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Alliance to Save the Mattaponi v. United States Army Corps of Engineers

March 31, 2009

ALLIANCE TO SAVE THE MATTAPONI, ET AL., PLAINTIFFS,
v.
UNITED STATES ARMY CORPS OF ENGINEERS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge

MEMORANDUM OPINION

Plaintiffs Alliance to Save the Mattaponi ("Alliance"), Chesapeake Bay Foundation, Inc., Sierra Club, Virginia Chapter, and intervenor-plaintiffs Carl T. Lone Eagle Custalow, chief of the Mattaponi Indian Tribe ("Tribe"), and the Tribe (collectively, "plaintiffs") bring thisaction against the United States Army Corps of Engineers ("Corps"), the United States Environmental Protection Agency ("EPA"), and against Peter Green, Secretary of the Army and Robert L. Van Antwerp, Chief of Engineers and Commanding General of the Corps, in their official capacities (collectively, "defendants"). The City of Newport News, Virginia ("Newport News") also intervened as a defendant.Plaintiffs allege that the Corps acted arbitrarily and capriciously when it approved a permit sought by Newport News to build a reservoir on the Cohoke Creek and that the EPA acted arbitrarily and capriciously when it failed to veto the permit issued by the Corps. All of the parties have moved for summary judgment [##71, 72, 76, 78]. Upon consideration of the motions, the oppositions thereto, and the summary-judgment record of this case, the court concludes that plaintiffs' motions must be granted in part and denied in part and defendants' motions must be granted in part and denied in part.

I. BACKGROUND

A. Statutory and Regulatory Background

1. The Clean Water Act

The goal of the Clean Water Act is to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). To achieve this goal, the Clean Water Act generally prohibits the discharge of dredged or fill materials into waters of the United States unless authorized by a permit. Id. § 1311(a). Section 404 of the Clean Water Act authorizes the Secretary of the Army to issue permits for the discharge of dredged or fill material into waters of the United States when certain conditions are met. Id. § 1344. When it reviews a permit application, the Corps must follow binding guidelines established by the Corps and the EPA (the "Guidelines" or the "404(b) Guidelines"), which are codified at 40 C.F.R. Part 230. See 33 U.S.C. § 1344(b).

The Guidelines prohibit the permitting of projects in two instances relevant to this case. First, a permit may not be issued where 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). To be "practicable," an alternative must be "available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes." Id. § 230.10(a)(2). Second, a permit may not be issued where it "will cause or contribute to significant degradation of the waters of the United States," which includes significantly adverse effects on the "life stages of aquatic life and other wildlife dependent on aquatic ecosystems" and "loss of fish and wildlife habitat." Id. § 230.10(c).

Section 404 of the Clean Water Act also authorizes the EPA to "prohibit the specification (including the withdrawal of specification) of any defined area as a disposal site" whenever the EPA determines "that the discharge of such materials into such area will have an unacceptable adverse effect on [the aquatic environment]." 33 U.S.C. § 1344(c).

2. Public Interest Review

The Corps has promulgated a regulation which prohibits the issuance of a section 404 permit if "the district engineer determines that it would be contrary to the public interest." 33 C.F.R. § 320.4(a). This regulation requires the district engineer to weigh the benefits that reasonably may be expected to accrue from the proposal against its reasonably foreseeable detriments, considering all relevant factors. Id.

3. The National Environmental Policy Act

The purpose of the National Environmental Policy Act ("NEPA") is to "encourage productive and enjoyable harmony between man and his environment." 42 U.S.C. § 4321. To that end, NEPA requires federal agencies to prepare a detailed environmental impact statement ("EIS") for "major Federal actions significantly affecting the quality of the human environment" to inform the agency's decision whether to go forward with the action. Id. § 4332(C). Regulations promulgated by the Council on Environmental Quality state that an agency must supplement this EIS when "[t]he agency makes substantial changes in the proposed action that are relevant to environmental concerns," or "[t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts." 40 C.F.R. § 1502.9(c).

B. Factual Background

This action challenges the issuance of a permit to Newport News by the Corps under section 404 of the Clean Water Act to build a 1,526-acrereservoir on the Cohoke Creek in King William County, Virginia (the "Reservoir Project" or the "Project"). The permit was issued on November 15, 2005, but the Project has a long history.

In 1984, the Norfolk District of the Corps (the "Norfolk District") published a Water Supply Study concluding a nine-year study process and projecting that the Lower Peninsula of Virginia would need 40 million gallons per day (mgd) of additional water by 2030. Responding to that prediction, Newport News organized the Regional Raw Water Study Group ("RRWSG") in 1987 to develop a plan to meet the future need.In 1993, Newport News, on behalf of the RRWSG, submitted to the Corps and the Virginia Department of Environmental Quality an application for permits for construction of the Reservoir Project. The proposed Project consisted of a reservoir, which would be created by a dam across the Cohoke Creek thereby flooding nearby wetlands and streams. To fill the reservoir, the Project would pump water from the nearby Mattaponi River into the reservoir. The goal was to "provide a dependable, long-term water supply for the Lower Virginia Peninsula." AR 023151.

As required by NEPA, the Norfolk District published a draft EIS for the Reservoir Project in 1994, a supplement to the draft in 1995, and a final EIS in 1997. During this time, Newport News twice revised its application, moving the dam upstream and thereby reducing its wetland and stream effects. Responding to comments that the water need projection was inflated, the Norfolk District also requested the Corps' Institute for Water Resources ("IWR") to provide an independent technical review of Newport News'projected water needs. The IWR concluded that the forecasted water need was inflated by about 16 mgd, making the actual need closer to 24 mgd by 2040.

In 2001, in accordance with the Corps' procedures, the Norfolk District issued its final recommended record of decision. It recommended that the Corps deny the permit, finding that the Project would cause or contribute to significant degradation of the waters of the United States, that practicable, less damaging alternatives were available, and that the Project was not in the public interest. The EPA and the Fish and Wildlife Service ("FWS") agreed with the Norfolk District's recommended decision. The Governor of Virginia, however, objected to the proposed denial of the permit and therefore, in accordance with the Corps' procedures, the application was referred to the North Atlantic Division of the Corps ("North Atlantic Division").

In 2002, the North Atlantic Division issued an initial decision finding that there was a need for a dependable source of water and that the Reservoir Project was a practicable alternative to meet that need. It therefore resumed processing the permit application, which had been on hold following the Norfolk District's recommended decision, to address outstanding issues including how to mitigate the environmental effects on wetlands. In June 2004, Newport News submitted a wetlands mitigation plan ("Mitigation Plan"), which proposed to restore or create 806 acres of wetlands in eleven locations, and to create, enhance or preserve approximately 36.5 miles of streams.

Meanwhile, the Reservoir Project also required permits from two state agencies in Virginia, which were concerned about the effect of the Project on the American shad. In 1997, the Virginia State Water Control Board issued a Virginia Water Protection permit setting a monthly minimum in-stream flow for the Mattaponi River, which prohibits pumping when water flows are below the minimum in-stream flow unless Newport News implements emergency water conservation measures. In 2003, the Virginia Marine Resources Commission ("VMRC") denied a permit for the construction and placement of the intake structures and pipelines in the Mattaponi River because it would adversely effect the early life history stages of the shad. In 2004, however, VMRC reversed its decision and issued the permit with restrictions. To protect shad, the VMRC permit prohibits water withdrawals from the Mattaponi River for several months during shad spawning season (which is defined as extending from March 1 to July 31 of each year until Newport News can prove that a shorter pumping hiatus would equally protect the shad) except when a water emergency is declared by the President or the Governor of Virginia.

The Corps issued its final record of decision ("ROD"), at issue in this case, on July 29, 2005, and issued the permit on November 15, 2005. The Corps concluded that the Project was in the public interest and would not cause or contribute to significant degradation of the waters of the United States. Stating that the forecasted water need by 2040 was now 15.9 mgd and relying on the 1997 final EIS, the Corps concluded that the Reservoir Project, which would provide 19 mgd, was the least damaging practicable alternative. Although it has the authority to veto the Corps' issuance of a permit, the EPA did not.

The permitted Reservoir Project consists of the reservoir, which would be created by a dam across the Cohoke Creek, a water supply intake structure and station that could pump up to 75 mgd of fresh water from the nearby Mattaponi River, and a pumping station and pipeline to transfer water from the reservoir to Newport News' existing water works.The Reservoir Project would flood over 1,500 acres of land and require the excavation, fill, destruction and flooding of approximately 403 acres of freshwater wetlands and the elimination of 21 miles of free-flowing streams.Its cost is estimated to be over $200 million.Construction of the Reservoir Project cannot begin until 2010 at the earliest and the Project will not become operational until 2013 or later.In the meantime, Newport News is conducting the necessary environmental and archeological studies to satisfy the conditions of the permits issued by the Corps and Virginia and is acquiring land.

The EPA has stated that "[t]he proposed [Project], if approved, would represent the largest single permitted wetland loss in the Mid-Atlantic region in the history of the Clean Water Act Section 404 program . . . ." AR 023772. The Tribe's 150-acre reservation is on the Mattaponi River, approximately three miles downstream of the proposed intake structure, and the Tribe has depended for centuries on the Mattaponi River and its shad population. Shad are an important source of food and income, as well as a resource of cultural and religious significance, to the Tribe.

II. ANALYSIS

Plaintiffs challenge the Corps' issuance of the permit on the grounds that the determinations of the Corps that the Project was the least damaging practicable alternative, that it would not cause or contribute to significant degradation of the waters of the United States, and that it was in the public interest were arbitrary and capricious. Plaintiffs also contend that the Corps' failure to supplement the final EIS was arbitrary and capricious as was the EPA's failure to veto the permit.

A. Standard of Review

This court reviews plaintiffs' claims under the Administrative Procedure Act ("APA") because the claims challenge the final action of an administrative agency. In conducting its review, this court shall "hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in ...


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