Crutchfield v. U.S. Army Corps of Engineers

• Decision Date: 14 August 2001
• Docket Number: No. Civ.A. 300CV525.,Civ.A. 300CV525.
• Citation: 154 F.Supp.2d 878
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Frances Broaddus CRUTCHFIELD and Henry Ruffin Broaddus, Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS and County of Hanover, Virginia, Defendants.

154 F.Supp.2d 878

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

No. Civ.A. 300CV525.

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

August 14, 2001.

COPYRIGHT MATERIAL OMITTED

William B. Ellis, Ellis & Thorp, Richmond, VA, for Plaintiffs.

M. Hannah Lauck, United States Attorneys Office, Richmond, VA, Gregory S. Williams, U.S. Department of Justice, Environmental Defense, Richmond, VA, Katherine D. Will, U.S. Army Corps of Engineers, Norfolk, VA, for U.S. Army Corps.

Sterling E. Rives, III, Hanover County Attorney's Office, Hanover, VA, William G. Broaddus, Robert M. Tyler, McGuire Woods LLP, Richmond, VA, for Hanover Co.

MEMORANDUM OPINION

PAYNE, District Judge.

In this action, Frances Broaddus Crutchfield and Henry Ruffin Broaddus challenge the authorization, under the Clean Water Act ("CWA"), by the United States Army Corps of Engineers ("the Corps") of Nationwide Permits ("NWPs") for the County of Hanover ("the County"). The NWPs verify the construction, without preparation of an Environmental Assessment or an Environmental Impact Statement as required by the National Environmental Policy Act ("NEPA"), of a wastewater treatment plant ("WWTP"), discharge force main, and an outfall¹ by the County. It is also alleged that the NWPs were unlawfully verified because the Corps did not first comply with the National Historic Preservation Act ("NHPA"). The challenges center around the relationship of the WWTP, force main and outfall components of a sewage treatment project to a sewer interceptor that is proposed to transport sewage to the WWTP and that, until recently, was referred to as a component of that sewage treatment project.²

Crutchfield and Broaddus challenge the NWPs under three substantive statutes and the Administrative Procedure Act ("APA"). Claim 1 alleges that the verification of the NWPs for the WWTP, force main, and outfall by the Corps violates the CWA, 33 U.S.C. §§ 1251 et seq., and the Corps' regulations, 33 C.F.R. § 325.1 and 33 C.F.R. § 330.6. Claim 2 alleges that the verification of the NWPs violates NEPA, 42 U.S.C. §§ 4321 et seq. Claim 3 alleges that the verification of the NWPs violates the NHPA, 16 U.S.C. § 470 et seq.

The gravamen of each claim is that, in verifying the NWPs, the Corps improperly failed to take into account the impact of the planned Totopotomoy Creek Sewer Interceptor (hereinafter the "TC Interceptor") on the environment and on historic resources. Broaddus and Crutchfield argue that the TC Interceptor is simply another component of a complete project that includes, as its other components, the WWTP, force main, and outfall. The parties agree that a project may not proceed under an NWP if the Corps concludes that it has "more than minimal individual or cumulative net adverse effects on the environment or otherwise may be contrary to the public interest." C.F.R. § 330.1(d). It is undisputed that the entire project, i.e. the WWTP, force main and outfall and the TC Interceptor, if considered as a whole, was expected to have more than a minimal impact and that the Corps did not find otherwise. It is undisputed that the impact of the WWTP, force main and outfall is quite small and that the TC Interceptor, standing alone, was expected to have a more than minimal impact.³

Broaddus and Crutchfield contend that the Corps acted arbitrarily and capriciously and in violation of law and regulation when, on a contrived, irrational basis, it did not take into account the impact of the TC Interceptor in verifying the NWPs here at issue. This, say the Plaintiffs, was the result of the improper manipulation of the permit process and the applicable permit regulations by the Corps and the County.

For the reasons set forth below, the action of the Corps verifying NWPs for the WWTP, force main, and outfall is found to be arbitrary, capricious and unlawful and, therefore, is set aside.

THE FACTS OF RECORD

Review of the Corps' decisions must be based on the record. Hence, the facts in the record are set forth in detail.

A. Early Days

Many years ago, the County identified its growing wastewater treatment needs and developed a sewage treatment project, the components of which were a WWTP, force main, outfall, and interceptor, to meet those needs. "Construction of the wastewater treatment plant is critical to the County implementing its Comprehensive Plan where growth is directed into the `Suburban Service Area' in order to preserve the rural character of the remainder of Hanover County." R426.⁴ Although a WWTP in the general vicinity of the proposed WWTP has been part of the County's comprehensive plan since 1972, R426, the County did not purchase the site for the proposed WWTP until 1997. R593. The County's plans envision that the sewage treated in the WWTP is to be transported by a discharge force main to an outfall which will discharge the treated effluent into the Pamunkey River approximately 43,500 feet from the plant. R426-27. The TC Interceptor, like the WWTP, has "been shown in the [County's] Comprehensive Plan for many years." R426.

B. The Developments in 1997, 1998 and Early 1999

The TC Interceptor here at issue is the fourth phase of a sewer interceptor, the first phase of which was designed in 1983 and placed in service in 1985. The fourth phase TC Interceptor is the link between the existing interceptor and the WWTP.

The County's long-term plan began to jell when, in 1997, it settled on the exact location of the WWTP. In a report dated February 10, 1997, the County's outside consulting engineering firm, Timmons, recommended that the current location of the TC Interceptor be where it is today. R247-51. In that report (Totopotomoy Basin Wastewater Transport Options Letter Report), Timmons outlined the Basis of Analysis animating its recommendation. Among the "assumptions" used for those recommendations were:

• Totopotomoy Creek WWTP will be completed by 2002.

• Flow from pump station # 5 (Atlee High School) needs to be conveyed to the new WWTP at the time of its opening to provide sufficient flow for proper operation.

R248 (emphasis added). Thus, the record shows that the flow from the TC Interceptor is linked to the WWTP not only as the source of supply for the raw material that is to be treated at the WWTP, but also to assure proper operation of the WWTP itself. Even though site selection for the WWTP was not complete in 1997, the assumed site for the plant in February 1997 was the one on which the WWTP actually will be located. The February 1997 Letter Report on sewage transport options discusses three alternative modes for the proposed interceptor:

• Alternative A: Single Gravity Sewer

• Alternative B: Parallel Gravity Sewer

• Alternative C: Force Main.

R248-49. However, that report makes no mention of a location for the proposed TC Interceptor other than the one here at issue.

The February 1997 Letter Report on sewage transport options recommended the TC Interceptor be designed under Alternative A because the overall cost was less than two alternatives (neither of which was the Powhite Creek Pump Station which will be discussed later) and because "[e]nvironmental permitting for utility lines fall under Nationwide permits at this time and are relatively straightforward. Future permitting requirements are unknown but are expected to become increasingly difficult as new and more regulations are promulgated." R250 (emphasis added). Six months later, in August 1997, the County's Board of Supervisors issued a conditional use permit for a sewer interceptor running along Totopotomoy Creek to the site of the proposed WWTP. R232. The location of the sewer line in the conditional use permit is the current location of the TC Interceptor.

Further work was performed by Timmons in the form of a Preliminary Engineering Report "for the proposed sewer interceptor which will convey sewage to the new Totopotomoy Wastewater Treatment Facility." R28. This, of course, was of considerable importance because "[t]he collection system [the sewer interceptor] is a sizeable portion of the treatment system's capital cost." Id. (emphasis added). According to the October 6, 1998 "Final Draft of the Totopotomoy Creek Sewer Interceptor Preliminary Engineering Report" ("P.E.R.") (a rather voluminous study):

The anticipated construction of a new wastewater treatment plant (WWTP) in Hanover County has dictated that planning commence to determine how the wastewater will be transported to the new WWTP.

R28. Among the tasks assigned to Timmons was the selection of the "proposed route for the sewer interceptor" and "a preliminary design" for it. R28-29. The proposed sewer interceptor as selected and designed by Timmons in October 1998 is shown on a map attached to the P.E.R. R32. It begins at an existing sewage pump station (Pump Station No. 5) and runs east along Totopotomoy Creek for approximately 32,000 feet to the proposed WWTP. R426-27. The proposed interceptor is labeled on the map as "PROPOSED TOTOPOTOMOY CREEK SEWER INTERCEPTOR." R32.

During the fall of 1998, Broaddus and Crutchfield, who thought that they had convinced the County to move the outfall from their property, learned that the County had reverted to the plan to locate the outfall on their property. As a result of this change of plans, Broaddus and Crutchfield, through their counsel, communicated with state and federal officials, including the Corps, on the subject. R269-70, 279-93. In the course of that correspondence, counsel for Broaddus and Crutchfield expressed the view that the County would not be able to secure NWPs for the Totopotomoy wastewater treatment system because of the quantum of environmental and historical impacts of the project. R280, 293. On February 8, 1999, counsel for Broaddus and Crutchfield informed Elaine Holley (the Corps officer located in the County) that the County...