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Decisions of the Army Corps are entitled to significant deference regarding the issuance of a CWA 404 permit

Plaintiffs are owners of property in and around the town of Tamworth, New Hampshire. They brought an action seeking a judicial declaration that the Corps of Engineers violated CWA Section 404 when it granted Motorsports Holdings a permit to place fill material within wetland areas on its land in Tamworth. Motorsports Holdings sought the permit to disturb approximately 0.73 acres of wetlands as part of its plan to construct a motorsports country club with an associated 3.1-mile road course on a 251-acre site in Tamworth. Both Motorsports and Plaintiffs submitted reports by their respective experts to the Corps regarding the noise levels. Since the reports reached very different conclusions, the Corps appointed its own expert, who toured the site and reviewed the two reports and their underlying data. The Corps ultimately went with the noise limits recommended by Motorsports'' expert. In Barclay et al v. Army Corps of Engineers et al, 2008 U.S. Dist. LEXIS 11291 (D.N.H. 2008), the local residents challenged the Corps'' Environmental Assessment insofar as the noise levels were concerned. The plaintiffs'' challenge was not related to any potential adverse effects the proposed facility might have on water quality in the area; instead, plaintiffs complained that the Corps approved a noise limit for the project that was excessive and at odds with the recommendations of the Corps'' own consultant. Plaintiffs claimed that the selection of noise levels proposed by Motorsports, and at odds with the Corps'' own expert, was an abuse of discretion and arbitrary and capricious. The District Court noted that when a party challenges the issuance of a permit, the Court is highly deferential to the Corps'' decision. The Court thus found that the selection of the noise standards of Motorsports was reasonable within the discretion to be afforded the Corps, and that the reasoning of the Corps was well explained. Judgment was therefore entered for the Corps. The case once again demonstrates the great difficulty any plaintiff will have in challenging decisions of the Corps on whether or not to issue a permit. As long as the Corps considers all the evidence and weighs it appropriately, and as long as the Corps explains its reasoning, a Court is quite unlikely to overturn the decision made.

  • The Corps concluded that Motorsports'' proposed noise limits (a maximum of 99 dBA at 50 feet from the source, resulting in an average limit of 92 dBA at 50 feet) were acceptable. The comparable facility supported by plaintiffs - Lime Rock - was subject to a 89 dBA limitation for only a portion of its operating season. Other similar facilities all operated subject to sound restrictions at, or above, 95 dBA. With so many facilities operating at a higher lever, the Corps easily rejected any operating plan with sound emissions near 89 dBA, especially for the entire operating season. The Corps got this one right, though it doesn''t change the main point of the post - arguing against the Corps is very difficult. As stated by the court in this case: "The arbitrary and capricious standard is, then, a highly deferential one, and the Corps'' decision is entitled to a presumption of regularity."