all appropriate approvals of said plan, including approval from the Water Resources Administration of the State of Maryland; and (4) considered any comments submitted by plaintiffs and other interested parties regarding the final construction site plan, the storm water management plan and sediment and erosion control plan.
The September hearing was extended until December 1, 1986, at which time the defendant reported that it had accomplished the first three tasks outlined above. As to the fourth -- the comments by the plaintiffs and other interested parties -- the defendant reported that although plaintiffs had been sent copies of the pertinent designs, defendant had received no comments from them. Defendant represented that it was, therefore, prepared to proceed with construction of the postal facility.
Plaintiffs then, on December 11, 1986, sent the Court a document entitled, "Addendum to Pleadings by Plaintiff." In this document, plaintiffs introduced a new objection to the Moran site -- namely, "that a criminal situation exists involving the purchase of the site in question." Addendum to Pleadings by Plaintiff at 2. Plaintiffs requested an in camera conference to discuss this matter. Despite the defendant's contention that this was "a delaying tactic [by the plaintiffs] which should not be tolerated," Def. Motion for Reconsideration of December 11, 1986 Order at 2, the requested in camera conference was set for January 12, 1987.
At the hearing, the Court was presented for the first time with allegations of impropriety on the part of postal officials in the choice of the Moran site for the Potomac postal facility. Over defendant's objections, the Court stated that it would defer action in this matter until the allegations reported by plaintiffs had been fully and completely investigated. The Court also directed that the investigation of the charges be expedited and that the Court be given a status report within thirty days. In February, the defendant was given additional time to complete its investigation and report back to the Court. On March 13, 1987, the defendant reported that the investigation had been completed and fully reviewed by the U.S. Attorney's Office for the District of Columbia which found no basis for the institution of criminal proceedings. Accordingly, the case appears -- after nearly one full year -- to be ready for disposition.
II. Issues in this Action
Plaintiffs' complaint and pleadings contained numerous allegations concerning defects in the defendant's site selection procedures. At oral argument the parties agreed that the issues could be narrowed to three. Transcript of May 2, 1986 at 12-13. Two of the issues concerned application of the defendant's floodplain regulations, and a third concerned whether the defendant complied with Executive Order 12372, which requires the defendant to consult with state and local governmental agencies.
There is little doubt given the extensive record in this case that defendant has undertaken serious and painstaking consultations with state and local governmental agencies about the placement of the Potomac facility. For instance, as far back as 1978, the USPS investigated five sites for a new facility in Potomac, each of which was disapproved by the Montgomery County Planning Board ("MCPB"). The defendant then investigated four more sites, before settling on the Moran location. Throughout the period between 1980-1982, facing opposition by other community groups, the USPS investigated other locations, until a total of 27 different sites had been considered for this postal facility. Defendant's Statement of Material Facts as to Which There is No Genuine Issue ("Def. Statement of Facts") at paras. 7, 10-11.
Even the National Capital Planning Commission ("the Commission"), which ultimately disagreed with the defendant's decision to build on the Moran site, understood the efforts USPS had undertaken to consider community input and elicit community support. In a report dated August 29, 1985, the Commission's Executive Director wrote:
. . . no site within the Potomac delivery area will be satisfactory to the Postal Service, community, [Montgomery County] Planning Board and the Commission. Attempts to select a site for the new facility has and continues to be one of the most difficult and frustrating planning matters that have come before the Commission. As noted, the history of planning for a new postal facility in this area of the County began in the early 1970's. Presently, at least 27 different alternative sites . . . have been considered by the Postal Service and a majority of these have been discussed in some form with the community and the Planning Board staff. Many of these sites have also been formally submitted for review by the Planning Board and Commission.
Administrative Record ("Record"), Vol. 8 at 21.
It is clear that the decision to build on the Moran site was only made after an arduous eleven year process in which the defendant has carefully consulted with local governmental groups. The parties agree that the Executive Order requires nothing more and the plaintiffs have not persisted in this argument. Accordingly, I find that the defendant did comply with Executive Order 12372.
Therefore the sole issue remaining in the case is the floodplain dispute. This dispute boils down to an argument about how to read -- and thus how to apply -- regulations entitled, "Floodplain Management and Protection of Wetlands Procedures," 39 C.F.R. § 776, which implement Executive Order 11988. The disputed part of the regulation concerns "New Construction," 39 C.F.R. § 776.5, and reads:
(a) Restriction of Consideration of Floodplain/Wetland. During the evaluation of contending sites for a proposed project, floodplain and wetlands areas may be considered only when there is no practicable alternative site.