Crutchfield v. U.S. Army Corps. of Engineers

• Decision Date: 31 October 2002
• Docket Number: No. CIV.A. 3:02CV594.,CIV.A. 3:02CV594.
• Citation: 230 F.Supp.2d 687
• Parties: Frances Broaddus CRUTCHFIELD and Henry Ruffin Broaddus, Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS and the Hanover Group, L.L.C., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

230 F.Supp.2d 687

Frances Broaddus CRUTCHFIELD and Henry Ruffin Broaddus, Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS and the Hanover Group, L.L.C., Defendants.

No. CIV.A. 3:02CV594.

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

October 31, 2002.

COPYRIGHT MATERIAL OMITTED

William B. Ellis, Esquire, Benjamin A. Thorp, III, Esquire, Ellis & Thorp, Richmond, for Plaintiffs.

M. Hannah Lauck, Esquire, United States Attorney's Office, Richmond, for Corps.

James C. Roberts, Esquire, Bradfute W. Davenport, Jr., Esquire, George A. Somerville, Esquire, Troutman Sanders, LLP, Richmond, for The Hanover Group.

MEMORANDUM OPINION

PAYNE, District Judge.

In this action, Frances Broaddus Crutchfield and Henry Ruffin Broaddus ("Crutchfield" or the "Plaintiffs") seek an order invalidating a permit issued under the Clean Water Act, 33 U.S.C. § 1251, et seq. by the United States Army Corps of Engineers ("the Corps") to The Hanover Group, L.L.C. ("THG") on April 30, 2002. The permit at issue allows, with conditions, THG to build a sewer line (the "Academy Creek Trunk Sewer" or "AC Sewer") from the Bluffs at Bell Creek, a project being developed by THG in Hanover County, Virginia (the "Bell Creek Project"), to the so-called Shelton Point Pump Station ("SPPS"), a part of the existing sewage system operated by Hanover County, Virginia (the "County"). Pursuant to Fed. R.Civ.P. 12(b)(1), THG has moved to dismiss the action on the ground that the Plaintiffs lack standing and that, therefore, the Court lacks subject jurisdiction.¹ THG also has moved for summary judgment under Fed.R.Civ.P. 56 on the ground that the Plaintiffs are in laches. For the reasons set forth below, because Plaintiffs lack standing, the motion to dismiss this action is granted. The motion for summary judgment predicated on the assertion that the Plaintiffs are in laches is denied as moot.

BACKGROUND

This action is best understood if viewed in the context of two separate actions brought by the Plaintiffs against the Corps and the County. Each of those separate actions, one of which is final and one of which is pending, focuses on the legality of permits issued by the Corps for a wastewater treatment project being pursued by the County. Hence, it is appropriate to explain briefly those actions.

As originally planned, the County's wastewater treatment project consisted of several components: (1) a wastewater treatment plant (the "WWTP"); (2) a sewage interceptor pipeline (the "TC Interceptor") for collecting sewage and transporting it to the WWTP; (3) a forcemain for transporting the treated sewage from the WWTP to the Pamunkey River at a point where the river is adjacent to Newcastle Farm, an historic property that the Plaintiffs' family has owned for six generations; and (4) an outfall/diffuser, the purpose of which is to distribute the effluent from the WWTP into the Pamunkey River adjacent to Newcastle Farm. The purpose of the project is to meet the County's growing wastewater treatment needs and to reduce the County's current dependence for sewage treatment on the wastewater treatment facilities of neighboring Henrico County, with whom the County has a contract under which the County is entitled to use 5.4 million gallons per day of Henrico County's sewage treatment capacity.

Over the Plaintiffs' objections, the Corps issued so-called Nationwide permits ("NWPs") which permitted the County to build the WWTP, the forcemain and the outfall/diffuser. While the Corps was considering whether the County could rely on the NWPs for those three components, it was considering separately a so-called individual permit for the TC Interceptor. For reasons set forth fully in Crutchfield v. United States Army Corps of Engineers, 154 F.Supp.2d 878 (E.D.Va.2001) ("Crutchfield I"),² the Corps' decision to authorize use of NWPs for three out of four segments of an integrated project and to require an individual permit application only for the fourth component (the TC Interceptor) was set aside as arbitrary, capricious and not otherwise in accordance with law. As explained fully in Crutchfield I, authorization to use an NWP requires a less rigorous environmental review than does the issuance of individual permits. Id. at 893-94.

The matter was remanded to the Corps for further consideration. Throughout the pendency of Crutchfield I, the County continued to construct parts of the project. Thus, by the time Crutchfield I was decided on August 14, 2001, the forcemain was largely completed and much work had been completed on the WWTP. No work had been done on the outfall/diffuser or on the TC Interceptor. For the reasons outlined in Crutchfield v. United States Army Corps of Engineers, 192 F.Supp.2d 444 (E.D.Va.2001) (the "November 2 Injunction Opinion"), the County was enjoined from further construction on the project pending reassessment by the Corps of the permitting issues on remand.³

Beginning in late 1998 or early 1999, THG began planning development of the multi-use Bell Creek Project located on 449 acres in Hanover County. Plans for the Bell Creek Project called for 535 residential lots, a 157 acre business park, 20 acres of retail space and a 124 acre historical park. The plans for the Bell Creek Project include the AC Sewer which runs some 9,800 feet from the northwest corner of the project's commercial property to the SPPS. Approximately 2,200 feet of the 9,800 foot long AC Sewer is to be built by THG along the sewage easement originally designated for the previously proposed TC Interceptor. The sewage easement is owned by the County. At its beginning point, the AC Sewer will be twelve inches in diameter increasing in size along its length until the diameter reaches thirty inches beginning at the 2,200 foot segment located in the easement formerly dedicated to the TC Interceptor and continuing at that diameter until the AC Sewer meets the SPPS.

Sewage from the Bell Creek Project will travel the AC Sewer to the SPPS and then to another County pumping station, the Beaverdam Pump Station, from which it will be pumped to a sewage treatment facility owned by Henrico County for treatment pursuant to the contract between Henrico County and the County. However, if the County's project receives the necessary permits from the Corps and the County's wastewater treatment project is brought into operation, sewage from the Bell Creek Project will be rerouted and sent to the WWTP for treatment and then will be discharged into the Pamunkey River adjacent to Newcastle Farm. Crutchfield v. United States Army Corps of Engineers, et al., 214 F.Supp.2d 593, 633 (E.D.Va.2002) ("Crutchfield II" or the "August 7 Opinion").

Pursuant to an agreement it made with the County in November 2000, THG was obliged to build the 2,200 foot segment of the sewer main to the SPPS if the TC Interceptor, for any reason, was not built by the County. In that event, THG would be entitled to oversize credits to the extent that the diameter of the AC Sewer exceeded the size sewer main that was required to service the Bell Creek Project.⁴ It is undisputed that the capacity of the AC Sewer is greater than necessary to serve the Bell Creek Project and that the County will be obligated to extend oversize credits to THG in compensation for building a larger sewer.

The decision in Crutchfield I, particularly the November 2 Injunction Opinion, made it unlikely that the TC Interceptor, as originally proposed, would be available for connection to the AC Sewer when sewage collection and transport was expected to be needed for the Bell Creek Project. Therefore, after the November 2 Injunction Opinion, THG began to consider how it would build the 2,200 foot segment by which the AC Sewer would connect to the SPPS. Under circumstances and for reasons that are in dispute, THG met with the County and the Corps in November 2001. At about the same time, THG withdrew an application it had made to the Corps for an eight inch sewer to serve part of the Bell Creek Project. The parties dispute the motivation for, and the effect of, the decision to withdraw that application.

On November 16, 2001, the County submitted to the Corps a revised joint permit application in which it sought authorization to construct the WWTP, the forcemain and the outfall/diffuser (as those components of the project originally had been designed). However, the revised application no longer sought to use the TC Interceptor as the means through which raw sewage would be conveyed to the WWTP. Instead, the County proposed to construct as the fourth component of the project, the Lee Davis Pump Station and forcemain which would connect with the SPPS and would take sewage through the forcemain and deliver it to the WWTP for treatment. In other words, the revised project proposed to replace the TC Interceptor with the Lee Davis Pump Station and forcemain. At the same time, the County represented that it had abandoned any plans to construct the TC Interceptor in the foreseeable future, and it formally withdrew the permit application for that component of the original project.

As the Corps represented to the Court and the Plaintiffs in Crutchfield I, the Corps initially treated the revised permit filed by the County on November 16, 2001 as an application for an individual permit. Notwithstanding that the Corps had represented to the Court, the Plaintiffs, and the public that it would consider the application for the revised project under the individual permit regime, the Corps, soon thereafter, decided that it would likely accord the project verification under the NWP program. In fact, the Corps was all but committed to that course before it issued a public notice calling for comments on the County's application for an individual permit, although the Corps failed to disclose this intent to the public. Predictably, the resulting public comment did not even address the issues surrounding possible authorization under the NWPs that...