UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

B&B PARTNERSHIP; B&B
PISCATAWAY, INCORPORATED; BEVARD
FAMILY LIMITED PARTNERSHIP,
Plaintiffs-Appellants,
                                                                      No. 96-2025
v.

UNITED STATES OF AMERICA,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CA-93-2866-PJM)

Argued: July 15, 1997

Decided: December 24, 1997

Before MURNAGHAN, Circuit Judge, and BUTZNER and
PHILLIPS, Senior Circuit Judges.

_________________________________________________________________

Affirmed by unpublished opinion. Senior Judge Butzner wrote the
opinion, in which Judge Murnaghan and Senior Judge Phillips joined.

_________________________________________________________________

COUNSEL

ARGUED: Robert David Sokolove, SOKOLOVE & ASSOCIATES,
Bethesda, Maryland, for Appellants. Daniel Richard Dertke, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee. ON BRIEF: Susan M. Kayser, SOKOLOVE & ASSO-
CIATES, Bethesda, Maryland, for Appellants. Lois J. Schiffer, Assis-
tant Attorney General, Environment and Natural Resources Division,
M. Alice Thurston, Andrew C. Mergen, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

BUTZNER, Senior Circuit Judge:

The appellants, B&B Partnership, B&B Piscataway, Inc., and
Bevard Family Limited Partnership (collectively referred to as B&B),
challenge the Army Corps of Engineers' denial of a section 404 dis-
charge permit. 33 U.S.C. § 1344. The permit would have authorized
B&B to fill 1.5 acres of wetland in Prince George's County, Mary-
land, as part of a proposed rubblefill project. Both parties moved for
summary judgment. The district court upheld the Corps' decision.

B&B stated the issues on appeal as follows:

          I. Whether the District Court Erred in Excluding Docu-
          ments from the Judicial Review of the Corps of Engi-
          neers' decision, specifically the Chesapeake Terrace
          and Brandywine Rubblefill Documents, Whose § 404
          Permit Applications Were Distinguished and/or Relied
          Upon as Bases for Denying Appellants' § 404 Permit.

          II. Whether the Army Corps of Engineers' Denial of
          Appellants' Permit Was Arbitrary and Capricious, an
          Abuse of Discretion, or Otherwise Not in Accordance
          With the Law.

I

B&B applied to the Corps for a permit in connection with its plan
to locate a rubble landfill at a 69 acre site in Prince George's County,

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Maryland. A rubble landfill or rubblefill is a disposal site for nonpol-
luting construction debris, such as concrete, asphalt, glass, steel, and
vegetation. B&B selected the site, in part, because of its favorable
topography. The site includes a natural ravine in which B&B planned
to deposit the debris. It was estimated that the ravine, which covers
approximately 49 acres, would hold about 2,000,000 cubic yards of
fill.

B&B began the state and local planning processes for the rubblefill
in 1985. As originally conceived, the project did not impact wetlands.
B&B's uncontroverted expert reports indicate that no wetlands
existed in the ravine in 1985. Although a portion of Tinkers Creek tra-
verses the western edge of the site, the plan as originally designed did
not disturb that area.

During the planning process, B&B was asked to minimize the traf-
fic impact on the neighboring community by accessing its site from
the west, across Tinkers Creek. B&B agreed and applied to the Corps
for a permit to fill 0.4 acres of wetland for the purpose of building a
temporary access road across the creek.

Sometime during 1988 or 1989, a wetland emerged along the base
of the ravine. An intermittent stream began to flow saturating the soils
and bringing forth wetland vegetation. The stream and the wetlands
drain into Tinkers Creek, which joins the Piscataway Creek, a major
tributary to the Potomac River. The Potomac flows into the Chesa-
peake Bay. By 1990, the ravine contained 1.1 acres of wetland, and
wetland vegetation accounted for 10% of the ravine's plant life.
Because of this development, B&B submitted a revised permit appli-
cation, requesting authorization to fill the ravine wetlands. With its
application, B&B included an alternatives analysis that claimed no
practicable alternatives existed. B&B attempted to show that the rub-
blefill was in the public interest.

The Corps gave public notice of B&B's proposal and solicited
comments. The Corps received comments from the Fish and Wildlife
Service (FWS), the National Marine Fishery Service (NMFS), the
Environmental Protection Agency (EPA), and private citizens. The
comments received from the FWS, the NMFS, and the EPA recom-
mended denial of the permit. The Corps received 43 letters from pri-

                    3
vate citizens that opposed the project. The letters generally described
how the project would hinder the efficient functioning of the wet-
lands. One citizen feared that the site would "fall prey to the same
piecemeal [ecological] destruction that . . . claimed nearly three-
fourths of the county's swamps and marshes." Another was disturbed
by the damage that the project would do to the bald eagle nesting site
on the property. In summary, the letters showed that citizens were
troubled by noise, traffic, and water pollution that the project would
bring to the area. After reviewing the comments and evaluating
B&B's application, the Corps forwarded copies of the comments to
B&B and indicated that it was inclined to deny the permit.

B&B then modified the plan in an attempt to address certain con-
cerns expressed by the Corps and the other federal agencies. It also
submitted a more comprehensive alternatives analysis. After review-
ing these materials, the Corps expressed its continued dissatisfaction
with B&B's proposal. The Corps did not submit B&B's supplemental
materials to the public or the federal agencies for additional com-
ments.

On April 5, 1993, the district engineer (DE), who was charged with
making the final decision, officially denied the permit and issued a
statement of findings. He concluded that the detrimental environmen-
tal impacts of the project outweighed its benefits and that the project
was contrary to the public interest. He also concluded that B&B had
not demonstrated the absence of practicable alternatives.

At the time the DE rendered the decision, B&B had received all but
one of the permits it needed from Maryland and Prince George's
County. The outstanding permit, a state water quality permit, was
issued after the Corps denied B&B's permit. B&B invested over
$500,000 to secure state and local approval.

B&B then challenged the Corps' decision in district court. The dis-
trict court affirmed denial of the permit by granting the Corps' sum-
mary judgment motion.

II

The first issue on appeal is whether the district court abused its dis-
cretion by denying B&B's motion to supplement the administrative

                     4
record. In its motion, B&B sought to add to the record the Corps'
documents relating to two other rubblefills located in Prince George's
County, the Brandywine rubblefill (Brandywine) and the Chesapeake
Terrace rubblefill (CT), both of which had obtained section 404 per-
mits. B&B contends that a review of the permit applications for those
rubblefills reveals that the Corps' decision to deny B&B's permit was
arbitrary and capricious.

B&B argues that these documents should be viewed as part of the
administrative record because the Corps relied on those materials
when it evaluated B&B's application. As support for this claim, B&B
cites the DE's findings which state that Brandywine is an existing,
alternative rubble disposal site located near B&B's proposed site.
B&B also relies on an internal Corps memorandum that briefly docu-
ments the differences in the environmental conditions existing at
B&B's proposed site and the CT site.

We review the district court's decision to deny B&B's motion to
supplement the record for abuse of discretion. Inland Empire Public
Lands Council v. Glickman, 88 F.3d 697, 703-04 (9th Cir. 1996).
Judicial review of an agency decision is generally based on the record
developed before the agency. Florida Power & Light Co. v. Lorion,
470 U.S. 729, 743-44 (1985). The record includes"everything that
was before the agency pertaining to the merits of its decision."
Portland Audubon Soc. v. Endangered Species Comm. , 984 F.2d
1534, 1548 (9th Cir. 1993). When the record prepared by the agency
and submitted to the court omits evidentiary material that the agency
relied on to reach its decision, it is appropriate to add the omitted
materials to the record. Id.

The district court acted within its discretion when it determined
that the Corps did not rely on either the Brandywine or the CT docu-
ments to evaluate B&B's application. The references to Brandywine
and CT do not support a contrary inference. The DE's reference to the
Brandywine site shows only that the Corps was aware of an alterna-
tive rubblefill operating in the area. The DE's acknowledgment of this
basic, pertinent, and publicly known fact does not show that he relied
on any evidence or materials related to Brandywine's section 404 per-
mit application when evaluating B&B's proposal.

                    5
Similarly, the memorandum that discusses the differences between
the CT site and B&B's proposed site does not demonstrate that the
Corps relied on CT's permit application or other related materials to
evaluate B&B's application. The memo does not suggest that the
evaluation of the merits of B&B's application was altered by facts or
evidence related to the CT site. Instead, the memo merely sets forth
the environmental conditions existing at each site:

          1. The following information is provided in order to clar-
          ify the site differences between B&B Partnership's landfill
          site pending denial and the Chesapeake Terrace Rubble
          Landfill for which a Department of the Army (DA) permit
          is being issued.

          ...

          3. The Chesapeake Terrace site is an abandoned sand and
          gravel quarry in Anne Arundel County. The wetlands to be
          impacted by the actual rubble fill are relatively low quality
          emergent wetlands formed in shallow depressions caused by
          mining activity. These shallow emergent wetlands contain
          only mono-typic vegetation and most likely "dry-up" during
          the summer months. The area adjacent to these wetlands is
          basically a barren sand and gravel landscape with no habitat
          value. Other more valuable wetlands on this site will not be
          impacted and are to be protected by a conservation ease-
          ment. Mitigation is also to be performed.

          4. Regarding the B&B site, the rubble is to be placed in a
          naturally occurring steep sloped ravine. The ravine contains
          an ephemeral to intermittent stream at the bottom with adja-
          cent forested wetlands. The slopes of the ravine are heavily
          forested (climax stage). The project would involve piping
          and filling the stream to create the substrate for the landfill
          and the removal of all forest up to the top of the ravine. The
          area also provides quality wildlife habitat.

The memo does not suggest that the Corps relied on any information
or materials related to the CT site to reach, or to support, its findings
about the environmental conditions at B&B's site. Those conditions

                     6
--such as the existence of the stream, the location and evaluation of
the forest, and the suitability of the area for wildlife--reflect site-
specific information, unrelated to the CT site. The memorandum
observes that each decision is warranted by the conditions existing at
the respective sites. This is not a situation in which the Corps relied
on another application to justify its denial of B&B's permit. Rather,
the reasons for the Corps' decision, as documented in its statement of
findings, relate to the particular environmental impacts on the pro-
posed site. In short, the CT documents do not pertain to the merits of
the Corps' decision about B&B's application.

B&B did not demonstrate that the Corps relied on either the Bran-
dywine or CT documents when it evaluated B&B's application. The
district court did not abuse its discretion by holding that the docu-
ments should not be considered part of the administrative record.

III

The next issue is whether the Corps' decision to deny the permit
was arbitrary and capricious. The Administrative Procedures Act
(APA) establishes the standard for judicial review of a Corps deci-
sion. Friends of the Earth v. Hintz, 800 F.2d 822, 830-31 (9th Cir.
1986). According to the prescribed standard, the Corps' decision must
be disturbed if it is arbitrary and capricious, an abuse of discretion,
or otherwise not in accordance with law. Citizens to Preserve Overton
Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971), abrogated on other
grounds, Califano v. Sanders, 430 U.S. 99 (1977). When a court
reviews the substance of an agency decision under the arbitrary and
capricious standard, it must "consider whether the decision was based
on a consideration of the relevant factors and whether there has been
a clear error of judgment." Id. at 416."Although this inquiry into the
facts is to be searching and careful, the ultimate standard of review
is a narrow one." Id. "The court is not empowered to substitute its
judgment for that of the agency." Id.

Section 404 of the Clean Water Act authorizes the Secretary of the
Army, acting through the Corps of Engineers, to issue permits allow-
ing, among other things, the discharge of fill into waters of the United
States. 33 U.S.C. § 1344(a). In the absence of a permit, the Act pro-
hibits such discharges. 33 U.S.C. § 1311(a).

                    7
The evaluation process for a section 404 permit application is pre-
scribed by regulation. See 33 C.F.R. §§ 320.4 et seq. In order to
receive a permit, an applicant must clear two hurdles. The applicant
must demonstrate that the proposed project satisfies the EPA's section
404(b) guidelines, which begin at 40 C.F.R. § 230. See 33 U.S.C.
§ 1344(b); 33 C.F.R. § 323.6(a). The EPA's guidelines specify that a
permit should not issue if "there is a practicable alternative to the pro-
posed discharge which would have less adverse impact on the aquatic
ecosystem . . . ." 40 C.F.R. § 230.10(a).

In addition to determining if the project meets the criteria estab-
lished by the guidelines, the Corps must conduct an independent
assessment of the project's merits to determine whether it is in the
public interest. 33 C.F.R. § 323.6(a). This public interest review, as
it is called, involves weighing the project's benefits against its detri-
ments, including the cumulative impact of the proposed project. 33
C.F.R. § 320.4. If the proposal does not satisfy the guidelines or if it
is judged not to be in the public interest, the Corps must deny the per-
mit. The Corps' public interest review involves an examination of the
project's overall impact. Factors taken into consideration include:

          . . . conservation, economics, aesthetics, general environ-
          mental concerns, wetlands, historic properties, fish and
          wildlife values, flood hazards, floodplain values, land use,
          navigation, shore erosion and accretion, recreation, water
          supply and conservation, water quality, energy needs,
          safety, food and fiber production, mineral needs, consider-
          ation of property ownership, and, in general, the needs and
          welfare of the people.

33 C.F.R. § 320.4(a)(1). If, after examining these factors, the Corps
decides a project is contrary to the public interest, no permit will be
issued. Id.; 33 C.F.R. § 323.6(a). When the Corps reaches a final deci-
sion, it is obliged to prepare a report setting forth its findings and con-
clusions. 33 C.F.R. § 325.2(a)(6).

IV

The Corps articulated a rational basis for denying B&B's permit.
After reviewing the relevant factors, the Corps concluded that the

                     8
project would cause substantial adverse environmental impacts. Those
impacts include "wetland function and value loss, loss of valuable
wildlife habitat, removal of the area's food chain support capabilities,
degraded local air quality, and increased noise." In the Corps' view,
these adverse impacts outweighed the project's benefits, making the
project contrary to the public interest. The Corps also concluded that
B&B had not clearly demonstrated the absence of practicable alterna-
tives. As the district court found, the project's negative environmental
impacts provide a rational basis for the Corps' decision.

B&B argues that the Corps' conclusions about environmental
impacts are not supported by facts in the record. Specifically, B&B
claims the record does not establish that the project will adversely
affect fish and wildlife, the area's food chain production capabilities,
water quality and wetlands, air quality, and noise levels.

Contrary to B&B's assertion, the record does include evidentiary
support for the Corps' findings. To evaluate B&B's application, the
Corps reviewed the proposed physical changes involved in creating
the rubblefill. The Corps then, with the aid of the FWS and the
NMFS, examined the site to assess the environmental conditions that
exist there. Finally, applying its scientific expertise and its general
knowledge of local natural resources, the Corps determined how the
proposed physical changes were likely to effect the environment.

By filling the ravine with debris, B&B's plan would eliminate the
1.1 acres of ravine wetland and .4 acres of wetland for the stream
crossing, although the latter disturbance would be for a temporary
period of 10 years. Filling the ravine would also eliminate the estab-
lished forest located there. Undeniably, destruction of the ravine wet-
lands and forest would eliminate the wildlife habitat and food
production provided by those resources. Loss of the wetlands means
that the headwater stream that empties into Tinkers Creek would also
be lost.

The Corps determined that the physical changes contemplated by
B&B's plans would have additional environmental impacts. First, the
Corps found that filling the ravine would eliminate or displace the
wildlife inhabiting the area. It also found that the wildlife in the sur-
rounding lands would be impacted because the ravine is an integral

                     9
part of the surrounding ecosystem. The Corps based those findings on
its review of B&B's plans, inspections of the site, and the report pre-
pared by FWS biologists based on their site inspection.

Next, the Corps determined that elimination of the headwater
stream would add to the cumulative negative impact on environmen-
tal resources caused by the loss of other headwaters in the area. The
Corps also determined that the wetlands involved here are particularly
valuable because few such undisturbed sites remain in Prince
George's County.

In agreement with the district court, we conclude that the evidence
in the record provides a rational basis for the Corps' denial of B&B's
application for a permit.

V

In addition to challenging the evidentiary basis of the Corps' deci-
sion, B&B asserts that the Corps did not adhere to regulatory proce-
dures. Specifically, B&B contends that the Corps was required to
submit the supplemental materials, which B&B had provided in
response to the public comments, to FWS, NMFS, and EPA for their
review. In particular, B&B notes that its supplemental materials
addressed the concerns raised by the FWS about the bald eagle's nest
located on the property adjacent to the site.

The Corps' regulations state that the "district engineer will issue a
supplemental, revised, or corrected public notice if in his view there
is a change in the [permit] application data that would affect the pub-
lic's review of the proposal." 33 C.F.R. § 325.2(a)(2). This regulation
plainly does not require the Corps to issue such a notice and accept
additional comments whenever an applicant submits supplemental
material. The Corps is required to do so only when the DE believes
that the supplemental materials would affect the public's view.

In this case, the DE decided not to seek additional comments. In
doing so, he did not abuse his discretion. The supplemental materials
submitted by B&B did not ameliorate the principal negative environ-
mental impacts caused by filling the ravine. While it is true that the

                    10
plan modifications offered greater protection for the bald eagle's nest,
that concern was not one of the principal bases for the Corps' deci-
sion. Because the Corps was not required to solicit additional com-
ments, B&B's procedural claim is without merit.

The district court's judgment is affirmed.

AFFIRMED

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