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WEST BRANCH VALLEY FLOOD PROTECTION ASSN. v. STONE

April 15, 1993

WEST BRANCH VALLEY FLOOD PROTECTION ASSOCIATION, et al., Plaintiff,
v.
MICHAEL P.W. STONE, in his official capacity as Secretary of the Army, et. al., Defendants.



The opinion of the court was delivered by: HAROLD H. GREENE

 From the moment the decision was made to protect the City of Lock Haven from periodic bouts of flooding by constructing a series of dikes and levees, the West Branch Valley Flood Protection Association, a non-profit group in Pennsylvania ("plaintiff") has attempted to halt the project. Plaintiff alleges non-compliance by the Army Corps of Engineers and the Lock Haven Flood Protection Authority ("defendants" or "the Corps") with the provisions of the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 - 4347, the National Historic Preservation Act ("NHPA"), 16 U.S.C. § 470, the Water Resources Development Act ("WRDA"), 33 U.S.C. §§ 2201 - 2311, and Pennsylvania law, 53 Pa. Stat. § 2862. Pending before the Court are cross-motions for summary judgment. For the reasons stated below, the Court denies plaintiff's and grants defendants' motion for summary judgment.

 I.

 The Army Corps of Engineers are in the midst of building the Lock Haven Local Flood Protection Project which, when complete, will protect the City of Lock Haven from the intermittent flooding of the West Branch of the Susquehanna River and Bald Eagle Creek, Pennsylvania. As planned, the Flood Protection Project is comprised of a levee-dike approximately seven miles in length and associated recreational facilities. The levee-dike structure itself will be located in Lock Haven and Castanea Townships.

 Prior to beginning construction, the Corps proposed a series of alternative flood protection measures and evaluated the ecological, environmental, and social impacts of the different proposals on the community. The findings of this research was incorporated into a 1975 Environmental Impact Statement ("EIS") which ultimately concluded that the project should go forward. As new information was developed or received, the Corps refined both the proposed project and the EIS in accordance with the data. A more detailed design was developed and proposed in the "Phase I General Design Memorandum" and, in 1980, the Corps supplemented the environmental impact statement to reflect the impact of the project as then proposed. Again, the Corps recommended that the project proceed. In 1987, the Corps revised the levee design, and issued the "General Design Memorandum II," ("GDM II") accompanied by a further Environmental Assessment ("EA") of the project's impact on the surrounding area. One of the concerns addressed in the EA was the possibility that the original design might disturb known Superfund hazardous waste sites near Lock Haven thus causing additional contaminate releases. *fn1" The 1987 EA documented the coordinated efforts of the EPA and the Corps to insure that the levee was engineered to be compatible with the EPA remedial measures at the hazardous waste site. At that time, the Corps made a finding that the project alterations posed no significant impact to the environment. Thus, the Corps concluded that further supplementation of the environmental impact statement was unnecessary. On August 20, 1987, Congress approved construction of the project. Pub. L. 100-109, 101 Stat. 730 (1987).

 In October 1990, the Corps issued a second EA addressing the impact of levee realignment intended to avoid another hazardous waste site. The 1990 EA also addressed the potential problems posed by the contaminated soils and groundwater and incorporated a study which directly investigated those potential hazards. Again the Corps found that the realignment of the levee created no additional significant impact on the environment and therefore a supplemental environmental impact statement was unnecessary. However, the Corps did publish a Supplemental Information Document ("SID") supplementing and clarifying all previous environmental decisions. Hazardous and toxic waste ("HTW") studies previously undertaken by the Corps, the Environmental Protection Agency and consultants are referenced in the SID. Moreover, the SID details the technical reasoning underlying the proposed project.

 Pursuant to NHPA, the Corps performed eight studies of the archeological resources of the area and entered into a Memorandum of Agreement ("MOA") with the Pennsylvania Historic and Museum Commission, the Authority, and the Advisory Council on Historic Preservation in November 1988. In addition, the Corps prepared a plan to mitigate the levee's impact on local historical resources.

 Finally, as required by the WRDA, the Flood Authority obtained the consent of an adjacent township. On March 14, 1991, the Corps, the Authority, and the City of Lock Haven signed the Local Cooperation Agreement authorizing the initiation of project construction. Immediately thereafter, plaintiff initiated this suit. Pending now before the court are cross-motions for summary judgment.

 II.

 Summary judgment is appropriate if there is "no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P 56(c). "The inquiry performed is the threshold inquiry of determining whether there is a need for trial -- whether, in other words, there are any genuine issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The non-moving party is given the benefit of all favorable factual inferences. Washington-Baltimore Newspaper Guild v. Washington Post, Co., 621 F. Supp. 998, 1001 (D.D.C. 1985). At the same time, Rule 56 places a burden on the non-moving party to "go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 As stated above, this crux of the present dispute is whether the defendants have fulfilled their numerous obligations under four statutes: NEPA, NHPA, WRDA, and Pennsylvania law. Each statute is addressed in turn below.

 III

 NEPA requires federal agencies undertaking "major federal actions" which are likely to "significantly effect the human environment" to take a "hard look" at the environmental effect of the proposed project. 42 U.S.C. § 4332(C); Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21, 49 L. Ed. 2d 576, 96 S. Ct. 2718 (1976). It is undisputed that the Lock Haven project triggers the requirements of the Act. While NEPA does not mandate any particular result, it requires the agency to follow particular procedures in its decision-making process. As part of this "hard look," the Corps must first prepare an environmental assessment ("EA") to determine how great an effect the proposed action will have on the environment. If the agency makes a "finding of no significant impact," no additional studies are necessary. 40 C.F.R. § 1501.4(a)-(b), 1508.9. However, if the agency determines that the proposed action will significantly impact the surrounding environment, it must prepare an environmental impact statement ("EIS") to consider more fully the consequences of the proposed action, any adverse environmental effects, possible alternatives to the proposed action, and mitigating measures. 42 U.S.C. § 4332(C). If the agency calculates that the benefits exceed the costs, the agency may approve the project.

 After the completion of the EIS, which in the instant case was in 1975, the agency bears a continuing obligation to update its environmental evaluation in response to substantial changes to the proposed action or significant new circumstances. 40 C.F.R. § 1502.9(c)(1) (1992). The results of this later evaluation are published in a supplemental environmental impact statement ("SEIS"). Based on the findings of the SEIS, the agency must consider anew whether to proceed with the proposed project.

 It is defendants' decision not to supplement the EIS that produced the present litigation. Plaintiff argues that the 1990 EA glossed over important environmental threats and that new soil permeability data requires the Corps to reevaluate the impact of the project by publishing a new SEIS. *fn2" In particular, plaintiff cites four areas requiring additional discussion: (1) HTW contamination from groundwater seepage; (2) ponding of hazardous wastes; (3) socioeconomic impacts; and (4) evaluation of additional alternatives to the proposed system of dikes and levees.

 The defendants counter that there is no "significant new evidence" requiring a SEIS and accordingly now move for summary judgment on the grounds that they have fulfilled their NEPA obligations.

 The supplementation process is triggered when new information presents a "seriously different picture of the environmental landscape" such that another in-depth look at the environmental is necessary. Wisconsin v. Weinberger, 745 F.2d 412, 418 (7th Cir. 1984). If the agency concludes that the new data is "of exaggerated impact," supplementation is not required. Oregon Natural Resources Council v. Marsh, 490 U.S. 360, 376, 104 L. Ed. 2d 377, 109 S. Ct. 1851 (1989). As clarified by the regulations accompanying NEPA, supplementation of the EIS must occur when:

 
(i) The agency makes substantial changes in the proposed action that are relevant to environmental concerns; or
 
(ii) There are significant new circumstances or information relevant to environmental concerns and bearing on the ...

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