Crutchfield v. U.S. Army Corps of Engineers

• Decision Date: 07 August 2002
• Docket Number: No. CIV.A. 3:02CV253.,CIV.A. 3:02CV253.
• Citation: 214 F.Supp.2d 593
• 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

214 F.Supp.2d 593

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

No. CIV.A. 3:02CV253.

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

August 7, 2002.

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Williams B. Ellis, Benjamin A. Thorp, III, Ellis & Thorp, Richmond, VA, for Plaintiffs.

Gregory S. Williams, U.S. Dept. of Justice, Environmental Defense, Environment and Nat. Resources Div., Washington, DC, Katherine D. Will, U.S. Army Corps of Engineers, Norfolk Div., Norfolk, VA, M. Hannah Lauck, U.S. Attorney's Office, Richmond, VA, for Corps.

Sterling E. Rives, III, Yvonne S. Wellford, Hanover County Attorney's Office, Hanover, VA, William G. Broaddus, McGureWoods LLP, Richmond, VA, for Hanover Co.

MEMORANDUM OPINION

PAYNE, District Judge.

The County of Hanover, Virginia (the "County") received from the United States Army Corps of Engineers (the "Corps") authorization to build a project, the purpose of which is to collect sewage, treat it, and then discharge the treated sewage into the Pamunkey River. As designed, the point of discharge (or "outfall") would be located on property that Frances Broaddus Crutchfield and Henry Ruffin Broaddus (the "Plaintiffs") own, and the discharge would be dispersed into the Pamunkey River by a diffuser that would be located in the Pamunkey River where the river abuts the Plaintiffs' property.

The Virginia Department of Environmental Quality (the "DEQ") has classified the Pamunkey River as "impaired" because the level of fecal bacteria extant therein exceeds that which is allowable under applicable water quality standards.¹ The Pamunkey River also suffers from shortage of dissolved oxygen and, for that reason, the DEQ has listed it as "threatened due to natural conditions." See Administrative Record, at 1806-08.

In a previous action, the Court invalidated the Corps' decision to verify that the County could construct a slightly different version of the project pursuant to several so-called Nationwide Permits ("NWPs"). The matter was remanded to the Corps, which, by a Memorandum for the Record ("MFR") dated April 4, 2002 (the "April 4 MFR"), decided that the County could proceed with a modified version of its wastewater treatment project under a different set of NWPs. In this action, the Plaintiffs challenge that second permitting decision.

For a complete understanding of the previous litigation, it is advisable to refer to the Memorandum Opinions issued in Crutchfield v. United States Army Corps of Engineers, Civil Action No. 3:00cv525, on August 14, 2001,² November 2, 2001,³ and December 12, 2001,⁴ and to the Memorandum Order issued May 22, 2002 (collectively referred to as "Crutchfield I"). Those decisions provide a comprehensive review of the first dispute, resolution of which preceded, and forms the background of, this action. In the interests of brevity and completeness, the opinions in Crutchfield I are incorporated here, however, a summary review of the prior litigation is set forth in Section I.A.

Like Crutchfield I, this action was filed pursuant to the judicial review provisions of the Administrative Procedure Act, 5 U.S.C. § 551, et seq. (the "APA"). The Complaint alleges that, in addition to violating the APA, the decision-making process through which the Corps verified the County's use of four NWPs as the authority under which to construct its revised sewage treatment project contravened the Clean Water Act ("CWA"), 33 U.S.C. §§ 1251 et seq.; the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq.; and the National Historic Preservation Act ("NHPA"), 16 U.S.C. §§ 470 et seq. The Plaintiffs contend that, for a second time, the Corps' actions with respect to the County's project were arbitrary, capricious, and not in accordance with law.⁵ The parties have submitted briefs in support of their respective positions on the merits of the Plaintiffs' challenge, and, on July 10, 2002, oral argument was heard. For the reasons set forth below, the Corps' decision to verify the NWPs, as articulated in the April 4 MFR, is set aside as arbitrary, capricious, and not in accordance with law.

I. STATEMENT OF FACTS

A. Crutchfield I

As stated above, the nature and evolution of this dispute can be appreciated fully only in perspective of the decisions in Crutchfield I, however, for present purposes, an abbreviated review of that case must suffice. Under the circumstances outlined exhaustively in the decisions issued in Crutchfield I, the County planned, and began construction of, a wastewater treatment project, several aspects of which implicated federal environmental laws and regulations, and, as such, required authorization by the Corps. That project, as it originally was conceived, involved construction of a wastewater treatment plant (the "WWTP"), an interceptor pipeline to carry untreated wastewater to the WWTP for treatment (which the parties referred to as the "TC Interceptor"), a discharge forcemain, and an outfall/diffuser structure. See generally Crutchfield, 154 F.Supp.2d at 881-86, 175 F.Supp.2d at 838-40, 192 F.Supp.2d at 447-51. Pursuant to the CWA and its implementing regulations, the Corps was called upon to decide what type of permits, if any, could issue to authorize the County to undertake certain activities (i.e., dredging, filling, and construction) involving wetlands upon which components of that project were intended to be built.⁶ On June 7, 2000, the Corps issued a Memorandum for the Record verifying that the County was authorized to proceed with construction of the WWTP, forcemain, and outfall pursuant to Nationwide Permits ("NWPs") because those three components of the project would cause only minimal impacts to wetlands. However, the Corps also decided that the TC Interceptor needed to be assessed under the more stringent regulations applicable to individual permits because the impact on wetlands of that component would be more than minimal.

At the risk of oversimplification, there are two basic processes through which the Corps may confer its regulatory approval upon projects that affect wetlands which are subject to its jurisdiction. One is the general permit procedure, of which verification of an NWP authorization is one kind. The other is the issuance of an individual permit.

Projects that are permitted to proceed under NWPs undergo no significant environmental review under the CWA; that is because such a project qualifies for NWP status only upon a preliminary determination that it will have "minimal impacts" upon wetlands. In contrast, projects that must proceed pursuant to the individual permit process undergo a rigorous environmental review. Clearly, it is significantly advantageous for a permit applicant to be allowed to proceed under an NWP and, thereby, avoid the expense and delay that attends the more thorough environmental scrutiny that is inherent in the individual permit process. Thus, the determination whether a project poses a greater than "minimal impact" on wetlands is of critical importance. And, as shown in Crutchfield I, the definition of the project is a fundamental aspect of the determination that a project will, or will not, engender only "minimal impacts."⁷

The gravamen of the Plaintiffs' claims in Crutchfield I was that, in verifying that the County could proceed with construction of the WWTP, the forcemain, and the outfall, the Corps had failed to take into account the environmental impacts of the TC Interceptor, for which the County separately had sought authorization in the form of an individual permit. By authorizing the County to proceed in that manner, the Plaintiffs argued, the Corps had allowed the County improperly to "segment" the TC Interceptor from the other components of the project, thereby evading the full measure of regulatory scrutiny that the environmental laws require. See id. at 881. The record reflected that the Plaintiffs were correct; and, therefore, the verifications that the Corps had given were set aside as arbitrary, capricious, and not in accordance with law.⁸ See Crutchfield, 154 F.Supp.2d at 904-06. The matter was remanded to the Corps so that it could evaluate the project as a whole and, in perspective of that evaluation, satisfy the applicable requirements of the CWA, NEPA and NHPA.

In perspective of that judgment, and by letter dated September 25, 2001, the Corps informed the County that it had "determined that all four components of the County's expansion of its sewage treatment system should be consolidated into a single [Joint Permit Application] for review and processing of an individual Department of the Army permit." Accordingly, the Corps asked the County to "modify [its] current [individual permit application for the TC Interceptor], along with the necessary appendices, drawings and supporting information, to include the WWTP, forcemain and outfall." See Crutchfield, 192 F.Supp.2d at 451.

The Corps informed the Court of that development in a pleading filed October 2, 2001, one day before a scheduled hearing on the Plaintiffs' motion for permanent injunctive relief. The Corps represented that it would "address all components of the project in a single permitting action and [that it would] do so in the context of an application for an individual permit rather than a request for an NWP authorization." In that same pleading, however, the Corps also expressed that it did "not understand the Court to have required an individual permit application for any of the project components[,]" and, instead, had "made its decision to require an individual permit application for the [I]nterceptor, WWTP, forcemain, and outfall on a number of factors, including a reevaluation of the permitting procedures that would be most appropriate in light of the Court's decision."⁹

By the time that decision was issued, the...