Crutchfield v. County of Hanover, Virginia

• Decision Date: 27 March 2003
• Docket Number: No. 02-1946.,No. 02-2153.,02-1946.,02-2153.
• Citation: 325 F.3d 211
• Parties: FRANCES BROADDUS CRUTCHFIELD; Henry Ruffin Broaddus, Plaintiffs-Appellees, v. COUNTY OF HANOVER, VIRGINIA, Defendant-Appellant, and United States Army Corps of Engineers, Defendant. Greater Richmond Partnership, Incorporated; Greater Richmond Chamber of Commerce; Hanover Business Council; Local Government Attorneys of Virginia, Incorporated; Virginia Association of Counties; Virginia Association of Municipal Wastewater Agencies, Incorporated (VAMWA), Amici Supporting Appellant. Frances Broaddus Crutchfield; Henry Ruffin Broaddus, Plaintiffs-Appellees, v. United States Army Corps of Engineers, Defendant-Appellant, and County of Hanover, Virginia, Defendant. Greater Richmond Partnership, Incorporated; Greater Richmond Chamber of Commerce; Hanover Business Council; Local Government Attorneys of Virginia, Incorporated; Virginia Association of Counties; Virginia Association of Municipal Wastewater Agencies, Incorporated (VAMWA), Amici Supporting Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

325 F.3d 211

FRANCES BROADDUS CRUTCHFIELD; Henry Ruffin Broaddus, Plaintiffs-Appellees, v. COUNTY OF HANOVER, VIRGINIA, Defendant-Appellant, and United States Army Corps of Engineers, Defendant.

Greater Richmond Partnership, Incorporated; Greater Richmond Chamber of Commerce; Hanover Business Council; Local Government Attorneys of Virginia, Incorporated; Virginia Association of Counties; Virginia Association of Municipal Wastewater Agencies, Incorporated (VAMWA), Amici Supporting Appellant.

Frances Broaddus Crutchfield; Henry Ruffin Broaddus, Plaintiffs-Appellees, v. United States Army Corps of Engineers, Defendant-Appellant, and County of Hanover, Virginia, Defendant.

Greater Richmond Partnership, Incorporated; Greater Richmond Chamber of Commerce; Hanover Business Council; Local Government Attorneys of Virginia, Incorporated; Virginia Association of Counties; Virginia Association of Municipal Wastewater Agencies, Incorporated (VAMWA), Amici Supporting Appellant.

No. 02-1946.

No. 02-2153.

United States Court of Appeals, Fourth Circuit.

Argued: January 24, 2003.

Decided: March 27, 2003.

COPYRIGHT MATERIAL OMITTED

ARGUED:

John Alan Bryson, United States Department of Justice, Washington, D.C., for Appellant Corps; William Gray Broaddus, McGuirewoods, L.L.P., Richmond, Virginia, for Appellant County. William B. Ellis, Ellis & Thorp, P.L.L.C., Richmond, Virginia, for Appellees.

BRIEFED:

Thomas L. Sansonetti, Assistant Attorney General, Paul J. McNulty, United States Attorney, M. Hannah Lauck, Assistant United States Attorney, Greer S. Goldman, John A. Sheehan, United States Department of Justice, Washington, D.C.; Katherine D. Will, Assistant District Counsel, United States Army Corps of Engineers, Norfolk, Virginia, for Appellant Corps. Stewart T. Leeth, McGuirewoods, L.L.P., Richmond, Virginia; Sterling Edward Rives, III, Barbara M. Rose, Office of The County Attorney, Hanover, Virginia, for Appellant County. Benjamin A. Thorp IV, Ellis & Thorp, P.L.L.C., Richmond, Virginia, for Appellees. Ralph L. Axselle, Jr., Walter H. Ryland, Williams Mullen, P.C., Richmond, Virginia, for Amici Curiae Greater Richmond Partnership, Inc., et al. David Neal Anthony, Kaufman & Canoles, Richmond, Virginia; Andrew R. McRoberts, Goochland County Attorney, Goochland, Virginia; Walter C. Erwin III, Lynchburg City Attorney, Lynchburg, Virginia; C. Flippo Hicks, General Counsel, VACo, Richmond, Virginia; Christopher D. Pomeroy, Aqua-Law, P.L.C., Richmond, Virginia, for Amici Curiae Local Government Attorneys, et al.

Before WILKINSON and MICHAEL, Circuit Judges, and MICHAEL, Senior United District Judge for the Western District of Virginia, sitting by designation.

Reversed by published opinion. Judge WILKINSON wrote the opinion, in which Judge MICHAEL and Senior Judge MICHAEL, joined.

OPINION

WILKINSON, Circuit Judge:

Plaintiffs Frances Crutchfield and Henry Broaddus brought suit against the United States Army Corps of Engineers and the County of Hanover, Virginia to enjoin the construction of a wastewater treatment plant and its associated sewage conveyance systems and to strike down the Army Corps' approval of those facilities. The district court upheld their challenge. Crutchfield v. United States Army Corps of Eng'rs, 214 F.Supp.2d 593 (E.D.Va. 2002). Because the Army Corps is entitled to approve an applicant's project proposal under a less stringent Nationwide Permit regime even if the applicant initially requested a type of individual permit that would have required more rigorous review, and because there was sufficient evidence to support the Army Corps' decision to approve the project, we reverse.

I.

Hanover County is located in a rapidly-growing area north of Richmond, Virginia. In an effort to manage this growth and preserve some of the rural character of the region, county government has adopted a "Smart Growth" policy that concentrates development in a limited portion of the County known as the "Suburban Service Area." However, this rapid population growth has put significant pressure on the County's wastewater treatment infrastructure.

The County currently satisfies its need for wastewater treatment by using two of its own wastewater treatment facilities to process sewage from the northern part of the Suburban Service Area, and by sending sewage from the southern part to neighboring Henrico County for treatment and discharge. The contract with Henrico County allows Hanover County to send up to 5.4 million gallons per day (mgd) of wastewater for treatment at a Henrico County facility. Because it appears that Henrico County is unwilling to satisfy Hanover County's wastewater treatment needs beyond this contractual limit, Hanover County needs to develop supplementary means of treating wastewater generated by its continuing population growth.

After evaluating various options for dealing with this challenge, Hanover County decided to build its own wastewater treatment plant. The current proposal for that plant consists of (1) a pump station and a four-mile forcemain (collectively the "Lee Davis pipeline") which would convey wastewater from the pump station to the treatment site, (2) the wastewater treatment plant itself, (3) an eight-mile forcemain which would convey treated wastewater from the plant to the Pamunkey River, and (4) a discharge structure on the river bottom.

The project would permanently affect no more than two tenths of an acre of wetlands. Plaintiffs own approximately 900 acres of farm-land adjacent to the Pamunkey River. Their land would be crossed by one of the forcemains, and the Pamunkey River discharge structure would be located adjacent to their property. They oppose the project and have filed numerous court challenges against it.

Because the project involves the placement of "dredged or fill material" in wetlands, Hanover County must get clearance from the Army Corps of Engineers before beginning construction. 33 U.S.C. § 1344(a) (2003). There are two different methods of obtaining Army Corps clearance for a project. First, the Corps can issue individual permits on a case-by-case basis. This requires a resource-intensive review that entails submission of voluminous application materials, extensive site-specific research and documentation, promulgation of public notice, opportunity for public comment, consultation with other federal agencies, and a formal analysis justifying the ultimate decision to issue or refuse the permit. See 33 C.F.R. §§ 320.4, 325.1-325.3 (2003). Alternatively, interested parties can try to fit their proposed activity within the scope of an existing general permit, which acts as a standing authorization for developers to undertake an entire category of activities deemed to create only minimal environmental impact. 33 U.S.C. § 1344(e) (2003); 33 C.F.R. §§ 320.1(c), 330.1(b)-(c) (2003).

The general permits at issue in this case are all Nationwide Permits (NWPs). Activities falling within the scope of an NWP are automatically authorized without any individualized inquiry, although preconstruction notification of the Corps is required in some cases. 33 C.F.R. § 330.1(e) (2003). In cases where preconstruction notification is required, the Corps will verify the applicability of the NWP to the proposed activity. 33 C.F.R. § 330.1(e)(2). Since NWPs are "designed to regulate with little, if any, delay or paperwork certain activities having minimal [environmental] impacts," NWP verification is much simpler than the individual permit process. 33 C.F.R. § 330.1(b) (2003). If the Corps has concerns about a proposed project, however, the Corps may exercise "discretionary authority" to restrict the otherwise automatic application of the NWP program while its concerns are addressed. 33 C.F.R. §§ 330.1(d), 330.5 (2003). The Corps' regulations also direct the Corps to review any incoming individual permit application for potential eligibility under existing NWPs, even if the application itself does not so request. 33 C.F.R. § 330.1(f) (2003).

The current proposal is Hanover County's second major effort in recent years to develop infrastructure to support its "Smart Growth" policy. Originally, Hanover County submitted a significantly different proposal to the Army Corps for the new wastewater treatment plant. That draft of the project did not include the Lee Davis pipeline. Rather, under that proposal, wastewater would have been delivered to the new plant via a 5.6-mile pipeline called the Totopotomoy Creek Interceptor. An initial review by the Army Corps concluded that the Interceptor was the only element of the project that would have more than minimal impact on wetlands. The Corps therefore issued NWP verifications for all elements of the project except for the Interceptor (i.e., the treatment plant, the discharge forcemain, and the Pamunkey River discharge structure) and began to review the Interceptor as part of a separate application for an individual permit.

Plaintiffs brought suit in federal court challenging the NWP verifications. They argued that the County was attempting to improperly segment the Interceptor from the rest of the project and thereby evade the full measure of required regulatory scrutiny. Because the Interceptor was the only way to bring wastewater to the plant for treatment, the district court agreed. It vacated the verifications, enjoined further construction of the planned infrastructure, and ordered the Corps to consider the various project elements as an integrated whole. Crutchfield v. United States Army Corps of Eng'rs, 154 F.Supp.2d 878 (E.D.Va.2001) (remanding to Army Corps for reconsideration of the wastewater treatment project as a whole); Crutchfield v. United States Army Corps of Eng'rs, 192 F.Supp.2d 444 (E.D.Va. 2001) (enjoining further construction on wastewater treatment project); Crutchfield v. United States Army Corps of Eng'rs, 175 F.Supp.2d 835 (E.D.Va.2001) (maintaining injunction against further plant construction).

After those...