Crutchfield v. U.S. Army Corps of Engineers

• Decision Date: 12 December 2001
• Docket Number: Civ. A. No. 3:00CV525.
• Citation: 175 F.Supp.2d 835
• Parties: Frances Broaddus CRUTCHFIELD and Henry Ruffin Broaddus, Plaintiffs v. UNITED STATES ARMY CORPS OF ENGINEERS and County of Hanover, Virginia, Defendants.
• Court: U.S. District Court — Eastern District of Virginia

175 F.Supp.2d 835

Frances Broaddus CRUTCHFIELD and Henry Ruffin Broaddus, Plaintiffs v. UNITED STATES ARMY CORPS OF ENGINEERS and County of Hanover, Virginia, Defendants.

Civ. A. No. 3:00CV525.

United States District Court, E.D. Virginia, Richmond Division.

December 12, 2001.

William B. Ellis, Esquire, Benjamin A. Thorp, IV, Esquire, Ellis & Thorp, PLLC, Richmond, VA, for Plaintiffs.

Sterling E. Rives, III, Esquire, Barbara M. Rose, Esquire, Yvonne S. Wellford, Esquire, County Attorney's Office, Hanover, VA, William G. Broaddus, Esquire, Robert M. Tyler, Esquire, Stewart T. Leeth, Esquire, McGuire Woods LLP, Richmond, VA, for Hanover Co.

G. Scott Williams, Esquire, United States Department of Justice, Environmental and Natural Resources Division, Environmental Defense Section, Washington, DC, Katherine D. Will, Esquire, United States Army Corps of Engineers, Norfolk District, Norfolk, VA, for U.S. Corps of Engineers.

MEMORANDUM OPINION

PAYNE, District Judge.

This case arises out of the actions taken by the County of Hanover, Virginia (the "County") and the United States Army Corps of Engineers (the "Corps") in connection with the County's attempts to meet its growing need for wastewater treatment capacity. Under the circumstances outlined fully in a Memorandum Opinion issued on August 14, 2001 (the "August 14 Opinion"), the County planned, and began construction of, a wastewater treatment project, several aspects of which required authorization (in the form of "verifications") by the Corps. For the reasons set forth in the August 14 Opinion, the verifications given by the Corps were set aside as arbitrary, capricious, and not in accordance with law.¹ See Crutchfield v. United States Army Corps of Engineers, 154 F.Supp.2d 878, 906 (E.D.Va.2001). The matter was remanded to the Corps so that it could consider "whether the entire wastewater treatment system ... [is] a "major federal action," and if so, then to fulfill the requirements of NEPA[,] implementing regulations [and NHPA and its implementing regulations.]" Id. at 904-05.

Thereafter, the parties argued, and adduced evidence respecting, whether injunctive relief was necessary pending completion of the tasks with which the August 14 Opinion charged the Corps on remand. As explained fully in a Memorandum Opinion issued on November 2, 2001 (the "Injunction Opinion"), and in perspective of both the factual record as the parties had presented it and the relevant legal principles, the Court determined that injunctive relief was appropriate. See Crutchfield v. United States Army Corps of Engineers, Civil Action No. 3:00cv525 (E.D.Va. November 2, 2001). Therefore, by order accompanying the Injunction Opinion, the County was enjoined from continuing construction on any and all aspects of its planned wastewater treatment project until such time as the Corps properly and fully discharged its statutory responsibilities.

The County timely appealed the judgments implementing the August 14 and Injunction Opinions. The County voluntarily dismissed those appeals and now has moved, pursuant to Fed.R.Civ.P. 60(b)(5) and (6), for dissolution of the injunction because, according to the County, the circumstances underlying issuance thereof have changed dramatically since November 2.

STATEMENT OF FACTS

A. General Background

The August 14 and Injunction Opinions set forth in detail the history of this litigation, including the County's need for increased wastewater treatment capacity, the role of the Corps in authorizing construction of the County's proposed wastewater treatment project (the "project"), and the circumstances necessitating the injunction that the County now asks to be dissolved. Those opinions are incorporated here in the interests of brevity and completeness. Nevertheless, it is useful briefly to outline the facts that are most salient to the County's motion to dissolve the injunction.

Many years ago, the County recognized its growing wastewater treatment needs and began to plan the project that was the subject of the August 14 and the Injunction Opinions. Those plans required construction of a project consisting of several components: a wastewater treatment plant (the "WWTP"); an interceptor pipeline generally following the route of the Totopotomoy Creek (the "TC Interceptor") which would deliver wastewater to the WWTP; a force main which would take the treated wastewater away from the WWTP to a discharge point; and an outfall/diffuser which would discharge the treated wastewater into the Pamunkey River. The project, when completed, would reduce the County's dependency on surrounding jurisdictions for wastewater treatment.² The construction and operation of the wastewater treatment project are integral to the County's ability to meet its goals under its "Comprehensive Plan," the purpose of which is to help the County manage population growth and expansion in an orderly manner. Pursuant to the Comprehensive Plan, growth and the public resources necessary to sustain that growth are systematically directed into the "Suburban Service Area" in order to preserve the rural character of the remainder of the County.³

Because construction on the proposed project implicated several federal environmental statutes and regulations, the County was required to secure appropriate permits from the federal government (in this case, from the Corps). In particular, the Corps was called upon to decide: whether and what type of permit could issue, pursuant to the CWA and related regulations;⁴ and whether to authorize the dredging and destruction of certain wetlands existing on land committed to the project. The Corps' permitting decisions involved: (1) making certain evaluations under the CWA and other environmental laws; and (2) deciding whether to require certain kinds of permits which, in turn, gave rise to the obligation to conduct additional evaluations pursuant to NEPA and NHPA.

On August 8, 2000, Plaintiffs filed a Complaint challenging the Corps' June 7, 2000 decision verifying that, under three Nationwide Permits ("NWPs"), the County could proceed with construction of the WWTP, the force main and the outfall/diffuser components of the project while the Corps considered whether to issue a different kind of permit (an "individual permit") for the TC Interceptor. Plaintiffs alleged that the Corps had violated applicable provisions of the CWA, NEPA, and NHPA. Pursuant to the APA, Plaintiffs sought a declaration that the Corps' verification of NWPs was contrary to law. They also sought injunctive relief to stop construction of the project until there was compliance with the applicable federal environmental statutes.

The August 14 Opinion discusses in detail the specific questions with which the Corps was faced when considering the County's permit application, the process by which the Corps arrived at its eventual decisions, and the parties' legal contentions respecting those decisions. The August 14 Opinion articulated, inter alia, that the Corps, at the urging of the County, had arrived at a legally erroneous and "remarkably illogical conclusion" respecting whether the WWTP, the force main, and the outfall/diffuser had "independent utility" from the TC Interceptor, a determination that allowed construction of those three components of the project to proceed under authority of NWPs while the Corps considered whether to issue an individual permit for construction of the TC Interceptor. See Crutchfield, 154 F.Supp.2d at 895-903; 33 C.F.R. § 330.6(d). A consequence of that flawed decision was that the Corps did not conduct the requisite environmental assessments of the project as a whole that otherwise would have been required under the CWA, NEPA and the NHPA. See id. at 904. Therefore, and as explained in the August 14 Opinion, the Corps' decision to verify use of the NWPs for certain aspects of the project was set aside and the matter was remanded to the Corps for further consideration in accordance with the applicable federal statutes. The County noticed its appeal from the judgment order implementing the August 14 Opinion.

Thereafter, Plaintiffs moved for entry of an injunction to prevent the County from continuing construction on any aspect of the project pending the Corps' review on remand. The purpose of that injunction, Plaintiffs argued, was to preserve the status quo. See Crutchfield v. United States Army Corps of Engineers, Civil Action No. 3:00cv525, at 23-24 (E.D.Va. November 2, 2001). Specifically, Plaintiffs sought to ensure that the Corps' decisions following remand would be made objectively and free from the pressure that necessarily would exist if continued construction and completion of the project (with the attendant expenditure of public resources) occurred before, or during, completion of the regulatory decisional process that was to ensue remand.

As discussed at length in the Injunction Opinion, decisions of the United States Court of Appeals for the Fourth Circuit, as well as other courts, have recognized the need to prevent the sort of improper influence from which Plaintiffs sought to insulate the Corps' decisional process following remand. See id. at 23-31. The County argued, in part, that Plaintiffs' concern was illusory because the only aspect of the project upon which it intended to continue construction pending the Corps' review on remand was the WWTP which, the Court found, was approximately 29% completed as of November 2. The County asserted that continued work on the WWTP would not unduly prejudice the Corps' decisions and that, in perspective of the hardships it would suffer if an injunction were to issue, equity cautioned against such relief.

The Injunction Opinion identified six factors that courts have considered in determining whether the sort of improper influence with which Plaintiffs were concerned was a legitimate threat under the facts of a given case. After reviewing the facts of record in this case as of November 2...