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Ouachita Riverkeeper, Inc. v. Bostick

United States District Court, District of Columbia

April 10, 2013

OUACHITA RIVERKEEPER, INC., et al., Plaintiffs,
v.
THOMAS P. BOSTICK, Lieutenant General, U.S. Army Chief of Engineers and Commanding General of the U.S. Army Corps of Engineers, et al., Defendants, EL DORADO WATER UTILITIES, et al., Defendant-Intervenors

Page 33

For OUACHITA RIVERKEEPER, INC., SAVE THE OUACHITA, INC., Plaintiffs: Elizabeth Livingston de Calderon, PRO HAC VICE, TULANE ENVIRONMENTAL LAW CLINIC, TULANE LAW SCHOOL, New Orleans, LA; Adam Babich, TULANE LAW SCHOOL, New Orleans, LA.

For U.S. ARMY CORPS OF ENGINEERS, THOMAS P. BOSTICK, Lieutenant General, U.S. Army Chief of Engineers and Commanding General of the U.S. Army Corps of Engineers, Defendants: Barbara M.R. Marvin, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Environment and Natural Resources Division, Washington, DC; Eileen T. McDonough, LEAD ATTORNEY, U.S. DOJ - ENVIRONMENTAL DEFENSE SECTION, Washington, DC.

For EL DORADO WATER UTILITIES, Intervenor Defendant: Alana E. Fortna, Timothy C. Wolfson, LEAD ATTORNEY, PRO HAC VICE, BABST, CALLAND, CLEMENTS & ZOMNIR, P.C., Pittsburgh, PA; Brian H. Ratcliff, LEAD ATTORNEY, SHACKLEFORD, PHILLIPS & RATCLIFF, PA, El Dorado, AR; LeAnn Madison Johnson, LEAD ATTORNEY, Albert M. Ferlo, Jr., Nidhi J. Thakar, PERKINS COIE LLP, Washington, DC.

For LION OIL COMPANY, Intervenor Defendant: Alana E. Fortna, Timothy C. Wolfson, LEAD ATTORNEY, PRO HAC VICE, BABST, CALLAND, CLEMENTS & ZOMNIR, P.C., Pittsburgh, PA; LeAnn Madison Johnson, LEAD ATTORNEY, Albert M. Ferlo, Jr., Nidhi J. Thakar, PERKINS COIE LLP, Washington, DC.

For GREAT LAKES CHEMICAL COMPANY, Intervenor Defendant: Alana E. Fortna, Timothy C. Wolfson, LEAD ATTORNEY, PRO HAC VICE, BABST, CALLAND, CLEMENTS & ZOMNIR, P.C., Pittsburgh, PA; Donald C. Bluedorn, LEAD ATTORNEY, BABST, CALLAND, CLEMENTS AND ZOMNIR, PC, Pittsburgh, PA; LeAnn Madison Johnson, LEAD ATTORNEY, Albert M. Ferlo, Jr., Nidhi J. Thakar, PERKINS COIE LLP, Washington, DC.

For EL DORADO CHEMICAL COMPANY, Intervenor Defendant: Alana E. Fortna, Timothy C. Wolfson, LEAD ATTORNEY, PRO HAC VICE, BABST, CALLAND, CLEMENTS & ZOMNIR, P.C., Pittsburgh, PA; Charles R Nestrud, Jason Earley, LEAD ATTORNEYS, CHISENHALL, NESTRUD & JULIAN, P.A., Little Rock, AR; LeAnn Madison Johnson, LEAD ATTORNEY, Albert M. Ferlo, Jr., Nidhi J. Thakar, PERKINS COIE LLP, Washington, DC.

OPINION

Page 34

COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE.

MEMORANDUM OPINION

Plaintiffs Ouachita Riverkeeper, Inc., and Save the Ouachita, Inc., (collectively " Plaintiffs" ), filed suit against Lieutenant General Thomas P. Bostick in his official capacity as the Commanding General and Chief of Engineers for the United States Army Corps of Engineers (the " Corps" ), as well as the Corps itself (collectively " Defendants" ) alleging the Corps improperly verified that the construction of a wastewater pipeline in southern Arkansas was authorized under two nationwide discharge permits issued by the Corps pursuant to the Clean Water Act. El Dorado Water Utilities, Lion Oil Co., Great Lakes Chemical Co., and El Dorado Chemical Co. (collectively " Defendant-Intervenors), each of which intend to discharge effluent through the pipeline, subsequently intervened with the Court's permission. Presently before the Court are the parties' cross-motions for summary judgment. Upon consideration of the pleadings, [1] the administrative record, and the relevant legal authorities, the Court finds the Plaintiffs have standing and their claims are not yet moot. However, the Corps did not err in finding construction of the pipeline was authorized under nationwide permits 7 and 12. Accordingly, the Plaintiff's [43] Motion for Partial Summary Judgment is DENIED, the Defendant-Intervenors' [61] Cross-Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART, and the Defendant's [63] Cross-Motion

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for Summary Judgment is GRANTED.

I. BACKGROUND

A. The Clean Water Act & Nationwide Permits

In order to restore and maintain the " chemical, physical and biological integrity" of the nation's waters, the Clean Water Act generally prohibits the discharge of any " pollutant" into the navigable waters of the United States. See 33 U.S.C. § § 1251(a)(1), 1311. The term " navigable waters" means " the waters of the United States," which by regulation includes certain wetlands. 33 U.S.C. § 1362(7); 33 C.F.R. § 328.3(a)(2), (3), (5). The Secretary of the Army, through the Corps, may issue permits authorizing the discharge of " dredged or fill material into the navigable waters at specified disposal sites." Id. § 1344(a), (d). Two types of discharge permits are relevant to this case: individual permits and nationwide permits. Individual permits require a detailed description of the proposed activity, an environmental assessment or impact statement pursuant to the National Environmental Policy Act of 1969 (" NEPA" ), and are subject to a public notice and comment period before the Corps makes a determination as to whether or not the permit should be issued. 33 C.F.R. § § 325.1, 325.2; see generally 33 C.F.R. Parts 323, 325 (setting forth policies and procedures governing review of applications for individual permits).

As an alternative to individual permits, the Secretary may issue discharge permits on a " State, regional, or nationwide basis for any category of activities involving discharges of dredged or fill material," if the Secretary determines that the activities in each category (1) are " similar in nature," (2) " will cause only minimal adverse environmental effects when performed separately," and (3) " will have only minimal cumulative adverse effect on the environment." 33 U.S.C. § 1344(e)(1); see generally 33 C.F.R. Part 330 (setting forth the policy and procedures for issuing, modifying, suspending, or revoking nationwide permits). Nationwide permits, or NWPs, are valid for a period of five years. Id. § 1344(e)(2). Before issuing a nationwide permit, the Corps conducts a " predictive environmental analysis," Defs.' Cross-Mot. at 5, of the potential adverse environmental effects of the activity at issue, prepares an environmental impact statement as required by NEPA, 42 U.S.C. § 4332(C), and conducts the impact analysis specified in Subparts C through F of the Environmental Protection Agency's Clean Water Act Section 404(b)(1) guidelines, 40 C.F.R. Part 230. A.R. 50 (2007 Decision Doc., NWP 12); see id. at 66-68 (outlining the Corps' environmental impact analysis). The Corps also conducts a " public interest review" of the factors set forth in 33 C.F.R. § 320.4(a)(1), including conservation, economics, " considerations of property ownership," and " in general, the need and welfare of the people." See A.R. 68-74. After conducting the relevant analysis, the Corps publishes a proposal to issue (or reissue, where relevant) the nationwide permit in the Federal Register. 33 C.F.R. § 330.1(b); see 71 Fed. Reg. 56,258 (Sept. 26, 2006) (Proposal to Reissue & Modify Nationwide Permits).

The Corps subsequently memorializes its analysis, including any response to public comments, in the Federal Register as well as a decision document for each nationwide permit. See generally A.R. 50-86; id. at 105-211 (2007 Reissuance of Nationwide Permits). After a nationwide permit issues (or reissues), a Division Engineer [2]

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has " discretionary authority to modify, suspend, or revoke NWP authorizations for any specific geographic area, class of activities, or class of waters within his division, including on a statewide basis, by issuing a public notice or notifying the individuals involved." 33 C.F.R. § 330.5(c)(1); see A.R. 87-104 (Suppl. to 2007 Decision Doc., NWP 12).

" In most cases, permittees may proceed with activities authorized by NWPs without notifying the [District Engineer]." 33 C.F.R. § 330.1(e)(1). However, some permits may require the permittee to submit " pre-construction notice" to the relevant District Engineer in order to verify the proposed activity may proceed under a nationwide permit. Id. § 330.1(d); A.R. 51.

The [District Engineer] will review the notification and determine if the individual and cumulative adverse environmental effects are more than minimal. If the adverse effects are more than minimal the [District Engineer] will notify the prospective permittee that an individual permit is required or that the prospective permittee may propose measures to mitigate the loss of special aquatic sites, including wetlands, to reduce the adverse impacts to minimal. The prospective permittee may elect to propose mitigation with the original notification. The [District Engineer] will consider that proposed mitigation when deciding if the impacts are minimal. The [District Engineer] shall add activity-specific conditions to ensure that the mitigation will be accomplished. If sufficient mitigation cannot be developed to reduce the adverse environmental effects to the minimal level, the [District Engineer] will not allow authorization under the NWP and will instruct the prospective permittee on procedures to seek authorization under an individual permit.

33 C.F.R. § 330.1(e)(3). The District Engineer retains the authority to modify, suspend, or revoke authorization under a nationwide permit even after issuing written verification for a specific activity. Id. § 330.5(d)(1).

In accordance with these procedures, on March 12, 2007, the Corps reissued all existing nationwide permits, including the two permits at issue here: nos. 7 and 12. See generally A.R. 105-211 (2007 Reissuance of Nationwide Permits); A.R. 1-32 (2007 Decision Doc., NWP 7); A.R. 50-86 (2007 Decision Doc., NWP 12). Subject to pre-construction notification, nationwide permit 7 " authorizes structures or work in navigable waters of the United States, as well as discharges of dredged or fill material into waters of the United States for activities related to the construction of outfall structures and associated intake structures that are in compliance with Section 402 of the Clean Water Act." A.R. 13. Nationwide permit 12 authorizes " [a]ctivities required for the construction, maintenance, repair, and removal of utility lines and associated facilities in waters of the United States, provided the activity does not result in the loss of greater than 1/2 acre of waters of the United States." A.R. 50. " Utility lines," include any pipeline " for the transportation of any gaseous, liquid, liquescent, or slurry substance, for any purpose." Id.

The 2007 Reissuance of Nationwide Permits defines " loss of waters" as: " [w]aters of the United States that are permanently

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adversely affected by filling, flooding, excavation, or drainage because of the regulated activity." A.R. 209. " Permanent adverse effects include permanent discharges of dredged or fill material that change an aquatic area to dry land, increase the bottom elevation of a waterbody, or change the use of a waterbody." Id. Pre-construction notification is required under NWP 12 if, among other things, " the activity involves mechanized land clearing in a forested wetland for the utility land right-of-way." A.R. 55. The district engineer may " condition the NWP authorization to require compensatory mitigation to offset losses of ...


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