Crutchfield v. U.S. Army Corps of Engineers

• Citation: 192 F.Supp.2d 444
• Decision Date: 02 November 2001
• Docket Number: No. 3:00CV525.,3:00CV525.
• 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

192 F.Supp.2d 444

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

No. 3:00CV525.

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

November 2, 2001.

COPYRIGHT MATERIAL OMITTED

John Lyons Marshall, Jr., McSweeney & Crump, PC, William Brown Ellis, Ellis & Thorp, Richmond, VA, for Frances Broaddus Crutchfield and Henry Ruffin Broaddus.

M. Hannah Lauck, United States Attorney's Office, Richmond, VA, Gregory Scott Williams, U.S. Department of Justice, Environmental Defense, Environment and Natural Resources Div., Washington, DC, Katherine Deily Will, U.S. Army Corps of Engineers, Norfolk Division, Norfolk, VA, for United States Army Corps of Engineers.

Sterling Edwards Rives, III, Hanover County Attorney's Office, Hanover, VA, Robert Michael Tyler, McGuireWoods, LLP, Richmond, VA, William G. Broaddus, McGuireWoods, LLP, Richmond, VA, for County of Hanover, Virginia.

MEMORANDUM OPINION

PAYNE, District Judge.

This action 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 respect of the County's attempts to meet its growing wastewater treatment needs. 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 and its implementing regulations.'" Id. at 904-05.

The parties were directed to confer respecting, and to brief, the issue whether injunctive relief was appropriate to foreclose the County from further construction of any aspect of the wastewater treatment project while the Corps complied with the CWA, NEPA, and the NHPA. An evidentiary hearing on the issue of injunctive relief was held on October 3, 2001.

BACKGROUND

The August 14 Opinion sets forth the historical background respecting the County's attempt to satisfy its wastewater treatment needs. It describes in detail the full course of the administrative process and the litigation that constitutes the framework within which the issue of injunctive relief arises. The August 14 Opinion, therefore, is incorporated here in the interest of brevity. Nonetheless, it is useful briefly to outline the facts that are most salient to the assessment of the request for injunctive relief.

Many years ago, the County recognized its growing wastewater treatment needs and began to plan the project at issue here. Those plans required construction of a project consisting of several components (a wastewater treatment plant (the "WWTP"), an interceptor pipeline (the "interceptor"), a force main, and an out-fall/diffuser) that, together, 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 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' decision verifying that, under three Nationwide Permits ("NWPs"), the County could proceed with construction of several components of the project. Plaintiffs alleged that the Corps had violated applicable provisions of the CWA, NEPA, and NHPA. Plaintiffs sought a declaration that the Corps' verification of NWPs was contrary to law, pursuant to the APA, 5 U.S.C. §§ 551 et seq., as well as injunctive relief to stop construction of the project until there was compliance with the applicable statutes.

The August 14 Opinion discusses in detail the specific decisions with which the Corps was faced when considering the County's permit application, the process by which the Corps came to 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 "remarkably illogical conclusion" respecting whether the WWTP, the force main, and the outfall/diffuser had "independent utility" from the interceptor so that construction of those three components could proceed under authority of NWPs while the Corps considered whether to issue an individual permit for construction of the interceptor. See Crutchfield, 154 F.Supp.2d at 895-903; 33 C.F.R. § 330.6(d). The consequence of that decision was that the Corps did not conduct the requisite environmental assessments of the project that otherwise would have been required under NEPA and the NHPA. See id. at 904. The action of the Corps verifying NWPs for certain aspects of the project was set aside, and the matter was remanded to the Corps for further reconsideration in accordance with the August 14 Opinion.

FACTS RESPECTING INJUNCTIVE RELIEF

The wetlands (the existence of which necessitates Corps review and approval of the project) that have been, and would be, affected by construction of the project are small in area.⁵ Specifically, as set forth in the August 14 Opinion, at the outset of the project the County estimated the total area of affected wetlands to be as follows:

[T]he WWTP will impact approximately 0.028 acre[ ] of wetlands for construction of the influent pump station [and 0.15 acre[ ] of wetlands for construction of the WWTP itself] and have no impact on waters; construction of the force main will not have a permanent impact on wetlands or waters, but will temporarily impact approximately 0.06 acre[ ] of wetlands and/or waters; the outfall `will not have permanent impacts to wetlands or waters of the United States except for placement of the outfall diffuser on the river bottom.' ... And ... the TC interceptor involves 35 acres of wetlands ... of which 22 would be disturbed initially and 9 would be permanently cleared.

Id. at 884 (citing June 3, 1999 "Pre-Application Package"). Subsequently, the County modified the project so that the total area of affected wetlands is approximately 3.84 acres, made up of (1) a total of 0.16 acre of wetlands on the site of the proposed WWTP, 0.13 acre of which lies adjacent to an additional 0.02 acre of waters of the United States, and .01 acre of which is isolated and covered by an area of permanent fill and a large soil stockpile; (2) three wetlands crossings totaling approximately .06 acre that lie along the site of the proposed force main;⁶ and (3) approximately 3.62 acres of wetlands along the route of the proposed interceptor.

Steven Herzog, the County's Senior Utility Engineer for the Department of Public Utilities, is responsible for overseeing all aspects of the design, permitting, and construction of the project. Mr. Herzog testified at the October 3 hearing that the total projected cost of all aspects of the project would be in the range of $35 to $39 million (hereinafter stated as $39 million), of which approximately $32 to $33 million (hereinafter stated as $33 million) were the expected cost of construction. The construction costs are allocated to the components of the project as follows: (1) the WWTP is expected to cost approximately $18 to $19 million (hereinafter stated as $19 million), of which approximately $5 to $5.5 million (hereinafter stated as $5.5 million) (about 29%) had been spent as of August 31, 2000;⁷ (2) the force main is expected to cost approximately $5 million, of which approximately $4.7 to 4.8 million (hereinafter stated as $4.8 million) (about 96%) has already been spent; (3) the outfall/diffuser is expected to cost approximately $500,000, of which none has been spent thus far; and (4) the interceptor is expected to cost approximately $6 to 7 million (hereinafter stated as $7 million), of which none has been spent thus far. Therefore, a total of approximately $10.3 million in construction costs have been expended on the project thus far, representing just over 31% of the total anticipated construction cost of the project.

Mr. Herzog and Mr. Frank Harksen, the County's Director of Public Utilities, testified as to the fiscal and other liabilities that the County expects to incur if an injunction were to prevent continued construction of the project. For example, Mr. Herzog testified that the County has contracted to buy equipment valued at approximately $3.8 million for use in construction of the WWTP which had not yet...