City of Alma v. US

• Decision Date: 24 August 1990
• Docket Number: CV582-98.,No. CV589-51,CV589-51
• Citation: 744 F. Supp. 1546
• Parties: CITY OF ALMA and Bacon County, Georgia, Plaintiffs, v. The UNITED STATES of America and The United States Environmental Protection Agency, Defendants. NATIONAL WILDLIFE FEDERATION, et al., Plaintiffs, v. John O. MARSH, et al., Defendants.
• Court: U.S. District Court — Southern District of Georgia

744 F. Supp. 1546

CITY OF ALMA and Bacon County, Georgia, Plaintiffs, v. The UNITED STATES of America and The United States Environmental Protection Agency, Defendants.

NATIONAL WILDLIFE FEDERATION, et al., Plaintiffs, v. John O. MARSH, et al., Defendants.

Nos. CV589-51, CV582-98.

United States District Court, S.D. Georgia, Waycross Division.

August 24, 1990.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

J. Jimmy Boatright, M. Theodore Solomon, II, Solomon & Edgar, Alma, Ga., James S. Stokes, Sydney S. Cleland, Robert D. Mowrey, Alston & Bird, Atlanta, Ga., for plaintiffs.

W. Christian Schumann, U.S. Dept. of Justice, Land and Natural Resources Div., Environmental Defense Section, Washington, D.C., Henry L. Whisenhunt, Jr., Augusta, Ga., Ruth Bell, Catherine Winer, Water Div., U.S. Environmental Protection Agency, Washington, D.C., Edwin R. Schwartz, Asst. Regional Counsel, U.S. Environmental Protection Agency, Atlanta, Ga., for defendants.

ORDER

EDENFIELD, Chief Judge.

The case before the Court represents the culmination of nearly two decades of struggle on the part of the officials of Alma, Georgia, the plaintiffs in this action, to build a recreational lake, aptly named Lake Alma, in Bacon County. Almost since its inception, the project has been opposed by environmental groups, certain citizens, and a few federal agencies, particularly the Environmental Protection Agency ("EPA" or "the Agency"), one of the defendants here. The plaintiffs have hurdled numerous bureaucratic obstacles and endured four separate lawsuits in their effort to build the lake. In the action currently before the Court, the plaintiffs ask the Court to set aside yet another administrative roadblock: the decision of the EPA to restrict designation of the project area as a discharge site for dredged or fill material under section 404(c) of the Clean Water Act, an action which effectively prohibits construction of Lake Alma. City officials claim that the lake will be a boon to the area; the EPA dubs it a boondoggle. Now, the Court must decide, on cross-motions for summary judgment, which characterization is more accurate.

BACKGROUND

I. The Early Years

In 1968, the Department of Housing and Urban Development ("HUD") selected the city of Alma, Georgia to receive funds under the Model Cities Program. To use these funds effectively, city officials formulated a development plan consisting of four projects: 1) the improvement of Alma's industrial park, 2) the upgrade of water and sewage treatment facilities, 3) improvement of the airport, and 4) construction of a recreational lake to be named Lake Alma. Alma secured funding for the first three projects and eventually completed them.

In 1971, HUD funded a study to determine whether the construction of Lake Alma was feasible.¹ HUD's action prompted several Alma residents to commence a lawsuit the following year, asking that HUD be required to prepare an Environmental Impact Statement ("EIS") concerning the effects of the lake. See Deen v. Lynn, CV No. 861 (S.D.Ga. Sept. 20, 1973). The litigation eventually settled after HUD agreed to provide the EIS. HUD issued a draft in 1974, but it engendered much criticism and was subsequently withdrawn. Alma then assumed responsibility for preparing the impact statement.

Alma submitted the EIS in March 1977, and the EPA and the United States Fish & Wildlife Service ("FWS") objected to the lake on environmental grounds. Other opponents of the project brought suit to block HUD's release of funds for construction of the lake. See Hurricane Protective Soc'y v. Bacon County, CV No. 577-16 (S.D.Ga. March 25, 1977). On August 10, 1977, HUD decided to withhold the funds. The parties to the action subsequently agreed to stay the proceedings while Alma officials sought a permit from the United States Army Corps of Engineers ("the Corps") under section 404 of the Clean Water Act, 33 U.S.C. § 1344 (1988).² This case was dismissed in 1980 for want of prosecution.

Alma officials applied for a section 404 permit on August 31, 1977. The Corps' District Engineer recommended denial of the permit and referred the case to the Division Engineer. After an evaluation of the project site, the Division Engineer asked the District Engineer to reassess the permit application. The EPA Regional Administrator recommended that the permit be denied because the project did not conform with the EPA's section 404(b)(1) guidelines,³ or with the EPA's wetlands policy, and because it would have an adverse impact on water quality. The FWS also recommended denial of the permit, based primarily on the proposed lake's adverse effect on wildlife values.

In 1978, the FWS initiated a study to determine what mitigation would be necessary to offset the habitat losses resulting from construction of Lake Alma. The agency concluded that an estimated 7,246 acres of wooded swamp would have to be managed intensively to compensate for the total net wildlife loss incurred.⁴ Noting that complete compensation was impractical, the FWS formulated a mitigation plan. The plan required the construction of 194 acres of greentree reservoirs ("GTRs") which would be managed primarily for waterfowl. The GTRs, 14 discrete impoundments, would be allowed to fill with water and would be drawn down annually. An emergency access road was to be constructed and managed for wildlife diversity with grain crops planted on the right-of-way. In addition, the plan called for the selective clearing of 466 acres of wooded swamp and pine areas by prescribed burning and cutting of trees. The fields, pastures, and rights-of-way would undergo staged disking, seeding, and mowing. According to the FWS, implementation of this plan would provide the "minimum acceptable level of compensation" for the wildlife habitat lost as a result of the lake.

Conditioned upon the employment of its mitigation plan, the FWS withdrew its objections to the project. The following year, the Corps' District Engineer recommended approval of the section 404 permit if the city implemented the mitigation plan. The Division Engineer concurred, and the Corps notified the EPA of its intention to issue the permit. The EPA requested that the permit be elevated to the department level for review, citing concerns that the mitigation plan did not adequately compensate for the loss of wetlands, that the GTRs would have an adverse impact on water quality, and that the GTRs themselves might require section 404 permits. The President's Council on Environmental Quality ("CEQ") voiced its opposition to the mitigation plan as well, stating that the plan calls for the destruction of 200 acres of wetlands in addition to those destroyed by the construction of the lake. The CEQ also noted that the mitigation primarily benefits one species, wood ducks, of particular interest to hunters, and fails to provide appropriate mitigation for the loss of aquatic life associated with the elimination of wetland vegetation.

Pursuant to the EPA's request for elevated review, the highest levels of the Department of the Army ordered that water quality studies be conducted at the project site. After considering the studies, the Assistant Secretary of the Army decided that the permit for Lake Alma should issue. In a letter dated October 9, 1981, EPA Administrator Anne M. Gorsuch responded:

The EPA staff has studied your report and agrees with the conclusion of the Army Corps that the released waters from the nearby greentree reservoirs that will flow into the proposed Lake Alma are not expected to adversely affect its water quality. This report, together with the results of previous analysis, satisfactorily answers the questions of the EPA and we conclude that the modified project will conform with the applicable federal environmental statutes and regulations.

On November 10, 1981, the Corps issued the permit for construction of Lake Alma. The permit stipulated the development of the FWS mitigation plan as a condition of issuance. HUD subsequently decided to release the funds for the construction of the lake, provided certain conditions were met.⁵

II. The 1983 Litigation

Several opponents of the Lake Alma project — the National Wildlife Federation, the Georgia Wildlife Federation, and the Hurricane Creek Protective Society, specifically⁶ — sued to enjoin HUD's release of funds. See National Wildlife Federation v. Marsh, CV No. 582-98 (S.D.Ga. Dec. 3, 1982). They specified a number of grounds for the injunction; only two of their contentions are relevant in the instant case, however. First, the project opponents claimed that Alma city officials or the Corps should have prepared a Supplemental Environmental Impact Statement ("SEIS") before the section 404 permit for the lake was issued or the funds released. According to the petitioners, the Corps' decision to forego preparation of a SEIS was unreasonable because the project had been modified since the submission of the EIS in 1977 by the adoption of the mitigation plan, and these modifications would have a significant environmental impact. Second, they contended that the Corps acted unlawfully by issuing a permit for the lake without first determining whether additional permits would be necessary for the GTRs, and, if the additional permits were needed, by issuing the lake permit without first issuing the permits for the mitigation plan.

The district court refused to grant the injunction, Court Order, CV No. 582-98, dated March 3, 1983, and the petitioners appealed. Before the Eleventh Circuit and in the district court, the government argued that the Corps had acted lawfully. As to the SEIS issue, the government contended that the environmental impacts of the GTRs were no different, quantitatively or qualitatively, from the effects of the Lake Alma project as a whole; thus, a supplemental statement was unnecessary. In support of this contention, the government emphasized the EPA's conclusion that the GTRs would not adversely...