turning to this case, the record demonstrates beyond doubt
that locating a shopping mall at the North Attleborough site
would have less adverse impact on the aquatic ecosystem. 21/ For
example, the North Attleborough site has less than one acre total
wetlands, scattered in small pieces, compared to the 32 acres to
be filled at Sweedens Swamp. (Although New England Development
plans some retention basins on an adjacent parcel which has some
larger wetlands, the basins will not encroach on those wetlands.)
Furthermore, construction of a mall there need not have more impacts
of concern downstream than at Sweedens Swamp.
Under the Guidelines, the alternatives inquiry does not end
here. I must also consider whether there are other significant
adverse environmental impacts. As a general matter, both sites
will accommodate the same basic project; and there is nothing in
the record to suggest that air, noise, trash, etc., impacts of a
mall will not be largely comparable at Sweedens Swamp and the
North Attleborough alternative site. The regulations contemplate
that only unusually significant upland impacts would override
wetland impacts. No such significant impacts are present in this
case. In fact, the Corps concluded that, mitigation aside, the
North Attleborough site “has much less value for wildlife” than
does Sweedens Swamp.
I recognize that both the wetland and upland at issue here
offer “wildlife” habitat. However, wetlands are scarcer than up-
lands and historically have been lost at a much higher rate. In
20/ As noted by both the Corps of Engineers and the recommended
determination, a threshold issue is whether offers of mitigation
(i.e., compensatory wetland creation) should be considered in
comparing the impacts of the project at the proposed site and at
alternate sites. General Wall’s “Views of the Chief of Engineers”
recognized that allowing compensatory mitigation to be factored
into the alternatives analysis “is somewhat problematic, because
if not implemented carefully, it cou]..d serve to weaken or subvert
key provisions of the current 404(b)(1) Guidelines” and be cour:er
to the Guidelines’ obvious intent (although he concluded that
exceptions could be made in “proper cases”). For the reasons
discussed below, I conclude that mitigation should not be included
in my alternatives analysis in this case. Accordingly, the
following environmental analysis of the alternate sites identified
above properly focuses on the impacts of the project without the
“add—on” mitigation.
21/ In fact, this is so even if one were to consider Pyramid’s
onsite mitigation offer as part of the project itself.
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— 26 -
addition, wetlands serve a variety of ecological functions of which
wildlife habitat is only one. For example, these functions include
significant water purification functions, flood and storm water
storage, groundwater recharge or discharge areas, and food chain
production, spawning and rearing sites as well as genera]. habitat.
Hence, as a generality, acre per acre, loss of wetlands is con-
sidered more significant than development of uplands. Furthermore,
in this case, Sweedens Swamp serves as a more effective sheltering
urban island habitat. Also, the larger habitat complex, of which
the North Attleborough site is part of, unlike Sweedens Swamp,
will continue to provide wildlife support functions even if a mall
is built.
Finally, I have considered the question of whether Pyramid’s
proposed offsite creation of a new wetland should be viewed as
establishing the Pyramid project as “environmentally preferable” to
any other alternative.
This case involves an extensive wetland fill, and an evolving
offer to create a large scale wetland complex out of a mostly up-
land gravel pit. The record raises concerns about the short-term
and long-term viability of the mitigation, as well as its enforce-
ability. Under the circumstances, given the large size of the
proposed mitigation, the state of the science of artificial wetland
creation, the purpose of the alternatives analysis, and the avoid—
ability of the loss of this particular wetland of proven value, I
do not believe that the proposed mitigation plan is of such clear
environmental benefit that it can justify the unnecessary destruc-
tion of an existing wetland.
The offsite mitigation proposed here involves creation of a
36 acre wetland from 30 acres of upland gravel pit and 6 acres of
open water at Tiffany Street, over a mile from Sweedens Swamp. The
plan calls for the excavation to create weepage faces of ground-
water to induce surface water flow, and the mixing of peat with
the top foot of substrate to •create a “wet mix” to provide condi-
tions to enhance the growth of wetland vegetation (mostly emergent
herbaceous vegetation and some shrubs, rather than trees). The
onsite mitigation proposal involves the excavation of 9 acres of
upland and the conversion of 13 acres of wooded swamp, to create
22 acres of open water habitat and marsh. Pyramid has said it
would not challenge EPA if EPA required that the Tiffany Street
site be completed prior to constructi’ n of the Mall. Pyramid has
also stated at various times that it believes that establishment
of the Tiffany Street site would take only a few months or 1-3
growing seasons, 22/ although scientific uncertainties associated
with such a largei an-made wetland, created from predominantly
upland, suggest that that is optimistic. The onsite mitigation
would necessarily require the concurrent alteration of Sweedens
Swamp.
22/ See e.g., affidavit of John A. Bersani, dated August 23,
1985, at paragraph 29.
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Without in any way questioning Pyramid’s good faith, I
nonetheless believe that this proposal presents substantial risks
and uncertainties. While considerable work has been done in wet-
land restoration and enhancement, the science of wetland creation
is much less advanced. This is not surprising considering that
when wetlands are artifically created, a successful combination
of engineering and environmental management techniques is required
i order to attempt what it may take natural systems centuries to
do.
For example, analysis of the literature indicates that simply
creating the requisite “structure” does not guarantee that a wetland
ecosystem will function as intended. 23/ Indeed, the preface (at
pp. 4, 11) to the Massachusetts wetla ff regulation premises its
blanket prohibition against filling more than 5,000 s 9 uare feet of
bordering vegetated inland wetlands on the fact that ‘ [ t]he complex
natural functions of these wetlands cannot be replicated, and no
amount of engineering will enable such areas to be filled or sub-
stantially altered without seriously impairing the statutory
interests they serve,” particularly water quality and habitat.
For these reasons, Pyramid’s offer of a 5-year performance bond
is of limited utility to ensure success of mitigation.
Noreover, particularly until it is well established, a created
wetland is especially vulnerable to a number of forces. These in-
clude fluctuations in its energy signature (i.e., fluctuations in
hydroperiod, hydrologic energy, and nutrient availability), factors
that shape the wetland development process (i.e., temperature, fire
frequency, salinity, and herbivores), and colonization by pioneering
species, many of which are noxious weeds that are not indigenous
species (i.e., purple loose-strife and other “nuisance” plants are
prone to invade and dominate disturbed wetland areas). Even if
the above vulnerabilities are overcome, it can take seasons until
an inland marsh is established, and decades for a shrub or wooded
swamp. Consequently, it takes a considerable period of time to be
sure that a wetland has become successfully established and even
then there is some uncertainty as to how well it will function,
both objectively and relative to the wetland it is designed to
replace. These uncertainties, and the consequent need for long-term
monitoring, increase with the size of the project. 24/
23/ LaRoe, E.T. 1979. The biological basis for estuarine
ecoystem mitigation, pp. 90-92. In G.A. Swanson (Technical
Coordinator) 1979. The Mitigation Symposium: A National Workshop
on MitigatLng Losses of Fish and Wildlife Habitats. General
Technical Report Station, USDA Forest Service, Fort Collins, Co.;
Gonor, J.J. 1979. Id. at 92-93: Race M.S. and Christie, D.R.
1982. Coastal Zone development: 1itigation, Marsh creation and
decision-making. Environmental Management 6:317-328.
24/ Wetlands: Their Use and Regulation , Washington, D.C., U.S.
Congress, Office of Technology Assessment, OTA-0-206,
March 1984.
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Pyramid’s proposal involves frontiers of science. It appears
to be one of the largest wetland creation projects of its type
to date. (While larger scale projects have been cited, such as
the Ducks Unlimited effort in Canada, they involve essentially
.wetland enhancement, not creation.) The site presents complicated
questions of hydrology. No satisfactory source of peat for the
wet mix has even been identified to date. At the Corps’ request,
Pyramid has submitted extensive historical records on precipitation,
groundwater and surface water fluctuations as well as information
on the hydrological performance of the wet mix, which the Corps
is still evaluating in an effort to address the uncertainties of
Pyramid’s offsite mitigation’s success.
Those uncertainties take on a particular importance in light
of the fact that the mitigation is proposed to replace an existing,
stable, functioning wetland whose loss is unnecessary. I must
consider the role of mitigation in light of the purpose of the
alternatives analysis to avoid loss of wetlands where possible.
As the preamble to the Guidelines notes, that purpose “was to
recognize the special values of wetlands and to avoid their
unnecessary destruction, particularly when practical alternatives
were available in non-aquatic areas to achieve the basic purposes
of the proposal.” 45 Fed. Reg. 85339 (December 24, 1980). I
cannot find that the policies of the Guidelines, or indeed the
Act, would be well served by assuming the risks of Pyramid’s
proposed wetland creation where there is a feasible, available,
upland alternative. The availability of the mitigation option
in such a case would undercut the incentive to seriously and
carefully examine non-wetland alternatives.
The Corps also expressed concern about the precedential
significance of allowing a mitigation proposal to obviate the
alternatives test, but believed that the approach it took in this
case could be confined to a limited and proper set of circum-
stances. I am not so confident. This is not a minor project;
it is not a scientifically certain project. To accept it under
these conditions would, in my view, encourage developers to seek
novel mitigation measures, not alternatives, and would undermine
the predictability of the permit process. We would find ourselves
drawn, as in this case, into assessments of mitigation approaches
for which we will be able to make, at best, only qualitative judg-
ments based on uncertain knowledge. As the technology develops,
there might well be a case in which even offsite, out of kind
wetland creation would be so beneficial and so reliable as to
justify an exception. This plainly is not the case here.
Furthermore, Pyramid’s proposal, even if successful, would
not provide the same kind of habitat as that which would be lost
at Sweedens Swamp. Sweedens Swamp is a wooded swamp which provides
vertical heterogenity, and heavy cover, and supports a particular
mix of bird, mammal, and amphibian species. The Tiffany Street
site, if successful, would provide largely marsh and open water,
with some shrub swamp, and would be designed to support a somewhat
different mix of species. It is also physically separate from
Sweedens Swamp, with no ground corridor between the two.
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These differences further reinforce my conclusion that it
would be inappropriate in this case to let an offer of manmade
wetlands override the Guidelines’ policy of avoiding losses where
practicable. The aquatic ecosystem is one in which each piece
plays a role in the whole. Wetlands are not fungible (that is,
ecologically interchangeable). Thus, when one creates a mitigation
wetland, one is not necessarily restoring what was lost, one is
simply attempting to compensate. Even where two wetlands both
serve the same generic “wildlife habitat” function, there may
still be differences which prevent their being wholly interchange-
able. The extent of discrepancy between what one loses and what
one creates is not fixed; it obviously increases as one substitutes
one kind of wetland (e.g., marsh) for another kind of wetland
(e.g. swamp) or for open water; as the distance between the former
and new wetlands increases; or as other variables are introduced.
In short, even if one assumes created wetlands will be successfully
established, there are fundamental questions about what wetland
compensation can promise as true replacement. 25/
I do not mean to downplay the value of mitigation in the
appropriate context. Where a wetland loss is unavoidable and
the discharge does not cause or contribute to “insignificant
degradation,” EPA encourages consideration of mitigation.
Furthermore, manmade wetlands may play a valuable role in waste
water management. Indeed, EPA is devoting resources to research
in both those areas. However, the case before me does not involve
either of those situations.
25/ In a recent stt dy of wetland use and regulation undertaken
— by the Office of Technology Assessment at the request of
Congress, the authors warned of the need for judicious review by
federal agencies of wetland construction proposals:
The ability to construct new wetlands should not
be used as sole justification for the unregulated
conversion of wetlands to other uses : manmade
wetlands do not necessarily provide the same values
as natural ones. (emphasis in original)
Office of Technology Assessment report, supra at 117, 130-31
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VI. FINAL DETERMINATION
The mission of the Environmental Protection Agency is to
protect human health and the environment. In interpreting our
administrative responsibilities as mandated by law, regulation
and administrative directive, we must conduct our activities
with fulfilling that mission constantly in mind.
The Clean Water Act, section 404, directs a special emphasis
to otr nation’s waters, including special aquatic sites such as
wetlands. Regulations written pursuant to Section 404(b)(l) in-
corporate a crucial environmental standard that forbids avoidable
destruction of wetlands. The question of avoidability is answered
through the practicable alternatives test, more commonly known
as the “water dependency” test. The section 404(b)(l) Guidelines
direct that when a project which is not water-dependent (for
example, a shopping mall, which need not be constructed on or
near waters of the United States) is proposed for a permit to
fill waters of the United States, there must be a rebuttal of
the regulatory presumption that there are no upland alternatives
available to meet its objective.
Section 404(c) of the Clean Water Act provides the Environmental
Protection Agency the authority and responsibility to review and to
condition or prohibit discharges into waters of the United States
when certain unacceptable environmental effects would result from
the project’s construction.
Mindful of the mission of this Agency, the intent of the
Clean Water Act, historical loss of approximately half of United
States’ wetlands, and the continued cumulative national loss of
approximately 300,000 wetland acres annually, which affects wild-
life, flood protection and water quality, fish, shellfish, and
water supply, I began a careful review of the case before me.
Sweedens Swamp is a typical well-established, functioning,
red maple swamp which provides excellent wildlife habitat for a
variety of birds, mammals, and amphibians, and provides flood
storage capacity, groundwater discharge and water purification.
Pyramid’s proposed shopping mall will result in the destruction of
approximately 45 out of 49 acres of this wetland habitat. Thirty
two acres would be premanertly destroyed, and although Pyramid has
offered to recreate other wtclands on the site, doing so would
result in the at least temporary destruction of 13 of the remaining
17 acres of wetland habitat. These losses are not necessary in
order to have a quality fashion-oriented regional shopping mall.
There is at least one practicable alternative site in the same
market which was rejected by Pyramid on grounds of infeasibility,
not availability to Pyramid, when it was investigating the trade
area prior to selecting Sweedens Swamp. In short, filling Sweedens
Swamp would result in significant avoidable loss of wildlife habitat.
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I must now determine whether this loss is “unacceptable”
within the meaning of section 404(c). The context in which the
particular loss would occur is important to this inquiry. The
filling of Sweedens Swamp would be the largest authorized wetland
loss in Massacusetts in at least 5 years. Historically, there has
been a significant cumulative loss of wetlands in Massachusetts;
upwards of 50 of the wetlands in the State have been lost to date.
This loss is of great concern to the State. The Massachusetts wet-
lands regulations were recently revised to put more stringent
limitations on wetlands destruction. Activities causing the
loss of more than 5,000 square feet of bordering inland wetlands
(the type of Sweedens Swamp) are effectively prohibited under
the new regulations. Moreover, the Massachusetts Association of
Conservation Commissions and a large number of its members have
expressed grave concern over the cumulative impact of similar
losses. (Conservation Commissions are appointed bodies responsible
for applying Massachusetts’ wetland regulations at the local
level.) EPA may take cognizance of these facts as reflecting
the importance of the remaining wetlands in the State.
Based on the excellent wildlife value of the wetland in
question, its size and setting, the avoidability of the loss,
and the significance of such areas in Massachusetts, I conclude
that filling Sweedens Swamp to build the proposed mall would
have unacceptable adverse effects within the meaning of section
404(c).
Pyramid offered to create a 36 acre artifical marsh wetland as
compensation for the destruction of the red-maple swamp known as
Sweedens Swamp. I do not interpret the Section 404(b) :1) guidelines
as allowing mitigation as a remedy for destroying wetlands when a
practicable alternative exists. Nor does the state of the science
of man-made wetland creations comfortably allow me to recommend
at this time that man-made creations of wetlands should obviate the
need for an alternatives test, particularly for non-water-dependent
projects.
The Environmental Protection Agency has, because of its
expertise and responsibility, a strong concern over the scientific
uncertainties of artifically-created wetlands, and thus such
artifical wetlands’ use must be conservatively applied. I am,
therefore, anxious that we do not set a precedent across this
nation of substituting artificial wetlands for natural, functic-iing
wetlands without consideration of the need for destroying those
natural wetlands; we simply do not have the scientific ability to
certify what techniques will assure the success of such man-made
creations. If we established the precedent to allow these substitu-
tions without regard to need, the Army and EPA would be called
upon continuously to judge wetland creations as replacements for
natural wetlands -- and the state of the science is such that we
cannot make such judgments with acceptable risk to precious and
dwindling natural resources.
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The Environmental Protection Agency does encourage mitigation
efforts for unavoidable losses of wetlands where the project did
not cause or contribute to significant degradation of waters of
the United States, and supports continued research in wetland
creation. However, as I examined Pyramid’s mitigation plan, and
the conditions which would be needed to ensure that the created
wetlands would be successful, I became even more convinced of the
risks involved for a project which is not water-dependent, and
which would unnecessarily destroy natural wetlands of proven
environmental value.
After considering the full record, I determine that the
construction of a shopping mall in Sweedens Swamp would cause
unacceptable adverse effects on wildlife and wildlife habitat,
and under the authority delegated to me by the Administrator of
the Environmental Protection Agency, therefore hereby prohibit
the use of the site for the proposed fill.
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