Alabama Rivers Alliance v. Army Corps of Engineers

• Decision Date: 31 March 2009
• Docket Number: No. CV-07-BE-1609-NE.,CV-07-BE-1609-NE.
• Citation: 697 F. Supp.2d 1251
• Parties: ALABAMA RIVERS ALLIANCE, INC., et al., Plaintiffs, v. U.S. ARMY CORPS OF ENGINEERS, et al., Defendants.
• Court: U.S. District Court — Northern District of Alabama

697 F. Supp.2d 1251

ALABAMA RIVERS ALLIANCE, INC., et al., Plaintiffs, v. U.S. ARMY CORPS OF ENGINEERS, et al., Defendants.

No. CV-07-BE-1609-NE.

United States District Court, N.D. Alabama, Northeastern Division.

March 31, 2009.

David A. Ludder, Law Office of David A. Ludder PLLC, Tallahassee, FL, Mark E. Martin, Mark E. Martin LLC, Birmingham, AL, Sandra S. Nichols, Washington, DC, for Plaintiffs.

Edward Q. Ragland, U.S. Attorney's Office, Birmingham, AL, Norman L. Rave, Jr., Sara E. Costello, U.S. Department of Justice, Washington, DC, Thomas G.F. Landry, U.S. Army Corps of Engineers Office of Counsel, Mobile, AL, for Defendants.

R. Bruce Barze, Jr., James L. Noles, Jr., Jennifer Hoover Clark, Balch & Bingham, LLP, Birmingham, AL, for City of Cullman.

MEMORANDUM OPINION

KARON OWEN BOWDRE, District Judge.

This case comes before the court on "Plaintiffs' Motion for Summary Judgment" (doc. 32); "City of Cullman's Motion for Summary Judgment" (doc. 57); and "Federal Defendants' Cross-Motion for Summary Judgment" (doc. 59). Plaintiffs, Alabama Rivers Alliance, Black Warrior Riverkeeper, Friends of the Mulberry Fork River, Wild South, Nelson Brooke, James Robertson, and Paul Perret, object to the decision of the United States Army Corps of Engineers to issue a permit under § 404 of the Clean Water Act to the Cullman-Morgan Water District to construct a dam across the Duck River in Cullman County, Alabama. Defendants are Peter Geren, the Secretary of the Army; Robert L. Van Antwerp, the Chief of Engineers in the Department of the Army; Peter F. Taylor, the District Engineer and District Commander for the Mobile District of the Corps of Engineers; and the United States Army Corps of Engineers (Corps). The City of Cullman and the Utilities Board of the City of Cullman are intervenors. The parties have fully briefed all the motions for summary judgment.

For the reasons stated below, the court finds that the Plaintiffs' motion (doc. 32) is due to be DENIED, the City of Cullman's motion (doc. 57) is due to be GRANTED, and the Federal Defendants' motion (doc. 59) is due to be GRANTED.

The court determined in a prior incantation of this case that the Corps had not taken the requisite "hard look" at several considerations in issuing the original permit and FONSI. Am. Canoe Ass'n v. White, 277 F.Supp.2d 1244 (N.D.Ala.2003). Based on that determination, the court remanded the case to the Corps so that the Corps could take the requisite hard look. Following the remand, the Corps conducted further analysis and ultimately decided to issue another FONSI and permit. The court concludes that the Defendants in the present case are entitled to judgment as a matter of law because the Corps' decision was not arbitrary and capricious and because the Corps took a hard look at the issues discussed below. A separate order to that effect will be entered simultaneously.

INTRODUCTION

Plaintiffs brought this action pursuant to the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332(2), and the Clean Water Act (CWA), 33 U.S.C. § 1344(b)(1). Plaintiffs argue that the Corps' Finding of No Significant Impact (FONSI), the Corps' resulting decision not to prepare an environmental impact statement (EIS), and the Corps' ultimate decision to issue the permit were arbitrary and capricious. Plaintiffs also assert that the Corps' environmental assessment is inadequate, arbitrary, and capricious, and that the Corps failed to consider all appropriate alternatives.

Plaintiffs ask this court to find that the Corps' decision to issue a FONSI and not to prepare an environmental impact statement was arbitrary and capricious and not in accordance with 42 U.S.C. § 4332(2)(C). Plaintiffs also ask this court to find that the Corps failed to properly consider alternatives, specifically the option of protecting the existing water source from contamination, in violation of 40 C.F.R. § 1508.9 and 42 U.S.C. § 4332(2)(E). Plaintiffs urge the court to find that the Corps' determination that the discharge of fill material into the Duck River to create the dam complies with guidelines published under 33 U.S.C. § 1344(b)(1) was arbitrary and capricious. Plaintiffs further urge the court to declare that the Corps' failure to supplement the original environmental assessment with a discussion of the reduction in the growth of water demand, reduction in population growth, reduction in poultry production, and increase in water supply was arbitrary and capricious. Plaintiffs ask the court to declare that the Corps' determination that a 3,300 pounds per year reduction in Total Phosphorous (TP) load at the proposed Duck River reservoir is possible was arbitrary and capricious.

Plaintiffs, in essence, ask the court to declare that the Corps issued a permit for the Duck River dam in violation of NEPA and the CWA and to vacate that permit. They also ask the court to enjoin the Corps from allowing the Duck River Project to proceed until the Corps prepares an environmental impact statement or adequately supplements the environmental assessment.

The parties have fully briefed the issues raised in the cross motions for summary judgment. The issue before the court, essentially, is whether the Corps' decision to issue a FONSI based upon the allegedly inadequate supplemental environmental assessment conducted in 2006, and the resulting issuance of a permit to build the dam, was arbitrary and capricious. Upon due consideration and for the reasons stated below, the court answers this question in the negative.

FACTS¹

I. Background

Cullman County is located in north central Alabama approximately 50 miles north of Birmingham, Alabama's largest city, and approximately 50 miles south of Huntsville. Cullman County covers a land area of 743 square miles and features 11 incorporated municipalities. Little groundwater exists in the area, so local water systems utilize a surface supply that is interconnected over a large area. These systems now serve a large population in Cullman County and portions of five adjoining counties.

In March 1996, the Cullman-Morgan Water District (CMWD) and City of Cullman applied to the Corps for a permit under CWA § 404, 33 U.S.C. § 1344, for the purpose of constructing a dam on the Duck River to impound a reservoir. Section 404 of the CWA requires the Corps to issue a permit for "the discharge of dredged or fill material" into navigable waters; thus, a § 404 permit is a prerequisite to the building of any dam. The Corps completed an environmental assessment (EA) pursuant to NEPA in October 1999 (1999 EA) and an evaluation of compliance with guidelines published under CWA § 404(b)(1) in January 2000. The Corps determined in the 1999 EA, based on two studies conducted in 1994 and 1995, that a water supply was needed to meet the projected water supply needs of the CMWD and to serve as an emergency source in the event the current water source became contaminated. The 1999 EA considered twenty-one alternatives to the creation of a dam on the Duck River for the purpose of increasing water supply. Ultimately, the Corps determined that no practicable alternatives to alleviating the water supply problem would have a less adverse impact on the aquatic ecosystem than the damming of Duck River. The Corps determined that the proposed project did not constitute a major federal action significantly affecting the quality of the human environment and that it complied with the § 404(b)(1) guidelines. On February 1, 2000, the Corps issued Permit No. AL96-00912-U (2000 Permit) to the CMWD and the City of Cullman authorizing the construction of the Duck River dam.

Following the issuance of the original 2000 Permit, several environmental groups, including the American Canoe Association and the Alabama Rivers Alliance, filed suit for declaratory and injunctive relief to vacate the permit. On August 15, 2003, this court vacated the permit and remanded the matter to the Corps, concluding that the Corps did not take a "hard look"² at the cumulative effects of other proposed projects on the Black Warrior River Basin, the future water quality of the proposed reservoir, and the downstream effects of the proposed dam on the Mulberry Fork of the Black Warrior River. This court directed the Corps to take a hard look at those issues, reconsider its decision, and determine whether an Environmental Impact Statement (EIS) was required for the Duck River project.

In June 2005, the Corps published a Draft Supplemental Environmental Assessment (2005 DSEA) for the proposed Duck River dam and reservoir project and allowed for a 60-day period of public comment on the project. The City of Cullman and the Corps consulted with CH2MHill, an environmental and engineering consulting firm, to determine ways to thoroughly improve the water quality analysis for the supplemental environmental assessment. During the public comment period, the City of Cullman provided a detailed letter expressing the continued need for the project.

On August 24, 2006, the Corps issued an Environmental Assessment Summary, 404(b)(1) Analysis, Statement of Findings, and Decision Document (2006 DD), which took into account the analysis from both the original environmental assessment, the supplemental environmental assessment, and the public comments. The 2006 DD concluded that the proposed Duck River project did not constitute a major federal action significantly affecting the quality of the human environment, did not require the preparation of an EIS, and complied with the § 404(b)(1) guidelines. On November 9, 2006, the Corps issued Permit No. SAM-2006-00912-U to the CMWD and the City of Cullman authorizing the construction of the Duck River dam. In September 2007, the Plaintiffs filed this suit seeking declaratory and injunctive relief from the November 2006 Permit.

II. Effects of Duck River Dam

The proposed Duck River dam will permanently obstruct the river with a 135-foot high and 1,925-foot long rock...