
USCA1 Opinion

	




          July 15, 1992          ____________________          No. 91-2215                         TOWN OF NORFOLK AND TOWN OF WALPOLE,                               Plaintiffs, Appellants,                                          v.                    UNITED STATES ARMY CORPS OF ENGINEERS, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. A. David Mazzone, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                              Torruella, Circuit Judge,                                         _____________                     Campbell and Bownes, Senior Circuit Judges.                                          _____________________                                _____________________               Stephen D. Anderson for  appellant Town of Norfolk and  John               ___________________                                     ____          W.  Giorgio for  appellant  Town of  Walpole,  with whom  Leonard          ___________                                               _______          Kopelman,  Kopelman  and   Paige,  P.C.,   Anderson  &   Kreiger,          ________   ____________________________    _____________________          Christopher H. Little and Tillinghast, Collins & Graham,  were on          _____________________     _____________________________          brief.               George B.  Henderson II,  Assistant United  States Attorney,               _______________________          with whom  Barry M.  Hartman, Acting Assistant  Attorney General,                     _________________          Environment and Natural Resources Division, Wayne A. Budd, United                                                      _____________          States  Attorney,  William   B.  Lazarus,  Stephen   L.  Samuels,                             _____________________   _____________________          Elizabeth  Yu,  Attorneys,  Department  of   Justice,  Steven  H.          _____________                                          __________          Goldberg, of  counsel Gary Pasternak, Assistant District Counsel,          ________              ______________          Department of the Army,  Corps of Engineers, were on  joint brief          for  appellees   United  States  Army  Corps   of  Engineers  and          Massachusetts Water Resources Authority.                                  ____________________                                 ____________________                                         -2-                    TORRUELLA, Circuit Judge.  On this appeal, the Towns of                               _____________          Walpole and Norfolk challenge the decision of the U.S. Army Corps          of Engineers ("Corps") to issue a permit under Section 404 of the          Clean  Water  Act1 to  allow  the  Massachusetts Water  Resources          Authority ("MWRA") to place fill in an artificial wetland located          in the  Town of Walpole  and adjacent  to the  Town of  Norfolk.2          The district court,  in a comprehensive  opinion, found that  the          Corps'  determinations  under  Section 404  were  not  arbitrary,          capricious or otherwise not in  accordance with law and therefore          it granted summary judgment  in favor of the Corps,  its district          engineer for New England, and  the MWRA (collectively referred to          herein as defendants).   Norfolk & Walpole v.  U.S. Army Corps of                                   _________________     __________________          Engineers, 772 F. Supp. 680 (D. Mass. 1991).            _________                    In  addition, the  Towns  challenge  (1)  the  district          court's  decision to  allow  a  motion  by  defendants  to  quash          subpoenas  and  for a  protective order  to prevent  discovery of          certain documents3 and  (2) the district court judge's  denial of          the  Towns'  motion  for his  recusal  pursuant  to  28 U.S.C.                                           ____________________          1  33 U.S.C.   1344.          2  In a related appeal,  the Towns challenged the adequacy of the          supplemental  environmental  impact  statement  prepared  by  the          United States  Environmental Protection  Agency  ("EPA") for  the          proposed  landfill.  Norfolk v.  United States EPA,  761 F. Supp.                               _______     _________________          867 (D. Mass.  1991).  We affirmed the district  court's grant of          summary judgment in favor of the EPA and its Administrator.          3   Norfolk & Walpole v. U.S. Army Corps of Engineers, 137 F.R.D.              _________________    ____________________________          183 (D. Mass. 1991).                                         -3-          455(a).4   We  affirm the rulings  and decisions of the  district          court for the reasons that follow.                                           I          A.  Factual Background          A.  Factual Background              __________________                    This appeal is an offspring  of the colossal effort  to          clean up Boston Harbor.  This particular controversy -- involving          the issuance of a permit  to construct and operate a  landfill in          Walpole   --  has  been  described  elsewhere  in  detail.5    We          therefore summarize the facts pertinent to this appeal.                    Pursuant to a compliance  plan approved by the District          Court for the District of Massachusetts to abate the discharge of          inadequately  treated  wastewater  and  sewage  sludge  and other          residuals into Boston  Harbor, the MWRA was required, among other          remedies,  to construct and operate  a landfill by  March 1994 to          hold grit,  screenings and, if necessary,  digested or heat-dried          sludge from  its wastewater treatment facilities.   See generally                                                              ___ _________          United  States v. Metropolitan  Dist. Comm'n, 23  Env't Rep. Cas.          ______________    __________________________          1350 (D.  Mass. 1985).   In 1986 the  MWRA began to  work closely          with  the  U.S. Environmental  Protection  Agency  (EPA) to  find          possible alternatives for both sludge management technologies and                                        ____________________          4  Section 455(a) provides:                      Any justice, judge, or magistrate  of the                      United  States shall  disqualify himself,                                     _____                      in   any   proceeding   in    which   his                      impartiality    might    reasonably    be                      questioned.          5   United States v.  Metropolitan Dist. Com.,  757 F. Supp. 121,              _____________     _______________________          123-26 (D. Mass. 1991), aff'd, 930 F.2d 132 (1st Cir. 1992).                                   _____                                         -4-          potential sites  for the landfill.   Eventually four technologies          and  ten  potential sites  were identified  from  a field  of 299          sites.                    Additional evaluation was  conducted to further  screen          the  potential sites for detailed analysis.  The criteria used at          this stage  of the  screening  included environmental  standards,          such  as  ecology  and  air  quality  and  potential  groundwater          effects,  and non-environmental  criteria, such  as cost  and the          extent  to  which  potential  communities  were  already  hosting          permanent wastewater treatment facilities.   This screening stage          eliminated four sites on environmental and other grounds.  Of the          remaining  six  sites, four  were  further  evaluated for  sludge          processing, while  two sites  -- Rowe  Quarry and MCI-Walpole  --          were further evaluated for a landfill operation.                    In  February  of  1989,   the  MWRA  issued  its  Draft          Environmental   Impact  Report  and  Draft  Residuals  Management          Facilities Plan ("DEIR").  The MWRA proposed to process sludge at          the  Fore River  Staging  Area in  Quincy,  Massachusetts and  to          landfill the residuals at the MCI-Walpole  site.  In May of 1989,          EPA  issued a  Draft Supplemental Environmental  Impact Statement          ("DSEIS").   In its analysis of the proposed landfill at Walpole,          EPA identified  two major critical groundwater  supplies.  First,          the Massachusetts Department of Corrections maintains a number of          public water  supply wells located in the Charles River Watershed          Aquifer to the west of the proposed landfill.  These wells supply          drinking  water   to  the  MCI-Norfolk   and  MCI-Walpole  prison                                         -5-          facilities.  Second, to the east of the landfill site is the head          of the Neponset Sole  Source Aquifer.6  This sole  source aquifer          serves several wells that  are the only source of  drinking water          to the  residents of the  Town of Walpole.7   EPA concluded  that          the nearest  of these wells is  located more than two  miles from          the landfill site and is separated from the landfill  by soils of          low permeability.  In  March 30, 1990, EPA formally  approved the          construction and operation of the landfill at the Walpole site.                    Pursuant to  Section 404 of  the Clean Water  Act,8 the          Corps is  required to review permit applications  for proposal to          dredge  and fill  wetlands under  the standards  set forth  in 33          C.F.R.   320.4(a)(1) and 40 C.F.R.   230.  In  May 1990, the MWRA          submitted  a revised  permit  application describing  all of  its          proposed projects  to clean Boston Harbor,  including the Walpole          landfill.9                    On  July  12, 1990,  the Corps  issued a  public notice                                        ____________________          6  A  sole source aquifer is  a designation given  by EPA to  the          principal or sole source of drinking water for a given area.  The          western  boundary of the Neponset Sole Source Aquifer runs to the          east of the MCI-Walpole landfill.          7   In addition,  south of  the  landfill are  wells that  supply          drinking water  to Southwood Hospital  and north of  the landfill          are  wells which supply  drinking water to  private residences, a          horse ranch and a dog kennel.           8  33 U.S.C.   1344.          9  The projects included the construction of a headworks facility          for  preliminary  treatment of  sewage on  Nut  Island, a  5 mile          inter-island wastewater tunnel between Nut and Deer Island, a 9.5          mile effluent  outfall tunnel and  diffuser from  Deer Island  to          offshore  waters, a sludge processing facility at Quincy, and the          residuals landfill at issue in this case.                                          -6-          concerning the  MWRA's application,  which proposed to  set aside          forty-six acres of a ninety-four acre plot located in the Town of          Walpole  and adjacent  to  the Town  of  Norfolk.   Under  MWRA's          proposal, a 600 square  foot area of man-made wetland  located in          the  center  of  the proposed  project  would  be  filled.   This          wetland,   also  known   as  Wetland   E,  was  created   by  the          Massachusetts Department of Corrections as an obstacle course for          training prison  guards.   The National Marine  Fisheries Service          and the U.S. Fish  and Wildlife Service submitted a  comment form          indicating  no  objection  to the  project.    EPA  and the  MWRA          submitted comments in support of the proposed landfill.  However,          the Towns of Norfolk and Walpole submitted detailed objections to          the MWRA proposal.                       The Towns objected to the proposed landfill essentially          on  four grounds.   First,  the Towns claimed  that the  MWRA had          failed to demonstrate that no practicable alternative having less          adverse impact on the aquatic ecosystem existed as required under          40  C.F.R.     230.10(a).   Second,  the  Towns  argued that  the          landfill would eliminate over fifty percent of the surface  water          supply  to  a portion  of  an  adjacent wetland,  thus  allegedly          causing substantial disruption to  the overall wetland  resource,          including  a  significant  adverse  impact  on  a  vernal  pool10          located within 100 to 150 feet of the landfill footprint.  Third,          the  Towns alleged  that  the proposed  landfill would  adversely                                        ____________________          10   Vernal pools serve as the  sole breeding habitat for certain          amphibian  species and provide breeding and feeding habitat for a          variety of other species.                                          -7-          impact wildlife habitats for  the great blue heron and  the pied-          billed  grebe.  Fourth, the Towns claim that the MWRA disregarded          the  adverse   impact  the   proposed  landfill  would   have  on          groundwater resources.                      David  H. Killoy,  a  branch supervisor  of the  Corps'          Regulatory Division,  also  opposed  the  MWRA's  application  to          construct  and operate  the  landfill in  Walpole.   In  a  draft          memorandum dated December  24, 1990, Mr. Killoy found  two unique          conditions which,  in his  opinion, required  that the  permit be          denied because  it failed "two parts of  the 404(b)(1) guidelines          and it is  contrary to the public  interest."11  First, the  MWRA          had  failed  to demonstrate  the  nonexistence  of a  practicable          alternative to the landfill would have less adverse impact on the          aquatic ecosystem.  Mr. Killoy concluded that even a small threat          to the Neponset  Sole Source  Aquifer in the  area constituted  a          significant  adverse  environmental  consequence.    Second,  the          discharge  of fill may contribute to a significant degradation of          the  waters of  the United  States, in  this instance,  the wells          which supply drinking  water.  Mr. Killoy also noted  that in the          Corps'  review of the Central  Artery and Tunnel  Project, he had          identified a "wide range  of sites which were available  for land          fill."12                     In light of the claims by Mr. Killoy and the Towns, the          Corps'  Regulatory  Branch  requested  its Hydraulics  and  Water                                        ____________________          11  Memorandum by David H. Killoy, dated December 24, 1990, at 7.          12  Id. at 6.              __                                         -8-          Quality Branch,  Water Control Division to  examine the available          reports  and  data  on  groundwater  impacts  and  to  prepare  a          technical  report on the potential risk  for contamination of the          water  supplies.    The   ensuing  report  recommended  that  the          monitoring system be expanded to include at  least one monitoring          well  to  detect any  leachate13  escaping  towards the  Neponset          Sole  Source Aquifer.   The  report concluded  "that the  risk to          drinking   water  supplies   from  [the   Walpole]  landfill   is          minor."14                    On  January  23, 1991,  Mr.  Killoy  submitted a  final          memorandum  summarizing his continued  opposition to  the Walpole          landfill.   Mr.  Killoy asserted  that the  MWRA had  not clearly          demonstrated that Walpole was the "least environmentally damaging          practicable alternative" for the following three reasons.  First,          if groundwater flow contributed  substantially to the nearby down          gradient wetlands, then "the  removal of 46 acres  of groundwater          recharge area, high  on the groundwater divide, by  capping could          deplete   the  wetlands   water  supply   causing  a   long  term          degradation."15   Second,  the  application contained  too little          information  on  the  location  of bedrock  and  its  properties.          Third, the investigation "essentially  neglected the presence  of          the  [sole  source aquifer]  and  until  the final  environmental                                        ____________________          13   Leachate refers to precipitation that will percolate through          the residuals placed at the landfill.          14  Report, dated February 1991 at 1, 23.          15  Killoy Memorandum of January 23, 1991,   4.                                         -9-          documents  ignored  the nearby  private  wells."16   Mr.  Killoy,          however, concluded with the following observation:                      I also recognize  that many of the  items                      above can be  interpreted differently  by                      different  reviewers who  could recommend                      issuance of the permit  without appearing                      arbitrary  or capricious.   This is where                      the decision maker takes over.          Id. at   52.          __                    Less   than  three  weeks   after  Mr.   Killoy's  last          memorandum,  the  Corps issued  its  Record  of Decision  ("ROD")          granting a permit to the MWRA to inter alia construct and operate                                           _____ ____          the MCI-Walpole landfill.  As further elaborated below, the Towns          claim that the Corps'  permitting process is plagued  with errors          and that the decision to  issue the permit was based  on improper          pressure by the U.S. Department of Justice and EPA.             B.  Statutory and Regulatory Background           B.  Statutory and Regulatory Background              ___________________________________                    Congress  enacted the  Clean  Water Act17  ("CWA")  "to          restore and  maintain  the  chemical,  physical,  and  biological          integrity of the Nation's waters."  33 U.S.C.   1251(a); see also                                                                   ________          40 C.F.R.   230.1.  Section 301 of the CWA makes the discharge of          pollutants into navigable waters  unlawful, unless such discharge          is  authorized  by  permit.   The  term  "pollutants" is  defined          broadly  and  includes dredged  or  fill  material.18   The  term          "navigable waters"  is similarly all  encompassing, covering  all                                        ____________________          16  Id. at 14.              __          17  33 U.S.C.   1311(a).          18  33 U.S.C.   1362(6).                                         -10-          "waters of the United States." 33 U.S.C.   1362(7).  Wetlands are          included in the definition  of "waters of the United  States."19                     Section  404  of  the   CWA  authorizes  the  Corps  of          Engineers to issue or  deny permits for the discharge  of dredged          or  fill material.  33 U.S.C.    1344(a).  Generally an applicant          seeking  a  permit  under   Section  404  submits  an  individual          application   for  each   discharge.     In  considering   permit          applications, the Corps is required  to apply the regulations and          guidelines  set forth in Titles 33 and  40 of the Code of Federal          Regulations.  33 C.F.R.   320 and 40 C.F.R. Part 230.                       Section 404(b)(1) of the CWA directs the Corps to apply          the guidelines developed by  the EPA Administrator in conjunction          with  the  Secretary of  the Army,  acting  through the  Chief of          Engineers.  33 U.S.C.   1344(b)(1).  These Section 404 guidelines          are codified at 40 C.F.R. Part 230.                     Under 33  C.F.R.    320.4(a)(1), the Corps  evaluates a          permit  application's  "probable  impacts,  including  cumulative          impacts,  of the proposed activity  on the public  interest."  33          C.F.R.     320.4(a)(1).20   The  Towns  contend that  the  Corps'                                        ____________________          19  40 C.F.R.   230.3(s)(7).  See also United States v. Riverside                                        ________ _____________    _________          Bayview Homes, Inc.,  474 U.S. 121 (1985) (Corps acted reasonably          ___________________          in interpreting Clean Water Act  to require permits for discharge          of material into wetland).             20   Among  the  factors evaluated  under  this "public  interest          review" are                      conservation,    economics,   aesthetics,                      general environmental concerns, wetlands,                      historic  properties,  fish and  wildlife                                         -11-          determination to issue the  permit is erroneous under subsections          (a),  (b)  & (c)  of  40  C.F.R.    230.10  and  under 33  C.F.R.            320.4(a)(1).                                        ____________________                      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,  consideration of property                      ownership  and, in general, the needs and                      welfare of the people.          33 C.F.R.   320.4(a)(1).                                         -12-          C.  Standard of Review          C.  Standard of Review              __________________                    The district court's grant of summary judgment in favor          of  the defendants  is  reviewed de  novo.  See, e.g.,  Medina  &                                           __  ____   ___  ____   _________          Sucesores,  Inc., et al. v.  Custodio, et al.,  No. 91-1469, slip          ________________________     ________________          op. at  17 (1st Cir.  May 7, 1992).   Rule  56(c) of the  Federal          Rules  of Civil  Procedure  provides that  a  motion for  summary          judgment  shall be  granted if it  is clear from  the record that          "there is no genuine issue  as to any material fact and  that the          moving party is entitled to a judgment as a matter law."                        We review the Corps decision to issue the permit  under          the standard of review set  forth in the Administrative Procedure          Act,21 pursuant to  which an  agency's action will  be set  aside          only if it  is found  to be "arbitrary,  capricious, an abuse  of          discretion, or otherwise not in accordance with law."                      To determine whether the Corps's decision complies with          the arbitrary and capricious standard, we consider                       whether  the  decision  was  based  on  a                      consideration of the relevant factors and                      whether  there has been  a clear error of                      judgment.  Although this inquiry into the                      facts is to be searching and careful, the                      ultimate standard  of review is  a narrow                      one.   The  court  is  not  empowered  to                      substitute its judgment  for that of  the                      [Corps].          Citizens to Preserve Overton  Park, Inc. v. Volpe, 401  U.S. 402,          ________________________________________    _____          416 (1971).  See  also United States v. Riverside  Bayview Homes,                       _________ _____________    _________________________          Inc., 474 U.S. 121 (1985) ("An agency's construction of a statute          ____          it  is charged with  enforcing is entitled to  deference if it is                                        ____________________          21  5 U.S.C.   706(2)(A).                                         -13-          reasonable  and  not in  conflict  with the  expressed  intent of          Congress"); All Regions  Chemical Labs, Inc. v.  U.S. E.P.A., 932                      ________________________________     ___________          F.2d 73, 75 (1st Cir. 1991) ("In reviewing EPA's decision we must          pay particular attention  to the interpretation that it gives its          own  rules  and  regulations");  Environmental  Coalition Broward                                           ________________________________          County,  Inc.  v.  Myers, 831  F.2d  984,  986  (11th Cir.  1987)          _____________      _____          (deference   to   the  Corps'   determination   is  "particularly          appropriate in the case of complex environmental statutes such as          the Clean Water Act.").                                            II                                  Section 230.10(a)                                  Section 230.10(a)                                  _________________                    Section 230.10(a) provides that:                       no  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 alternative  does not  have other                      significant     adverse     environmental                      consequences.            40 C.F.R.   230.10(a).                      In  its Record of  Decision, the  Corps found  that the          impact of the  Walpole landfill  on the aquatic  ecosystem to  be          inconsequential considering the low value of  the 600 square foot          landfill and  the minor  potential secondary impacts  to adjacent          wetlands  and   waters.    The   Towns  assert  that   the  Corps          interpretation of the Section  230.10(a) guidelines is flawed for          three reasons.   First, the  Corps erred in  concluding that  the          direct   impacts   were   "inconsequential."     This   erroneous          conclusion, the  Towns assert, reversed the  presumption embodied                                         -14-          in Section 230.10(a),  which requires the  Corps to presume  that          other practicable  alternatives exist.   Second, the  Towns claim          that  the Corps erred in concluding  that the mitigation measures          proposed  in the  MWRA's application  would render  the secondary          impacts to surrounding wetlands  "inconsequential."  Third, it is          alleged that  the Corps failed to consider groundwater impacts as          part  of  the  practicable   alternatives  analysis  because   it          erroneously concluded  that the term "aquatic  ecosystem" as used          in Section 230.10(a) generally excludes groundwater.            A.     Did  the  Corps  Reasonably  Conclude  that  There  is  No                 __________________________________________________________          Practicable          ___________              Alternative?               ___________                    The Towns argue that  the Corps' conclusion that direct          impacts to Wetland E (the 600 square foot, man-made wetland) were          inconsequential  is   not  supported  by  the   evidence.    This          "evidence"  consists of a By-Law  enacted by the  Town of Walpole          making Wetland E a  protected resource.  This argument  fails for          two reasons.                    First,  and foremost,  the  Towns failed  to make  this          Wetland By-Law part of the administrative record.  We have no way          of knowing the  terms of this By-Law.   Since judicial  review of          the  Corps' permit  decisions  is limited  to the  administrative          record, the Towns' argument  fails.  See, e.g., Friends  of Earth                                               ___  ____  _________________          v.  Hintz,  800 F.2d  822, 830-31  (9th  Cir. 1986)  (standard of              _____          review  for   the  Section  404  permitting   process  under  the          Administrative  Procedures Act is  "highly deferential"); Buttrey                                                                    _______                                         -15-          v.  United States, 690 F.2d  1170 (5th Cir.  1982), cert. denied,              _____________                                   ____  ______          461 U.S.  927 (1983) ("[Courts]  look only to  the administrative          record  in  order  to  determine  if  the  Corps'   decision  was          arbitrary, capricious, or not in accordance with law.").                       Second, even  assuming the  inclusion of the  By-Law in          the administrative  record, the fact that Walpole has passed such          a  By-Law  is  insufficient  to  establish that  the  direct  and          secondary  impacts to  the ecosystem  are not  "inconsequential."          Dubbing  a piece of real estate "wetland" by municipal edict does          not establish such a  conclusion de jure for purposes  of federal                                           __ ____          law nor does  the By-Law grant  per se  "consequence."  We  agree                                          ___ __          with the  Corps that Walpole's  By-Law has no  legal significance          since the MWRA is not subject to them.                    The  Towns  also  claim  that in  concluding  that  the          impacts to Wetland E  was negligible and therefore that  no other          practicable alternative having less environmental impact existed,          the  Corps reversed  the rebuttable  presumption contained  in 40          C.F.R.   230.10(a).  We disagree.                      None  of the  comments received  by the  Corps disputed          that this 600  square feet  area consisted of  an isolated,  man-          made,  low-value wetland.  Neither Town  asserted in the comments          submitted  to  the   Corps  that  Wetland  E  has  any  essential          ecological value  nor have they presented  evidence to contradict          the finding  by the  Corps that  this small  area of wetland  has          "virtually  no function or value."  Record  of Decision at 7.  In          addition, we note that  Wetland E does not meet  the criteria for                                         -16-          regulation under  the Massachusetts Wetland Protection  Act.  See                                                                        ___          310 Code of Massachusetts Regulations 10.57(1)(b).                    The  Towns argue  that  once the  Corps found  that the          direct  impact  of the  landfill  was  "inconsequential," it  was          required to conduct an  exhaustive feasibility evaluation of each          of  the  299  alternatives   sites  initially  screened  for  the          landfill.   See  Appellants' Brief at  21.   We hold  that such a                      ___          rigid interpretation  of the  guidelines is not  warranted.   The          plain  language of  the Section  404 regulatory  scheme indicates          that the level  of review depends on  the nature and  severity of          the   project's  impact   on  the   environment.     The  general          introduction for Section 230.10 states:                      Although  all  requirements  in    230.10                      must  be  met, the  compliance evaluation                      procedures  will  vary  to   reflect  the                      seriousness of the potential  for adverse                      impacts on the  aquatic ecosystems  posed                      by  specific  dredged  or  fill  material                      discharge activities.            40 C.F.R.    230.10.   In Section 230.6,  the Guidelines  further          provide:                      (a)   .  .   .  These   Guidelines  allow                      evaluation   and   documentation  for   a                      variety  of  actives, ranging  from those                      with  large,  complex   impacts  on   the                      aquatic  environment  to those  for which                      the impact is likely to be innocuous.  It                      is  unlikely  that  the  Guidelines  will                      apply  in  their   entirety  to  any  one                      activity, no  matter how complex.   It is                      anticipated  that substantial  numbers of                      permit  applications  will be  for minor,                      routine activities that  have little,  if                      any,     potential     for    significant                      degradation  of the  aquatic environment.                      It generally is not intended  or expected                      _________________________________________                      that  extensive  testing,  evaluation  or                      _________________________________________                                         -17-                      analysis  will be needed to make findings                      _________________________________________                      of compliance in such routine cases.                       ___________________________________                      (b)  The  Guidelines user,  including the                      agency   or   agencies  responsible   for                      implementing    the   Guidelines,    must                      recognize that different levels of effort                      that  should  be associated  with varying                      degrees of impact and require  or prepare                      commensurate documentation.  The level of                                                   ____________                      documentation    should    reflect    the                      _________________________________________                      significance   and   complexity  of   the                      _________________________________________                      discharge activity.                      __________________          40 C.F.R.   230.6(a) & (b) (1991) (emphasis added).                     Clearly, the  guidelines contemplate an  analysis which          varies  in  magnitude depending  on  the impact  of  the proposed          discharge,  rather than  the dogmatic  scrutiny suggested  by the          Towns.   In cases such  as this one,  where the MWRA and  the EPA          conducted a thorough environmental analysis of alternative sites,          and  where the Corps' determination that the direct impact on the          aquatic  ecosystem  of filling  the  600  square foot  artificial          wetland is negligible is  supported by the administrative record,          the  Corps is not  required under Section  230.10(a) to duplicate          the analysis conducted by the  MWRA and EPA.  Norfolk  & Walpole,                                                        __________________          772 F. Supp. at 687.                      Nor  can  the  Corps  be faulted  for  relying  on  the          alternative analysis  conducted  by  EPA  in its  review  of  the          landfill  pursuant to  the National  Environmental Policy  Act.22          In  doing so, the  Corps followed  the recommendation  of Section          230.10(a)(4), which provides  that "the analysis of  alternatives          required  for NEPA  environmental documents  . .  . will  in most                                        ____________________          22  42 U.S.C.   4321 et seq.                               __ ___                                         -18-          cases provide the information  for the evaluation of alternatives          under [the Section 404]  Guidelines."  Although Section 230.10(a)          recognizes that the NEPA review may provide insufficient analysis          to  meet the Section 404  guidelines requirements, it is apparent          here  that  the  Corps  supplemented  the  extensive alternatives          analysis  conducted by  the  MWRA and  the  EPA.   The Corps  re-          evaluated   several  potential   sites   to   verify   that   the          environmental  criteria used  in  the selection  of the  proposed          landfill was properly applied.  The Corps found                      that many of these sites  didn't meet the                      landfill    acreage   requirements    and                      therefore    were    appropriately    not                      considered  for  landfills.   Other sites                      which were considered for  landfills were                      ranked   lower   than   Walpole-MCI   and                      therefore deemed less preferable  and not                      carried forward.            ROD  at 11.    The Corps  reasonably  relied on  the  substantial          evaluation  conducted  by  the MWRA  and  EPA  to  find that  the          landfill  in   Walpole  was   the  best  alternative   under  the          Guidelines.   The  initial screening  for a  landfill  began with          approximately  300   potential   sites  and   after   substantial          additional evaluation of about  ten individual sites, Walpole was          selected.  Under the practicable alternatives  test, the Corps is          not required to conduct  an independent feasibility evaluation of          each alternative site  merely because a party  disagrees with its          ultimate  conclusion.    We  hold  that  it  was  not  arbitrary,          capricious or contrary  to law for the Corps to  conclude that no          practicable  alternative to  this 600  square feet  of artificial          wetland exists which would  have a lesser "adverse impact  on the                                         -19-          aquatic  ecosystem."   40 C.F.R.   230.10(a)(3).   If  the Corps'          determination under  Section 404  is reasonably supported  by the          administrative  record, our inquiry must end.   Friends of Earth,                                                          ________________          800 F.2d at 835.                                         -20-          B.  Has the Corps Failed to Consider the Secondary Impacts on the              _____________________________________________________________              Wetlands of the Proposed Discharge on Aquatic Ecosystem?              _______________________________________________________                    The Corps analyzed  two potential secondary impacts  on          the adjacent  wetlands; (1)  the possibility that  leachate might          reach the surface waters in the event of a leak from the landfill          and (2)  the loss  of surface/groundwater  recharge.   The  Corps          concluded that although the  potential for leachate  transmission          into the adjacent wetlands existed,                      its likelihood will be  greatly minimized                      by the state-of-art  landfill design  and                      collection  system  which  will be  used.                      Even  if  some   leakage  occurred,   the                      propensity of wetlands to  assimilate the                      leachate  constituents  (i.e.  act  as  a                      sink) is  well recognized.   In fact  the                      use of wetlands as tertiary  treatment is                      well  documented  and recognized  by EPA.                      Therefore, the  effect is expected  to be                      minor.          ROD at  12.  The  Corps also characterized  the possible loss  of          surface water and  groundwater recharge as  a minor impact  since          "the  proportion of  precipitation falling  on the  landfill site          which infiltrates into the groundwater is small (about 1/5 [of an          acre])  .  .  . when  compared  to  the  proportion entering  the          adjacent wetlands as surface runoff" and the landfill represented          a  very small portion of  the total drainage  area supporting the          off-site wetlands.  Id.  The district court found that the Corps'                              __          conclusions regarding the secondary effects of the landfill to be          reasonable.  Norfolk & Walpole, 772 F. Supp. at 688.                        _________________                    The  Towns, however,  claim  that the  Corps failed  to          adequately  consider secondary  wetland  impacts as  part of  the                                         -21-          practicable alternatives  analysis.   The Towns' argument  run as          follows.   First,  the Corps  attempts to  avoid the  practicable          alternatives  analysis  by  concluding  that  certain  mitigation          measures  planned by the MWRA  would render any secondary impacts          to wetlands inconsequential.   Second, the Corps' conclusion that          Wetland E is a minor part of the total  drainage areas supporting          the Stop River wetlands  cannot serve as a justification  for the          issuance of  the permit, and in  any event, the Towns  argue that          they have presented evidence to contradict this finding.                      Citing Bersani  v. Robichaud, 850 F.2d 36,  39 (2d Cir.                           _______     _________          1988),  cert. denied, 489 U.S. 1089 (1989), the Towns allege that                  ____  ______          mitigation  measures may  not  be used  to  meet the  practicable          alternative analysis.   The Towns's interpretation  of Bersani is                                                                 _______          not persuasive.  In Bersani, the EPA denied  an application for a                              _______          permit to build a shopping mall  on 32 acres of "high quality red          maple swamp."  Id. at 40.  To compensate for filling  32 acres of                         __          this  "high quality" wetland, the developer proposed to create 36          acres of wetland in an  off-site gravel pit.  The  EPA determined          that this mitigation measure was insufficient because (1) of  its          scientific  uncertainty; (2)  the availability of  an alternative          site  for  the  shopping mall;  and  (3)  the  adverse effect  on          wildlife.   Bersani,  therefore, does  not announce  a procedural                      _______          straitjacket against the use of mitigation measures to compensate          for  environmental  losses,  but  rather  it  upholds  the  basic          proposition  that  if  mitigation  measures  are insufficient  to          compensate  for the loss of a valuable wetland, the permit should                                         -22-          be denied.  See also Friends of Earth v. Hintz, 800 F.2d 822, 826                      ________ ________________    _____          (9th  Cir.  1986) (affirming  Corps'  conditional  issuance of  a          Section  404 permit  on  compliance with  an agreement  proposing          mitigation measures).                     Moreover, in this case there will be no destruction of          a  "high quality" wetland area;  rather the direct  impact on the          aquatic environment involves the filling of 600 square feet of an          isolated, artificial wetland  that was used by the  Department of          Corrections as an obstacle course for training prison guards.  We          hold that it is reasonable for  the Corps to consider, under  the          practicable  alternatives analysis, the  functional value  of the          wetland to  be impacted and  the mitigation measures  proposed to          avoid secondary impacts.                      The Towns cite Buttrey v. United States,  690 F.2d 1170                                   _______    _____________          (5th  Cir. 1982),  cert.  denied, 461  U.S.  927 (1983)  for  the                             ____   ______          proposition that the  Corps cannot  rely on  its conclusion  that          Wetland  E is a minor part  of the total drainage area supporting          the Stop River  wetlands.   In Buttrey, a  land developer  argued                                         _______          that his project proposal to fill about 40 acres of wetland was a          "mere flyspeck"  in relation to  the river watershed  adjacent to          the  property.   The  Fifth Circuit  noted that  such "piecemeal"          review  of  the proposed  project is  prohibited  by 33  C.F.R.            320.4(b)(3), which provides:                      Although  a  particular  alteration of  a                      wetland  may  constitute a  minor change,                      the   cumulative   effect   of   numerous                      piecemeal changes  can result in  a major                      impairment of wetland  resources.   Thus,                      the  particular wetland site for which an                                         -23-                      application  is  made  will be  evaluated                      with the recognition that it may be  part                      of  a  complete and  interrelated wetland                      area.          Simply  stated, 33 C.F.R.    320.4(b)(3) --  which authorizes the          Corps  to consider  the cumulative  effect of  numerous piecemeal          changes in  its "public  interest  review" analysis  -- does  not          apply here.  The 600 square foot artificial wetland to be  filled          is not "part of  a complete and interrelated wetland area"; it is          isolated.  And none of the comments in this case contradicted the          Corps'  finding  that  Wetland E  had  virtually  no  value.   In          Buttrey,  it was undisputed that since the forty acre wetland was          _______          located  upstream, it  served  a unique  function in  maintaining          downstream  water quality.  The secondary impacts here result not          from filling  Wetland E but from  the setting aside of  46 acres,          most of which  is on upland.   Finally, the  proposed project  in          Buttrey was opposed by the Fish and Wildlife Service, EPA and the          _______          National Marine  Fisheries Service because they  alleged it would          inter  alia destroy a habitat and nursery ground for wildlife and          _____  ____          increase the risk of flooding  in surrounding neighborhoods.   No          such  opposition  was  registered by  these  government  agencies          against this project.                      In  their comments, the  Towns' consultants  claim that          the construction  of the landfill would  potentially eliminate up          to fifty  percent of  the  drainage areas  to adjacent  wetlands,          including  Wetland   A,  a   site  which   has  a   vernal  pool,          approximately  150  feet  from  the  footprint  of  the  proposed          landfill.   The Corps, however,  concluded that the landfill site                                         -24-          represents less than one  percent of the total drainage  area and          that   the  mitigation   measures   would   render  any   impacts          insignificant.   With  respect  to the  mitigation measures,  the          Corps specifically found:                      The [MWRA]  has  committed to  develop  a                      plan to capture  the rainfall and  return                      it to  the wetlands directly  adjacent to                      the landfill to protect  their hydrology.                      This leads to  the conclusion [that]  the                      potential  for  adverse  affect   on  the                      hydrology  of  the  adjacent wetlands  is                      minor.  In any event, the development  of                      the   landfill  will   include  elaborate                      monitoring of baseline conditions  of the                      adjacent wetlands, modelling of the water                      flows, and a  collection and  replacement                      system   to  return  the   water  to  the                      wetlands.     A  portion,  based  on  the                      modelling,  will  be returned  as surface                      water, and a portion  will be returned as                      ground water via an  infiltration system.          ROD at 12.  The Corps further noted that the MWRA has implemented          these mitigation  measures in other  projects and that  the Corps          had  "approval  authority  over  the  monitoring  and  mitigation          program through a  special condition of the permit . .  . ."  Id.                                                                        __          The  Towns' objection  to the  Corps findings  on the  subject of          drainage  reflect nothing  more than  a disagreement  between the          experts.    In cases  where  technical  disputes predominate  the          issues,  an agency's expertise is entitled to deference.  Chevron                                                                    _______          U.S.A. v. Natural Resources Defense  Council, Inc., 467 U.S. 837,          ______    ________________________________________          844  (1984).    We hold  that  the  Corps'  conclusions that  the          landfill  site represents  less  than one  percent  of the  total          drainage  area and that the mitigation  measures would render any          potential  impact  insignificant   are  not  clearly   arbitrary,                                         -25-          capricious or otherwise not in accordance to law.                                         -26-          C.  Are Groundwater Resources Part of the Aquatic Ecosystem for                ___________________________________________________________              Purposes of the Practicable Alternatives Analysis?              _________________________________________________                    In applying the  practicable alternatives analysis, the          Corps excluded  groundwater  resources from  consideration.   The          Towns allege that groundwater resources are part  of the "aquatic          ecosystem" for purposes of the practicable alternatives analysis.                    The district court held that:                      The  plain  language  of  the  Guidelines                      clearly   constrains   the    alternative                      analysis,  in  the  first   instance,  to                      effects   on   the   aquatic   ecosystem.                      "Aquatic ecosystem," in turn,  is defined                      as   "waters   of   the  United   States,                      including wetlands, that serve as habitat                      for    interrelated    and    interacting                      communities and populations of plants and                      animals."   40  C.F.R.    230.3(c).   The                      Corps'  determination  that   groundwater                      sources  are  not aquatic  ecosystems was                      clearly a reasonable interpretation  of                        230.10(a),   as   [groundwater   sources]                      cannot be  said to "serve as  habitat for                      interrelated and  interacting communities                      and populations of  plants and  animals."                      While  the  impact   on  groundwater   is                      certainly an "environmental consequence,"                      the alternatives analysis  is limited  to                      comparison  of  effects  on  the  aquatic                      ecosystem.          Norfolk  & Walpole,  772 F. Supp.  at 685.   The  Towns, however,          __________________          argue  that  groundwater  resources  are "waters  of  the  United          States."   40 C.F.R.   230.3(s)(3) provides that the term "waters          of the United States" includes:                      All  other  waters  such   as  intrastate                      lakes,    rivers,   streams    (including                      intermittent  streams),  mudflats,  sand-                      flats,    wetlands,   sloughs,    prairie                      potholes,  wet  meadows, playa  lakes, or                      natural  ponds,  the use,  degradation or                                         -27-                      destruction   of   which   could   affect                      interstate or  foreign commerce including                      any such waters:                      (i)  Which  are  or  could   be  used  by                      interstate   or  foreign   travelers  for                      recreational or other purposes . . . .          Although this  definition does not  indicate whether  groundwater          constitutes  "waters  of  the   United  States,"  the  Corps  has          interpreted this definition  to refer  only to  surface waters.            This  interpretation has been upheld by some courts.  Exxon Corp.                                                                ___________          v. Train,  554 F.2d 1310, 1329 (5th  Cir. 1977); Kelley v. United             _____                                         ______    ______          States, 618 F. Supp.  1103, 1105 (W.D. Mich. 1985;  United States          ______                                              _____________          v. GAF Corp., 389 F. Supp. 1379, 1383 (S.D. Tex. 1975).  Although             _________          other  courts have  questioned  whether the  term "waters  of the          United States" should  include groundwaters connected  to surface          waters  -- Inland Steel  Co. v. E.P.A., 901  F.2d 1419, 1422 (7th                     _________________    ______          Cir. 1990);  McClellan Ecological  Seepage v. Weinberger,  707 F.                       _____________________________    __________          Supp. 1182, 1193-94  (E.D. Cal. 1988) -- we agree  with the Corps          that since such a determination ultimately involves an ecological          judgment  about  the  relationship  between  surface  waters  and          groundwaters,  it should  be left  in the  first instance  to the          discretion  of  the EPA  and  the Corps.    Cf. United  States v.                                                      __  ______________          Riverside  Bayview   Homes,  Inc.,  474  U.S.   121,  134  (1985)          _________________________________          (deference  should be  given to  "the Corps'  ecological judgment          about  the   relationship  between  waters  and   their  adjacent          wetlands").                       We  have carefully examined  the Towns' other arguments          and conclude that they have no merit.                                         -28-          D.  Do Other Practicable Alternatives Exist Which Would Have Less              _____________________________________________________________              Adverse Effects On The Aquatic Ecosystem?              ________________________________________                    If  the  Corps had  properly conducted  the practicable          alternatives  analysis -- the Towns  claim -- it  would have been          unable to  overcome the presumption in  Section 230.10(a) because          other  alternatives which  would have less  "severe environmental          impacts"  than Walpole are available.   The Towns  point out that          (1) the MWRA  itself determined that another alternative  -- Rowe          Quarry  -- would have a less severe environmental impact than the          Walpole site and  (2) the Governor  of Massachusetts appointed  a          Commission  in  February  of  1991  which  identified  six  other          alternatives.                    In  a  draft  report   dated  October  1988,  the  MWRA          concluded that  "development  of the  Rowe Quarry  as a  landfill          would result  in minimal  environmental impacts in  comparison to          those that would  occur at the Walpole-MCI site."23   On its face          this statement  appears to raise  an issue of fact  as to whether          the decision of the Corps was arbitrary.  Nevertheless, the issue          under the practicable alternatives analysis of Section  230.10(a)          is whether the alternative site would have less adverse impact on          the aquatic ecosystem  than the Walpole site.   A finding  that a          ___ _______ _________          potential  site  such  as  Rowe  Quarry  may  have  less  adverse          environmental  effects does  not constitute  a finding  that such          site would  have less adverse  effects on the  aquatic ecosystem.          In  fact, EPA  concluded  that the  documents  used in  the  NEPA                                        ____________________          23  Draft Report on Minor Residuals Landfilling at 56.                                         -29-          review,  "establish[]  that the  insignificant  potential adverse          impacts  on  the aquatic  ecosystem at  the  Walpole site  are no          greater than those which could potentially result from a landfill          at Rowe  Quarry."24  For  example, EPA noted  that a landfill  at          Rowe  Quarry  "could potentially  cause  adverse  impacts to  the          Saugus River  and Rumney Marsh wetland system, a state designated          Area of Critical Environmental Concern."25                    The  Towns argue  that an  investigation by  the Harbor          Residuals  Landfill  Siting  Advisory Commission  identified  six          potential  alternatives to  the Walpole site,  "all of  which are          superior under the   230.10(a) standard."  Brief of Appellants at          30.  The  district court  concluded that "[t]he  Corps cannot  be          faulted  for  not  considering   the  report  of  the  Governor's          Commission, however, as the Commission was not  even in existence          until  after  the  [Record  of  Decision]  and  the  permit  were          issued."26 The  district court's conclusion finds  support in the          introduction of  the Commission's  report, where the  first point          made is that                       the   Commission's   task  has   been  to                      evaluate   alternatives  that   currently                      offer  themselves  as   options  to   the                      development  and use of the Walpole site,                      not  to  assess  the wisdom  of  the past                      selection  of that site.   Our  review of                      current alternatives can take  account of                                        ____________________          24   Letter dated  November 2,  1990 from the  Director of  EPA's          Water  Management  Division to  Lt.  Colonel  Stanley J.  Murphy,          District Engineer, U.S. Army Corps of Engineers.          25  Id. at 6.              __          26  Norfolk & Walpole, 772 F. Supp. at 688.              _________________                                         -30-                      circumstances   that   were  unknown   or                      unsettled  when  the  MWRA conducted  its                      site  selection  process and  federal and                      state   regulators   carried  out   their                      environmental reviews from 1986 to 1990.          More significantly,  the  Commission itself  recognized that  the          actual feasibility of the six potential alternative  sites it had          identified  was an  open question.27   Finally,  the Commission's          report contains no discussion  of adverse impacts on  the aquatic          ecosystem.  With respect to general environmental considerations,          the Commission's report provides a limited analysis.28                       In  sum,  the Commission's  report  is  insufficient to          raise  a  genuine   issue  of  material  fact   that  the  Corps'          determination  that  the  Walpole  site  meets  the   practicable          alternative analysis  was arbitrary,  capricious  or contrary  to          law.                                         III                                  Section 230.10(b)                                  Section 230.10(b)                                  _________________                    Section 230.10(b) provides in pertinent part:                      No discharge of  dredged or fill material                      shall be permitted if it:                                        * * *                      (3)  Jeopardizes the  continued existence                      of  species  listed   as  endangered   or                      threatened  under the  Endangered Species                                        ____________________          27  Id. at 2 ("[O]ur identification of several, possibly feasible              __          alternatives  to  the  Walpole  site  does  not  mean  that   all          uncertainties surrounding  the feasibility of  those alternatives          have been eliminated").            28   Id. at 20.   ("Certainties about environmental acceptability               __          will only  become available, however, after  further planning and          permitting activities with respect to any of the alternatives").                                         -31-                      Act of  1973, as  amended, or  results in                      likelihood of the destruction  or adverse                      modification  of  a   habitat  which   is                      determined by the  Secretary of  Interior                      or  Commerce,  as  appropriate, to  be  a                      critical  habitat  under  the  Endangered                      Species Act, as amended.          The  Towns  assert  that  the  Corps  failed   to  give  adequate          consideration under Section 230.10(b)  to impacts on the habitats          of pied-billed grebes and  great blue herons that are  located on          the  Stop River Impoundment,  which borders the  landfill site to          the  west.29   In the  Record of  Decision, the  Corps recognized          that        [t]he increased noise and activity during                      construction   and   operation   of   the                      landfill may adversely impact one  of the                      state's   largest    Great   Blue   Heron                      rookeries and several pied-billed grebes,                      a state threatened bird in the Stop River                      impoundment a quarter of a mile away.          ROD at  7.   The  Towns  argue that  the Corps  violated  Section          230.10(b)  because it  failed to  conduct an extensive  review of          these impacts to  wildlife.  We disagree.  As  the district court          recognized, Section 230.10(b) does not apply here because neither          the  pied-billed grebe  nor  the great  blue  heron are  "species          listed as  endangered or threatened under  the Endangered Species          Act of 1973."  40 C.F.R.   230.10(b).  Furthermore,  the National          Marine  Fisheries  Department  and  the U.S.  Fish  and  Wildlife          Service  -- the  federal agencies  empowered to  protect wildlife          resources --  have  indicated no  objection  to the  landfill  at          Walpole.                                        ____________________          29  Massachusetts has listed the pied-billed grebe  as endangered          and threatened  under state law.   Mass. Gen. Laws ch.  131,   4,          clause 13A; Mass. Regs. Code tit. 321,   8.01(3)(b).                                         -32-                    Notwithstanding   the   clear   language   of   Section          230.10(b), the Towns assert  that Section 230.30(a) requires that          the impact of the  landfill on the pied-billed grebe  be analyzed          under   Section  230.10(b).     Section  230.30(a)   states  that          "[l]istings  of  threatened and  endangered  species  as well  as          critical habitats are maintained by some individual States and by          the  U.S.  Fish and  Wildlife Service  of  the Department  of the          Interior."   The district  court concluded that  consideration of          impacts on wildlife, including species listed as endangered under          state law,  is properly  reviewed under Section  230.10(c), which          provides in pertinent part:                      Except   as    provided   under   section                      404(b)(2),  no  discharge  of dredged  or                      fill  material  shall be  permitted which                      will cause or  contribute to  significant                      degradation  of the waters  of the United                      States.       Findings   of   significant                      degradation   related  to   the  proposed                      discharge shall be based upon appropriate                      factual  determinations,  evaluations and                      tests required by Subparts B and G, after                                                          _____                      consideration  of  Subparts C  through F,                      ________________________________________                      with special emphasis on  the persistence                      and permanence of the effects outlined in                      those subparts.          40 C.F.R.   230.10(c)  (emphasis added).  As the  underlined part          indicates,   Section   230.10(c),   unlike   Section   230.10(b),          specifically refers to  Subpart D of the Section  404 Guidelines,          which includes Section 230.30(a).                    Furthermore, the evidence  indicates that the  landfill          would not threaten  the continued  existence of the  grebe.   The          Stop River  Impoundment is located approximately  2,000 feet from          the  boundary of  the landfill  footprint and,  according  to the                                         -33-          Towns'  consultant, only one pair  of grebes has  been sighted in          this area.   The projected  noise level of  the construction  and          operation of the landfill is expected  to be 45 decibels.  In its          Supplemental  Environmental  Impact  Statement,   EPA  reasonably          concluded that this noise impact would not threaten the existence          of the grebe.                                         -34-                      Noise levels exceeding 60  dBA [decibels]                      are  considered  loud  to  wildlife,  and                      levels   exceeding   75  dBA   may  cause                      damaging  effects (Santa  Barbara County,                      1984).  Since  noise levels are projected                      to be about 45  [decibels] at the edge of                      the  Stop  River impoundment  (2,000 feet                      from the noise source), significant noise                      impacts  would  not  occur   to  wildlife                      (including the heron  rookery) using  the                      impoundment.            DSEIS at 5-93.   Regarding  noise levels  that could  potentially          impact waterfowl and other  wildlife using adjacent wetlands, EPA          explained:                      Resident  wildlife  species  at the  site                      currently  use  the  nearby  impoundment,                      wetlands, and forested areas in  spite of                      the activities of  two local prisons  and                      an   adjacent   firing   range.     These                      activities   have  resulted   in  ambient                      noises levels up to 49 dBA at the closest                      sample  point  to  the  reservoir  (MWRA,                      RMFP,  Screen, I,  1988).   Animals using                      the site have likely become accustomed to                      such   daily   noise  levels   given  the                      extended  exposure.    Any  noise-related                      impacts that occur  at the heron  rookery                      (a resource of  special concern) could be                      mitigated   by    limiting   construction                      activity to nonbreeding  periods such  as                      fall and winter.          Id.  Finally, the district court made two findings to support its          __          determination that the Corps' conclusion that impacts on wildlife          were insignificant  "was not  unreasonable."  Norfolk  & Walpole,                                                        __________________          772 F. Supp. at 690.  First, the Towns'                       own exhibit states  that although  herons                      "tend  to  prefer  more   remote,  serene                      habitats,"  they "are  generally tolerant                      of noise and  other human  disturbances,"                      [Exh. "E"  at 7], and that  "the Heron is                      generally  more  sensitive  to noise  and                      other disturbances than the Grebe or Wood                      Duck," id. at 8.                              __                                         -35-          Id.  at 19.  Second, the district  court found that the Corps had          __          specifically considered  negative effects of the  landfill on the          grebe and the blue heron in its public  interest analysis.  Given          these findings, we  cannot say the permit decision was arbitrary.                                          IV                                  Section 230.10(c)                                  Section 230.10(c)                                  _________________                    Under 40 C.F.R.    230.10(c), the  Corps must reject  a          permit application  which proposes a discharge  "which will cause          or contribute  to significant  degradation of  the waters  of the          United States."30                      The Corps  did not specifically consider  the impact on          groundwaters as required pursuant to Section 230.10(c) because it          erroneously claimed that groundwaters effects on "municipal water          supplies"  were  not  part   of  the  "significant   degradation"          test.31   The  district court  concluded that although  the Corps          had not  properly conducted  the Section 230.10(c)  analysis, the          Corps'  findings  under  its  public   interest  review  analysis          indicated  that  the  Corps  had  properly evaluated  groundwater                                        ____________________          30  As  discussed ante,  at 24-25, groundwater  effects were  not                            ____          considered under Section 230.10(a) because that section calls for          a determination of the "adverse impact on the aquatic ecosystem."          Aquatic  ecosystem is  defined as  a water  of the  United States          "that   serve  as  habitat   for  interrelated   and  interacting          communities  and populations of plants and animals."  40 C.F.R.            230.3(c).  It is  clear that groundwater resources do  not "serve          as  habitat  for  interrelated and  interacting  communities  and          populations of plants and  animals."  See Norfolk &  Walpole, 772                                                ___ __________________          F. Supp. at 685.              31  The Corps did conclude in its  "Short Form, Section 404(b)(1)          Guidelines Compliance  Determination" that the landfill  will not          cause significant  adverse effects on  municipal water  supplies.          Norfolk & Walpole, 772 F. Supp. at 690.          _________________                                         -36-          impacts.  The district court explained:                      The  [Record  of  Decision] discusses  at                      great  length -- no subject is given more                      careful attention -- the possible effects                      of  leaks  in  the  landfill   on  nearby                      drinking  water  supplies, including  ten                      private wells near the site, larger wells                      3,500  feet  away  that  supply  drinking                      water  to  the adjacent  prisons,  a well                      supplying a hospital in the vicinity, and                      the Head of Neponset Sole-Source Aquifer.                      The [Record of  Decision] indicates  that                      the Corps evaluated  the tests  performed                      by  the EPA and the MWRA for the EIS and,                      where necessary, conducted its own tests.          Norfolk & Walpole, 772 F. Supp. at 690.  The district court noted          _________________          that the Corps  addressed each  of the Towns'  objections to  the          Corps' groundwater analysis.  Id.                                          __                    The  Towns do  not argue  that  the Corps'  findings or          conclusions regarding potential  impacts to groundwater resources          are  arbitrary, capricious  or otherwise  not in  accordance with          law.  Instead, the Towns argue that the Corps' failure to analyze          impacts  to  groundwaters  under  Section  230.10(c)  constitutes          reversible  error.   We think  this argument  elevates  form over          substance.                    Under 40 C.F.R.   230.10(c), "[f]indings of significant          degradation related to the proposed discharge shall be based upon          appropriate  factual  determinations,   evaluations,  and   tests          required  by Subpart B and  G, after consideration  of Subparts C          through F, . .  ."   The Corps' public  interest review  analysis          demonstrates that although the exact wording of Section 230.10(c)          was  neglected,  the  intent  and  purpose  of  that section  was          satisfied.  The  Corps provided a lengthy and detailed evaluation                                         -37-          of the potential impacts of the landfill on groundwater supplies.          The  Corps'  Hydraulics and  Water  Quality  Branch performed  an          independent  analysis  of  the  potential impact  on  groundwater          supplies and concluded  that "the risk to drinking water supplies          from the landfill is minor."   In sum, the Towns' challenge under          Section 230.10(c) fails.                                          V                                Public Interest Review                                Public Interest Review                                ______________________                    Under 33  C.F.R.   320.4(a),  the Corps is  required to          evaluate a permit for "the probable impacts, including cumulative          impacts, of the  proposed activity  and its intended  use on  the          public interest."    The  Towns  assert that  the  Corps'  public          interest  review was  inadequate  because the  Corps should  have          weighed the impact of the  Walpole landfill against the  ultimate          need  to clean-up  Boston Harbor.   According  to the  Towns, the          Corps should weigh  the adverse impacts  of the Walpole  landfill          against  other  sites potentially  available.    But this  narrow          interpretation of  the public interest review  is illogical since          it  asks the  Corps to  duplicate the  "practicable alternatives"          analysis of 40 C.F.R.   230.10(a).                      The Corps'  conclusion that the MWRA's proposed project          is not contrary to the public interest is reasonably supported in          the administrative  record.  Under the  "public interest" review,          the  Corps conducts a general  balancing of a  number of economic          and environmental  factors  and its  ultimate determinations  are          entitled to  substantial deference.   Environmental Coalition  of                                                ___________________________                                         -38-          Broward  County,  Inc. v.  Myers, 831  F.2d  984, 986  (11th Cir.          ______________________     _____          1987).   We must not  lose sight of the fact  that the 600 square          feet  to be  filled  has no  ecological  value and  is  isolated.          Furthermore, the  Corps  conditioned the  MWRA's application  "to          require  maintenance   of  existing  ground   and  surface  water          hydrologic   regime  which   supports  the   adjacent  wetlands."          Finally, as the district court noted:                      Considering the necessity of the landfill                      in  the  overall  clean-up  project,  the                      MWRA's history of difficulty in acquiring                      any site, . . . as compared with what the                      ___                      Corps  determined   to  be  insignificant                      effects    on   wetlands,    the   Corps'                      conclusion  that  the   project  is   not                      contrary  to  the  public   interest  was                      justified.           Norfolk & Walpole, 772 F. Supp. at 692.           _________________                                          VI                  Communications between the Department of Justice,                  Communications between the Department of Justice,                  _________________________________________________                                  EPA and the Corps                                  EPA and the Corps                                  _________________                    Between late  December 1990  and early 1991,  while the          MWRA's application for the Section  404 permit was pending, there          were  a number of communications among officials of the Corps and          attorneys  of the Department of Justice and officials of the EPA.          Based upon a request  pursuant to the Freedom of  Information Act          ("FOIA"),32  the Towns  reviewed  some  internal Corps  documents          which expressed  opposition  to the  issuance of  the permit  and                                        ____________________          32   5 U.S.C.    552.  The  Freedom of Information Act  creates a          presumption that an agency  must disclose all written information          in an  agency's  possession, unless  exempted  under one  of  the          exceptions of the Act.                                         -39-          which noted that  these communications had  occurred.  The  Towns          therefore notified the keeper of the records of the United States          Attorney for  the  District  of  Massachusetts to  appear  for  a          deposition  and  subpoenaed all  documents  concerning pre-permit          communications between the EPA, the Department of Justice and the          Corps ("defendants").   Asserting inter alia  the attorney client                                            _____ ____          and work product  privileges, the  defendants moved  to obtain  a          protective order  and quash  the subpoenas.   The Towns  maintain          that these documents should originally  have been included in the          administrative record  because they may show  that the Department          of  Justice and EPA improperly  pressured the Corps  to issue the          permit sought by MWRA.                      On May  13, 1991,  the district  court issued an  order          directing the defendants to submit the documents to the court for          in camera inspection.   The U.S. Attorney submitted 38  documents          __ ______          and  the  EPA submitted  19 documents.   Assistant  U.S. Attorney          Henderson divided the documents into four categories.  Category I          consists  of letters from the U.S. Attorney's Office to the Corps          of Engineers.   Category II consists  of notes of  communications          between   Department  of  Justice  Attorneys  or  Assistant  U.S.          Attorney Henderson and Corps of Engineers officials, most of whom          are in house  counsel for the  Corps.   Category III consists  of          internal communications among the Department of Justice attorneys          and  the U.S. Attorney's Office.  Category  IV consist of a draft          of an unsigned letter from the Corps to the MWRA dated January 4,          1991.                                          -40-                    EPA's counsel  Jeffrey T. Fowley similarly  divided the          documents  submitted by the EPA  for in camera  review into three                                               __ ______          categories.   Category I  consists of communications  between EPA          attorneys and Corps of Engineers personnel.  Category II consists          of communications  between EPA  technical personnel and  Corps of          Engineers personnel.  Category  III consists of documents created          by EPA's consultant,  Metcalf &  Eddy, Inc.   Although the  Towns          challenge  the  exclusion  of  all these  documents,  they  first          challenge the exclusion of the documents contained in Category II          and  III of  the  U.S.  Attorney's  submission  and  all  of  the          documents submitted by the EPA.                        After finding  that the  Corps personnel had  only seen          seven  of the 57 documents, the district court concluded that the          remaining  50  documents did  not  belong  in the  administrative          record  because they  were never  considered by  Corps personnel.          With  respect to the seven documents at issue, the district court          concluded that  all but two  were not properly  made part  of the          administrative  record  and  the  other two  were  shielded  from          discovery by the  attorney-client privilege.   Town of Norfolk  &                                                         __________________          Walpole  v. U.S.  Army Corps  of Engineers,  137 F.R.D.  183, 190          _______     ______________________________          (D. Mass. 1991).                       In an exhaustive opinion, the district court noted that          courts may look beyond the administrative record when there is "a          strong showing  of bad  faith or  improper  behavior before  such          inquiry may be made."  Citizens to Preserve Overton Park, Inc. v.                                 _______________________________________          Volpe,  401 U.S.  402,  420 (1971).    The district  court  judge          _____                                         -41-          concluded on the basis of his in camera review that the documents                                        __ ______          did  not  provide a  showing of  bad faith.    Town of  Norfolk &                                                         __________________          Walpole, 137 F.R.D. at 189.           _______                    The  Towns argue  that the  district court  applied the          wrong standard  (1)  in excluding  the fifty  documents that  the          Corps never  considered; (2)  in excluding  letters  by the  U.S.          Attorney's  Office  to  the  Corps;  (3) in  excluding  from  the          administrative  record two letters which comment on the merits of          the petition; and (4) in excluding a draft letter prepared by the          Corps pursuant to the deliberative privilege.  Alternatively, the          Towns claim that even if  these documents were properly excluded,          the district court erred in not permitting supplementation of the          administrative record.  For the reasons that follow, we hold that          district court  did  not abuse  its  discretion in  granting  the          protective order and the motion to quash the subpoenas.          A.  Did the District Court  Err in Excluding Documents Never Seen              _____________________________________________________________          by      the Corps?          __      _________                    The Towns argue that the test of whether information is          part of  an administrative record is whether  the information was          directly or indirectly considered by the permitting agency.  They          argue that in  concluding that all but  seven of the  fifty seven          documents  did not  belong in  the administrative  record because          these  documents were never seen by the Corps, the district court          erred  because  it  created  a rule  that  allows  administrative          agencies to avoid "judicial review of their actions by relying on          oral communications."  Brief of Appellants at 43.                                           -42-                    The  Towns seem  to  be asserting  that every  document          which  reflects an  oral communication  with a  government agency          must  be included  in  the administrative  record, even  if these          documents are not in  the possession of the agency.   The fallacy          of this  argument is obvious.   Were we to accept  it, government          agencies  would be required to  collect from all  parties who had          oral communications  with the  agency concerning the  issue under          consideration, all documents reflecting these communications with          the agency and  include them in the record.   There is no support          in  administrative law for such a requirement and its legality is          highly questionable.                    We   have  carefully   reviewed  the   remaining  fifty          documents and conclude that these documents contain no factual or          policy  information  relevant  to  the issuance  of  the  permit.          Indeed,  National Wildlife  Federation v.  Burford, 677  F. Supp.                   _____________________________     _______          1445, 1457  (D. Mont. 1985) --  cited by the Towns  in support of          this argument    -- supports  the  district court's  decision  to          exclude the documents.  In National Wildlife, the court concluded                                     _________________          that the contents of the personal files and notes of employees of          the Department of the Interior were properly not made part of the          administrative  record.   Id. at  1457.   Similarly, most  of the                                    __          submissions  by EPA and the  Justice Department consists of notes          of  the  personnel  of  these agencies  which  reflect  telephone          conversations  of no  significance.   The remaining  documents --          with a few exceptions discussed below -- consist of notes made by          various  government attorneys during  telephone conversations and                                         -43-          they  reflect  the  mental  impressions  and  opinions  of  these          attorneys.                     We therefore hold that the district court did not abuse          its discretion in excluding  these documents.  We now  review the          district court's conclusion that the seven documents  seen by the          Corps' personnel did not belong in the administrative record.                                         -44-          B.  Did the District Court Err in Excluding Seven Documents  Seen              _____________________________________________________________          by      the Corps But Not Included in the Administrative Record?          __      _______________________________________________________                    The  district  court   concluded  that  seven  of   the          documents  were   seen  by  the  Corps   and  warranted  separate          consideration.   Six of the  documents are letters  from the U.S.          Attorney's  Office to  the  Corps of  Engineers  and the  seventh          document is an unsigned draft of a letter from Colonel Phillip R.          Harris,  District  Engineer  for  the New  England  Division,  to          Richard D. Fox of the MWRA.                      The district  court concluded that the  six letters did          not  belong in  the administrative  record because  they did  not          contain  factual statements  or  made policy  recommendations and          because only two of  these letters commented on the merits of the          petition.   These  two letters  were  written by  Assistant  U.S.          Attorney Henderson and sent to Gary Pasternak, Assistant District          Counsel  for  the  Corps, and  to  Colonel  Harris, the  District          Engineer.   In  both letters,  Assistant U.S.  Attorney Henderson          expressed his opinion that  David Killoy's memorandum of December          24, 1990,  could be  withheld  from public  disclosure under  the          deliberative  process  privilege of  the  FOIA.   Assistant  U.S.          Attorney Henderson expressed his  view that the Killoy memorandum          was a deliberative document and that its analysis was "faulty."                    The  district concluded  that it  was "highly  unlikely          that the Corps of  Engineers would have relied on  this statement          in deciding the permit  question," since the letter  provided "no          legal, factual,  or policy reason for  this conclusory statement,                                         -45-          and  the statement was made  only to support  the U.S. Attorney's          position that the memoranda were 'deliberative.'"  Alternatively,          the district  court held that  these letters were  protected from          disclosure under the attorney-client privilege.                      The district  court's action  is fully supportable.   A          person asserting the attorney-client  privilege with respect to a          document provided by an  attorney has the burden of  showing four          elements:                       (1) that he was or  sought to be a client                      of   [the   attorney];   (2)  that   [the                      attorney]   in    connection   with   the                      [document]  acted as  a lawyer;  (3) that                      the    [document]   relates    to   facts                      communicated for the purpose  of securing                      a  legal  opinion,   legal  services   or                      assistance in a legal proceeding; and (4)                      that the privilege has not been waived.          United  States v. Bay  State Ambulance and  Hosp. Rental Service,          ______________    _______________________________________________          Inc., 874 F.2d 20, 27-28 (1st Cir. 1989) (citing United States v.          ____                                             _____________          Wilson, 798 F.2d 509, 512 (1st Cir. 1986)).              ______                At  the time these six letters were written -- from January          to  February of  1991 -- the  Towns had brought  several suits to          attempt  to  overturn  the  decision  to  place  the  landfill in          Walpole.  The Towns had (1) filed suit in state court challenging          the state  environmental review process;  (2) filed  a motion  to          intervene in a suit  filed by the United States seeking  an order          from the district  court to  transfer the Walpole  site from  the          Department of Corrections to  the MWRA; and (3) filed suit in the          district court challenging EPA's review of the landfill selection                                         -46-          under  the National  Environmental  Policy Act.33   Clearly,  the          Towns  had made every effort  to overturn the  decision to locate          the landfill in Walpole and  it was reasonable for the Corps  and          the U.S. Attorney  to anticipate litigation over the Corps permit          decision.  As the district court found:                      An  attorney-client  relationship  exists                      between  the Corps  of Engineers  and the                      U.S.   Attorney    in   connection   with                      anticipated  litigation.   See  28 U.S.C.                                                 ___                         516-519 (plenary authority of Attorney                      General  and  Department  of  Justice  to                      conduct  and direct  litigation involving                      the  United States or  its agencies); see                                                            ___                      also 5 U.S.C.   3106  (heads of executive                      ____                      and   military   departments   to   refer                      litigation to Justice  Department).   The                      [six]  letters  reveal   that  the   U.S.                      Attorney was  acting as a  lawyer and was                      engaged in giving the Corps  legal advice                      with  respect  to reasonably  anticipated                      litigation (that is,  the instant  case).                      All  the letters begin  with the heading,                      "ATTORNEY-CLIENT           COMMUNICATION,                      PRIVILEGED  AND CONFIDENTIAL,"  and there                      is     no    indication     that    these                      communications  were  disclosed to  third                      parties.            Id. at 190.             __                    The Corps  has  met each  of the  elements required  to          assert  the attorney-client privilege.  The Corps was a client of          the  U.S. Attorney.  The  letters were from  the U.S. Attorney to          its client  and by the content  of the letters, it  is clear that          they  "relate to facts communicated for the purpose of securing a          legal  opinion,   legal  services   or  assistance  in   a  legal          proceeding."   Bay State  Ambulance and  Hosp. Rental  Serv., 874                         _____________________________________________                                        ____________________          33  42 U.S.C.    4321 et seq.                                __ ___                                         -47-          F.2d at 28.  Finally, the Corps has not waived the privilege.                      Although  there may  be  an  unusual and  extraordinary          circumstance where a  document protected  by the  attorney-client          privilege should be  made part of the administrative record, this          is clearly not the case.            B.   Did the District  Court Err in  Excluding as  Deliberative a               ____________________________________________________________          Draft      Letter Prepared by the Corps?          _____      ____________________________                    The district court concluded  that an unsigned draft of          a letter  from Colonel Phillip  R. Harris, District  Engineer for          the  New England  Division to  Richard  D. Fox  of  the MWRA  was          protected by the deliberative process privilege.                      The   deliberative   process  privilege   protects  the          internal  deliberations of an agency  in order to prevent "injury          to  the quality of  agency decisions."  NLRB  v. Sears, Roebuck &                                                  ____     ________________          Co.,  421 U.S.  132, 151  (1975).  Two  requirements must  be met          ___          before  the  government may  properly  withhold  a document  from          disclosure.   Nadler  v. U.S.  Dept. of  Justice, 955  F.2d 1479,                        ______     _______________________          1490-91 (11th Cir. 1992).   First, the document must  be prepared          prior  to  a  final  decision  "in  order  to  assist  an  agency          decisionmaker  in arriving at his decision."  Id. at 1491 (citing                                                        __          Renegotiation Bd. v. Grumman Aircraft Eng'g Corp., 421  U.S. 168,          _________________    ____________________________          184 (1975)).  Second, the document must be "a direct  part of the          deliberative  process   in  that  it  makes   recommendations  or          expresses opinions  on legal  or policy  matters."   Id.  (citing                                                               __          Vaughn  v.  Rosen,  523  F.2d  1136,   1144  (D.C.  Cir.  1975)).          ______      _____          Furthermore, factual information that  may be segregated from the                                         -48-          rest of the document is not protected by the privilege.  5 U.S.C.            552(b);  Nadler, 955  F.2d at  1491; Hopkins  v. U.S. Dept.  of                     ______                      _______     ______________          Housing & Urban Dev., 929 F.2d 81, 85 (2d Cir. 1991).          ____________________                    The document at  issue here is an unsigned draft letter          from Colonel Harris, dated January 4, 1991, to Richard Fox of the          MWRA informing the MWRA that the Corps would not be able to issue          a  permit for  the  Walpole  landfill  "by  the  end  of  January          deadline" and setting  forth two  options to "stay  on the  court          mandated schedule"  for the Boston  Harbor cleanup project.   The          draft  letter  has  no  factual  information  and  it  reflects a          preliminary position by the Corps that was subsequently rejected.          Accordingly,  the   draft  letter  is   clearly  protected   from          disclosure by the deliberate process privilege.            C.   Did the District Court Err in Not Permitting Supplementation               ____________________________________________________________          of      the Record?          __      __________                    The  Towns  seek to  include  the 57  documents  in the          administrative record based on  the assertion that the Department          of Justice  and the EPA  secretly and improperly  "pressured" the          Corps  to  issue the  permit.   The  district court  examined the          documents in  camera and concluded  the they did  not demonstrate                    __  ______          bad  faith   or  improper   behavior  to  warrant   ordering  the          supplementation of the administrative record.                       The basis for our review  of the permit decision  here          is  the  administrative record.   Florida  Power  & Light  Co. v.                                            ____________________________          Lorion, 470 U.S. 729, 743-44 (1985); Camp v. Pitts, 411 U.S. 138,          ______                               ____    _____          142  (1973); Friends  of  the Earth,  800  F.2d at  829.   Courts                       ______________________                                         -49-          require a strong showing of bad faith or improper behavior before          ordering  the  supplementation  of  the   administrative  record.          Citizens  to Preserve Overton Park,  Inc. v. Volpe,  401 U.S. 402          _________________________________________    _____          (1971); Havasupai Tribe v.  Robertson, 943 F.2d 32, 34  (9th Cir.                  _______________     _________          1991).                        Citing D.C.  Fed'n of Civic  Ass'ns v. Volpe,  459 F.2d                           ____________________________    _____          1231, 1249 (D.C. Cir.),  cert. denied, 405 U.S. 1030  (1972), the                                   ____  ______          Towns  asserts that the  district court erred  in concluding that          there was  no improper behavior  here, particularly given  the ex                                                                         __          parte high level  discussions among  executive branch  officials.          _____          We think that the Towns' exaggerate the reach of Volpe.                                                           _____                    Volpe  does  not dilute  the  requirement  of making  a                    _____          strong  showing   of  bad  faith  or   improper  behavior  before          supplementing  the  record.   In Volpe,  a  divided panel  of the                                           _____          District  of   Columbia  Circuit  held  that   the  Secretary  of          Transportation   had  failed   to  comply   with  the   statutory          requirements and other  provisions applicable  to federal  funded          highway projects in approving construction of a bridge across the          Potomac.  The defects  in the Secretary's decision in  Volpe were                                                                 _____          colossal,  including  his failure  to  compile an  administrative          record or to  make formal findings and his approval of the bridge          project   prior  to  the  finalization   of  the  plans  for  the          bridge.34   The evidence in  Volpe also showed  that the Chairman                                       _____                                        ____________________          34     These  facts  are  in  sharp  contrasts  with  the  MWRA's          application,  which among  other  measures, spent  more than  $10          million on the site selection process and obtained  the necessary          environmental approvals from state  and federal authorities.  See                                                                        ___          United States v. Metropolitan Dist. Com'n, 930 F.2d 132, 134 (1st          _____________    ________________________                                         -50-          of  the Subcommittee  on the  District of  Columbia of  the House          Appropriations  Committee  publicly  pressured  the  Secretary by          threatening to  withhold funds  for the District's  rapid transit          system unless the bridge  project was approved.  Two  judges held          that the Secretary of  Transportation's decision would be invalid          if based  in whole or  in part on  "political pressure."   Id. at                                                                     __          1246.35                    Our  review of  the in  camera submission  supports the                                        __  ______          district court's  conclusion that  there is  no evidence  here to          suggest  that  "political  pressure"  or  any  kind  of  unseemly          influence, in  whole or in  part, affected the  Corps' permitting          process.  In this case, the Corps has presented a detailed Record          of Decision and  it is reasonably supported by the administrative          record.   It  shows that  the  Corps based  its decision  on  the          factors  relevant  to  determining   whether  the  MWRA's  permit          application complied with the  Section 404 Guidelines and whether          issuance of the permit would be in the public interest.                    The Towns claim  inter alia that "Volpe  stands for the                                     _____ ____       _____          proposition  that  if  other  litigation  [involving  the  United          States] or the Boston Harbor clean-up project" were considered by          the Corps in issuing the permit, the decision must be vacated and                                        ____________________          Cir. 1991).          35  A different  majority of two judges, however,  concluded that          the district  court had not  found that "political  pressure" had          influenced the  Secretary's  decision.   Significantly, only  one          judge in the  panel found that  the district court had  held that          "extraneous pressure"  had coerced  the Secretary to  approve the          bridge project.  Id. at 1246.                             __                                         -51-          remanded.     Although   this  interpretation   of  Volpe   seems                                                              _____          questionable, we  need not  conclusively determine  its soundness          since none of the  documents submitted for in camera  review show                                                     __ ______          any  indication of impropriety by  the United States  or that the          position of the United States in other  litigation was considered          by  the Corps  in  its permitting  process.   The Towns  have not          presented any evidence  that the  fact that  the U.S.  Attorney's          Office  represented the Corps and the EPA was a factor considered          in the permitting process.   The Justice Department has  the sole          responsibility  for representing  executive  branch  agencies  in          litigation.   The  Supreme  Court has  recognized  that the  main          purposes of centralizing litigation responsibility in the Justice          Department  is to assure that the United States should speak with          one  voice  "that  reflects  not  the  parochial interests  of  a          particular agency, but the common interests of the Government and          therefore  of  all  the people."    United  States v.  Providence                                              ______________     __________          Journal Co., 485 U.S. 693, 706 (1988).          ___________                    Finally, we have examined  the in camera submission and                                                   __ ______          conclude that adding these submissions to the record would  serve          no purpose.  The Killoy memoranda explained in sufficient details          the internal Corps opposition to the issuance of the permit.  The          Towns  have  not cited  precedent  -- nor  have we  found  any --          indicating that a district  court should allow supplementation of          an  administrative  record  with  information  which  is  already          properly documented in the administrative record.            D.  Whether the District Court Judge Erred in Denying the Towns'               ____________________________________________________________                                         -52-              Motion for His Disqualification?              _______________________________                    During the proceedings below,  the Towns moved pursuant          to  28 U.S.C.    455(a) to excuse Judge  Mazzone.  Section 455(a)          provides that a judge "shall disqualify himself in any proceeding          in which his impartiality might reasonably be questioned."  Judge          Mazzone denied the Towns' motion for his disqualification finding          no basis for it since "[t]he record in this case is lengthy, and,          as both sides point out, there  are occasions when my rulings and          orders,  or remarks from the  bench in connection  with a ruling,          have evoked disappointment from the litigants."  Memorandum Order                                                           ________________          of May 21, 1991.                    The issue of disqualification in this Circuit turns on                      whether   the   charge    of   lack    of                      impartiality  is  grounded on  facts that                      would    create   a    reasonable   doubt                      concerning the  judge's impartiality, not                      in the mind of  the judge himself or even                      necessarily  in the mind  of the litigant                      filing the motion under  28 U.S.C.   455,                      but  rather in  the mind of  a reasonable                      man.          United  States v.  Arache,  946 F.2d  129,  140 (1st  Cir.  1991)          ______________     ______          (citing  United States  v. Cowden,  545 F.2d  257, 265  (1st Cir.                   _____________     ______          1976), cert. denied, 430  U.S. 909 (1977)), cert. denied,  112 S.                 ____  ______                         ____  ______          Ct. 1507 (1992).   We review Judge Mazzone's denial of the Towns'          motion for his  recusal under the  abuse of discretion  standard.          United States v. L pez, 944 F.2d 33, 37 (1st Cir. 1991);  Camacho          _____________    _____                                    _______          v. Autoridad de Tel fonos  de Puerto Rico, 868 F.2d 482, 490 (1st             ______________________________________          Cir. 1989).                    Judge Mazzone made several  statements in the course of                                         -53-          the Boston Harbor litigation which the Towns assert would cause a          reasonable  person  to  question  his impartiality.    The  first          statement was made on July  2, 1990, when Judge Mazzone denied  a          request by the United  States for an order requiring  the MWRA to          commence  the  planning  of  an alternative  landfill  since  the          Massachusetts legislature  had decided to postpone  voting on the          transfer of Walpole  site from the  Department of Corrections  to          the MWRA until  December 5, 1990.   Instead,  Judge Mazzone chose          to  wait  until  after   the  December  5,  1990,  vote   in  the          Massachusetts  legislature.     The  judge,  however,  made   the          following comment:                      At  the same  time, I  am mindful  of the                      high risk  that  attends my  decision  to                      forego action until December 5, 1990.  At                      stake is  the credibility of  the Court's                      schedule  and the  public's faith  in the                      integrity of the entire project.   In the                      event that necessary legislation  has not                      been  approved  by  that  date  and  that                      slippage in the schedule results from the                      paralysis surrounding the siting issue, I                      will  entertain  and  intend  to  grant a                      motion for sanctions  designed to  ensure                      immediate resolution of the matter.          It is true  that Judge Mazzone's  comments, viewed in  isolation,          might require  further scrutiny.   However, given the  context in          which these comments  were made,  we conclude that  they at  most          indicate  that Judge Mazzone was irritated at the snail's pace in          which  the  Commonwealth  was  moving to  fully  comply  with the          district court's plan to  clean up Boston Harbor.  In fact, Judge          Mazzone  made the statement as a background comment to his denial                                                                     ______          of  a request by the  United States for  stricter compliance with                                         -54-          the  court's mandated  schedule.  In  this sense  Judge Mazzone's          comments -- to  the effect  that the Commonwealth  was placed  in          actual  notice that  he  would not  tolerate further  unjustified          delays -- were eminently reasonable.                     Furthermore,  the  historical  context  on  which these          comments were made  is significant.   For more  than five  years,          Judge Mazzone has overseen  and continues to oversee  the project          to  induce  the Commonwealth  and  its  agencies  to comply  with          federal law by  cleaning up Boston  Harbor.  Back in  1985, Judge          Mazzone found the Commonwealth and the MWRA liable for violations          of a permit issued under the provisions of the National Pollution          Discharge  Elimination  System.36     These  violations  continue          today.                    The second  statement which the Towns  claim amounts to          specific  behavior which  reasonably  calls  into question  Judge          Mazzone  impartiality  is found  in  an Order  entered  after the          Massachusetts legislature voted  against the transfer of  Walpole          from the Department to  the MWRA.  The legislature  voted against          the  transfer on  December 6, 1990,  and shortly  thereafter, the          United States filed a  motion before Judge Mazzone to  compel the          transfer of the Walpole site to the MWRA or for sanctions.                        On February 25, 1991,  Judge Mazzone granted the United          States'  motion  by  imposing  a  moratorium  on  any  new  sewer          connections to MWRA's system.   In response to an argument by the                                        ____________________          36   See generally United States v. Metropolitan Dist. Comm'n, 23               ___ _________ _____________    _________________________          Env't Rep. Cas. 1350 (D. Mass. 1985).                                         -55-          Commonwealth  to the effect that any action by the district court          would be premature, Judge Mazzone stated:                       First the statement  that the schedule is                      not yet in severe  jeopardy is true  only                      if  one  assumes that  the  landfill will                      ultimately  be  located  at  the  Walpole                      site.   If  I  must eventually  order the                      Commonwealth  to  effect the  transfer, I                      can  delay   doing  so  for   some  time,                      although  I  do  not  believe  that court                      action  can  wait as  long  as September,                      1992.  But if the Walpole site, for which                      much of the requisite studying, planning,                      and testing has  already been  completed,                      is not  to be  the ultimate site  for the                         ___                      landfill,  then  another  site   must  be                      selected  immediately if  there is  to be                                ___________                      any chance of  beginning construction  as                      planned.   In  fact, given  the  need  to                      complete state  and federal environmental                      impact reports  for any new  site, it may                      already be too late.   It is therefore my                      conclusion that there  is now a  real and                      imminent threat to the schedule.           While  that  statement  indicates  that Judge  Mazzone  wanted  a          landfill site to  be selected  right away, and  his concern  that          only  the Walpole  site  was sufficiently  advanced  to meet  the          court's  schedule, it does not  indicate a preference for Walpole          per  se so  long as  some other  suitable site  was expeditiously          ___  __          chosen.    These statements  simply show that  Judge Mazzone  was          weighing  the  factors to  take  into account  in  determining an          appropriate  sanction to bring  the Commonwealth  into compliance          with the scheduling  order.  Indeed, the  statement reveals Judge          Mazzone's awareness  of the distinct possibility that  at the end          of the site selection process, Walpole  might not be the site for          the landfill.                      The Towns  also claim that Judge  Mazzone prejudged the                                         -56-          issues in this case because he stated that the Walpole site  "was          exhaustively reviewed and approved  by the EPA, the MWRA  and the          Army Corps  of Engineers . .  .," a month after  the complaint in          this  case was filed and  before the defendants  had answered it.          Additionally, in  one of the regularly  issued compliance orders,          dated March 1, 1991, Judge Mazzone stated:                      I  have reviewed  the record  of decision                      attached  to  the  permit, and  note  the                      Corps finding that the siting process for                      the     Walpole-MCI     [landfill]    was                      satisfactory   under    both   NEPA   and                      404(b)(1) guidelines.          We  find  nothing here  which rises  to  the level  of partiality          needed  to compel recusal.  If  one considers that the MWRA spent          more than $10 million in the site selection process, that the EPA          closely monitored  the MWRA site  selection process and  that the          Corps issued  a extensive  Record  of Decision  supported by  the          administrative record, it seems  more than reasonable to conclude          that the site selection process was "exhaustively reviewed."  And          no  reasonable person could conclude  that merely noting that the          Corps had reached a determination under the  404 Guidelines shows          that Judge Mazzone was biased.  In short, the statements of Judge          Mazzone  which the Towns claim would cause a reasonable person to          question the  impartiality of Judge Mazzone  are statements which          in  our opinion  state  the obvious,  and  reflect common  sense.          Given  the context  in which  these remarks  were made  and their          substance,  we hold  that Towns  have failed  to show  that Judge          Mazzone committed an abuse of discretion in denying  their motion          for his disqualification.                                           -57-                    Finally, the  Towns claim that since  Judge Mazzone has          overseen  compliance with  the administration  of the  scheduling          plan  to clean up Boston Harbor, his sitting over the adversarial          aspects  of the case, including this Section 404 case, gives rise          to an appearance of partiality requiring disqualification.  Since          Judge Mazzone has required  strict compliance with the compliance          plan  --  including ordering  a  sewer moratorium  to  compel the          Legislature  to  transfer the  Walpole  site  --  and the  Towns'          challenge  to the  Section  404 permitting  process represents  a          threat to the  schedule, they contend  a reasonable person  would          question the ability of Judge Mazzone to preside over the Section          404  case.   There  is a  difference,  however, between  the real          appearance  of bias,  and  the fact  that  a judge  is  sometimes          required  to act against  the backdrop  of official  positions he          took  in other related cases.   A judge  cannot be replaced every          time  a case  presents  an issue  with  which the  judge's  prior          official decisions  and positions  may have a  connection.   This          Circuit  has made clear that  "[o]ur system of  justices does not          require that judges be  empty vessels, wholly ignorant of  all of          the antecedents of a case."  Camacho, 868 F.2d at 490.  The Towns                                       _______          have made no showing  that Judge Mazzone's actions in  the Boston          Harbor cleanup litigation  personally placed him in a position in          which  he would have been  constrained to decide  the Section 404          case in favor of  the Corps.  There were other options compatible          with continuing the  Boston Harbor  cleanup if  the Walpole  site          proved unsatisfactory.    We  are  unwilling  to  assume  that  a                                         -58-          district judge -- of  whom there is  no question whatever of  any          personal or improper interest -- would be so overcome by concerns          in the Boston  Harbor cleanup case as to unable  to render a just          and professional decision in this one.                    Judge Mazzone  carefully considered the  merits of  the          Towns'  challenge to  the  Section 404  permitting  process.   He          rejected  the Corps'  position that  groundwater effects  did not          have to be considered under 40 C.F.R.   230.10(c).  The fact that          Judge Mazzone presided  over other cases arising  from the effort          to clean up Boston  Harbor makes him arguably the  most qualified          judge to preside over this case since  his expertise in the legal          aspects of the Boston Harbor cleanup, will result in a more  just          and efficient resolution of  the issues in cases relating  to the          Boston  Harbor cleanup effort.   See,  e.g., In  Re Allied-Signal                                           ___   ____  ____________________          Inc., 891 F.2d 967,  972 (1st Cir. 1989); cert.  denied, 495 U.S.          ____                                      ____   ______          957 (1990).   While  it is  obvious that  a judge's  prior orders          might place him or her in a position that would lead a reasonable          person to  question whether he or she would remain impartial in a          subsequent proceeding,  see, e.g., United States  v. Chantal, 902                                  ___  ____  _____________     _______          F.2d  1018  (1st  Cir.   1990)  (sentencing  judge's  views  that          defendant was  an "unreconstructed drug trafficker"  might lead a          reasonable  person  to question  the  judge's  impartiality in  a          subsequent sentencing proceeding), we do not find this to be such          a case.  L pez,  944 F.2d at 37  (minimal factual basis  required                   _____          for  an  inference  of  impartiality) (citing  United  States  v.                                                         ______________          Giorgi,  840 F.2d 1022,  1036 (1st Cir.  1988).  We  add that had          ______                                         -59-          another judge been assigned to this case, he or she would plainly          not have viewed  Walpole's case  in a vacuum.   That judge  would          have learned of the Boston Harbor cleanup schedule and would have          been exposed to whatever additional concerns compliance with that          schedule imposed here.                    This   last  point  requires  us  to  further  comment.          Although parties are not  to be discouraged or castigated  in the          pursuit of  good  faith  challenges  to  the  impartiality  of  a          particular judge or  judges, neither should such  action be taken          lightly or without foundation,  merely as another tactical weapon          in  the  arsenal   of  trial  strategy.     While  we  understand          appellant's feelings, we hold that the disqualification motion in          this case was totally without a basis in fact or law.                                          VI                    In conclusion, we find  that the Corps properly applied          its Section 404(b)(1) Guidelines  and properly concluded that the          landfill was not contrary  to the public interest.   The district          court did  not abuse its  discretion in allowing  the defendants'          motion to quash the subpoena and protective order and denying the          Towns' motion for the judge's disqualification.                       Affirmed.                    ________                                         -60-
