The opinion of the court was delivered by: Larimer, Chief Judge.
This action involves alleged violations of, inter alia, the
Clean Water Act (CWA), 33 U.S.C. § 1251, et seq., by the United
States Army Corps of Engineers ("the Corps"), which authorized
the issuance of a permit for the filling of a wetland site, and
by a private developer for its modifications to the site. In
essence, this case was commenced because some members of the
community near the project site disagree with the opinion and
judgment of the various federal, state, and local governmental
agencies concerning this project. At this late stage in the
project's development, plaintiffs seek to do here in federal
court what they have failed to do over the past six years in
other fora, that is, to stop the project or change it to their
liking.
The vehicles that plaintiffs seek to use here are the
Administrative Procedure Act ("APA"), 5 U.S.C. § 551, et seq.,
and § 701, et seq., and the CWA. They claim that because the
CWA was not followed, the project should be stopped. However,
because plaintiffs have inordinately delayed in pressing their
claims, plaintiffs' claims must fail. For the reasons discussed
below, defendants' motions for summary judgment are granted.
Plaintiffs commenced this action in March 1998 against
defendants Linden Associates and Linden Associates LLC
(collectively "Linden"), the Secretary of the United States Army,
the United States of America, and the United States Army Corps of
Engineers ("the Corps") (collectively, the federal defendants).
The twenty acre site at issue is being developed by Linden for
a mixture of light industrial and office uses on a parcel located
north of Linden Avenue and south of Old Penfield Road on the
boundary between the towns of Brighton and Penfield in New York.
The parcel has come to be known colloquially as "Linden Tech
Park," and is the site of an abandoned sewage treatment plant.
Currently, the project consists of improving the third of four
subdivided lots with a two-story, 54,000 square-foot light
industrial building with 169 parking spaces, attendant
landscaping, lighting, and walkways. To mitigate environmental
impacts identified during the State Environmental Quality Review
Act ("SEQRA") process, the development also entails providing a
conservation easement ranging in width from 150 to 200 feet along
Allens Creek, which borders the site to the north.
Because the development of Linden Tech Park would entail
disturbing what Linden calls "approximately 1.65 acres of the
3.08 acres of low-quality urban wetlands" that comprise the site,
Linden applied to the Corps to be covered under the Nationwide
Permit. Linden further asserts that the development replaces
approximately one acre of the so-called low-quality wetlands with
a newly created stormwater management wetland system consisting
of a series of marshes and micropools designed to filter surface
water contaminants. Linden plans to reduce thermal impacts by
using a bottom draw system from a deep micropool prior to
discharge into an existing wetland. The remaining approximately
0.65 acres of wetlands to be filled are claimed to be mitigated
by Linden's donation of $44,000 toward a wetland development
project at Hamlin Beach State Park, which is located many miles
to the north on Lake Ontario. On or about May 31, 1994,
Consultant D.J. Parrone & Associates commenced "predischarge
notification" for the project on behalf of Linden, suggesting
that the work Linden sought to conduct in wetlands on the site
qualified for treatment pursuant to the Nationwide Permit.
Administrative Record ("AR") Item 7.
Several of the plaintiffs reside in the immediate vicinity of
the proposed development, and plaintiffs Parker and Baric reside
on a parcel overlooking the Linden Tech Park site. Plaintiffs are
opposed to development of Linden Tech Park, and have repeatedly
made their opposition known in various fora. The Corps first
learned of plaintiffs' opposition in March 1994. See AR Item 1
(memorandum from plaintiff Kevin Parker to Corps, dated March 21,
1994). The Corps received additional submissions from plaintiffs
prior to Linden's May 31, 1994 request for approval of its plans
under the Nationwide Permit. AR Items 3-5.
Many of the plaintiffs organized and raised objections to the
Penfield Planning Board's ("Planning Board") project approvals.
As a result, the Planning Board rescinded its original
subdivision and site plan approvals and requested further
information and a renewal of the SEQRA process. It appears that
over four and one half years of environmental reviews and
litigation followed with full involvement by plaintiffs.*fn1
Indeed, numerous challenges were raised, and, for the most
part, these challenges were unavailing to stop the project. In
particular, on May 24, 1994, certain of the named plaintiffs in
the instant action commenced an Article 78 proceeding and
declaratory judgment action in state court
to annul the Town of Penfield Planning Board's SEQRA
determination, the final subdivision and site plan approvals, and
the environmental protection permits. They also challenged the
1989 rezoning for the subdivision. By decision dated February 17,
1995 and judgment entered on March 22, 1995, New York State
Supreme Court Justice Evelyn Frazee annulled the Planning Board's
approvals and required it to reconsider its SEQRA determination,
but upheld the 1989 and 1993 rezonings. That portion of the
decision which upheld the rezonings was affirmed by the Fourth
Department on February 2, 1996. The New York Court of Appeals
refused to hear an appeal.
A second Article 78 proceeding was commenced to annul
subdivision and site plan approvals and environmental protection
overlay district permits based upon alleged errors in SEQRA
review and development approvals. By order and judgment, entered
April 18, 1997, New York State Supreme Court Justice William
Polito granted defendants' motion to dismiss because the action
had not been brought within the required time period. Over one
year later, plaintiffs perfected their appeal to the Fourth
Department, which reversed and remanded the matter. On November
2, 1998, Justice Polito again dismissed plaintiffs' Article 78
petition, and, thereby, upheld the Planning Board's SEQRA
determinations, preliminary and final subdivision and site plan
approval, and permits issued by the Town of Penfield.
A third Article 78 proceeding was filed on January 26, 1998,
that time to annul the County of Monroe Industrial Development
Agency's ("COMIDA") SEQRA Findings Statement and issuance of a
financial assistance package. By Decision and Order, entered
March 16, 1998, New York State Supreme Court Justice Kenneth
Fisher dismissed the petition, and found that COMIDA had
adequately performed its SEQRA review, and that all of COMIDA's
hearings and meetings were properly conducted. The instant action
was not commenced until well after the commencement of these
largely unsuccessful state court proceedings.
The plaintiffs have steadfastly maintained their opposition
throughout the Corps' processing of Linden's application,
presenting arguments that the work should not be allowed, or that
it should not be authorized pursuant to a Nationwide Permit on a
number of occasions. See AR Items 1, 3-4, 20, 23, 26, 31, 35
and 44. The Corps and the plaintiffs communicated regularly
concerning the state of Linden's application, both by way of
Corps responses to Freedom of Information Act Requests (AR Items
13, 18) and by way of less formal communication. AR Items 19, 26.
On July 23, 1997, the Corps confirmed that the Nationwide
Permit applied to Linden's proposal to fill portions of the
parcel in question, and imposed certain conditions upon use of
the same permit. AR Item 39. The Corps copied the July 23
correspondence to named plaintiff Jean Baric.
The authorization provided in the Corps' July 23 correspondence
allowed Linden to commence construction at any time between
approximately August 7, 1997 and December 13, 1998, provided that
it furnish two weeks' pre-construction notification. The Corps
approved modifications to Linden's plans in September, 1997. AR
Items 40-41. No ...