Friends of the Capital Crescent Trail v. U.S. Army Corps of Eng'rs, CIVIL NO. JKB-19-106

Decision Date13 April 2020
Docket NumberCIVIL NO. JKB-19-106
Parties FRIENDS OF the CAPITAL CRESCENT TRAIL, et al., Plaintiffs v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants Maryland Department of Transportation, et al., Defendant-Intervenors
CourtU.S. District Court — District of Maryland

David W. Brown, Knopf and Brown, Rockville, MD, for Plaintiffs.

Sarah A. Buckley, US Department of Justice, Gustavus Maxwell, Washington, DC, for Defendants.

Albert M. Ferlo, Perkins Coie LLP, Seattle, WA, Julie Theresa Sweeney, Maryland Office of the Attorney General, Baltimore, MD, for Defendant-Intervenors.

MEMORANDUM

James K. Bredar, Chief Judge

This lawsuit represents the Friends of the Capital Crescent Trail's third attempt to prevent the construction of the light rail transit project known as the "Purple Line." In this case, Plaintiffs challenge the decision of Defendants, the United States Army Corps of Engineers ("the Corps"), Col. John Litz, and Chief Joseph DaVia, to grant the Clean Water Act permit authorizing Defendant-Intervenors Maryland Department of Transportation ("MDOT") and Maryland Transit Administration (collectively "MTA" or "Maryland") to discharge dredge and fill materials in connection with the development of the Purple Line. Plaintiffs contend that Defendants’ issuance of the permit was contrary to the requirements of the Clean Water Act and violated the Administrative Procedure Act. They seek declaratory relief and an order of vacatur.

All parties have moved for summary judgment and the cross-motions are fully briefed. Plaintiffs also moved for an order rescheduling a hearing on the cross-motions. No hearing is required and Plaintiffs’ request is accordingly denied. See Local Rule 105.6 (D. Md. 2018). For the reasons set forth below, Plaintiffsmotion for summary judgment will be denied, and Defendants’ and Defendant-Intervenorscross-motions for summary judgment will be granted.

I. The Parties and the Regulatory Framework

The Friends of the Capital Crescent Trail ("FCCT") is a 501(c)(3) non-profit organization dedicated to preserving parkland, open space, and quality of life in Montgomery County, Maryland. (Compl. ¶ 4, ECF No. 1.) Plaintiff John Fitzgerald is a semi-retired public interest attorney and consultant who lived in Chevy Chase, Maryland until recently, and who remains a lover and regular visitor of the area's parks, including the Georgetown Branch of the Capital Crescent Trail ("the Trail"). (Id. ¶ 6; Fitzgerald Decl. ¶ 2, ECF No. 34-3.) Plaintiff Leonard Scensny is a resident of Chevy Chase and an avid user of the area's parks, including the Trail. (Compl. ¶ 7.)

MTA is a unit of MDOT, which is an agency of the State of Maryland. (Mot. Intervene Mem. Supp. at 2, ECF No. 20-2.) MTA is generally responsible for the development, administration, and operation of transit services throughout Maryland. (Id. ) One of MTA's major ongoing projects is the development of the "Purple Line," a 16.2-mile light rail transit project designed to "provide faster, direct, reliable east-west transit service connecting major activity centers" in the Maryland suburbs of Washington, D.C. (Decision Document at Joint Appendix ("JA") 14, ECF No. 37.) Pertinent to this litigation, the Purple Line will permanently alter the Trail, compromising the "natural, quiet conditions" that members of the FCCT cherish. (Roy Decl. ¶ 4, ECF No. 34-2.) Also pertinent, the development of the Purple Line project entails the discharge of dredge and fill materials into certain nearby waters, which can only be done if authorized by the Corps—a federal agency with regulatory and permitting jurisdiction under the Clean Water Act ("CWA" or the "Act"). (Corps Ans. ¶ 12, ECF No. 18.) Defendants Colonel Litz and Chief DaVia are Corps officials with authority over the issuance of permits in Maryland. (Compl. ¶¶ 13-14.)

Though the CWA generally prohibits the discharge of dredge and fill materials into navigable waters, Section 404 ( 33 U.S.C. § 1344 ) provides that the Corps may issue permits authorizing such discharge in accordance with the Section 404(b)(1) Guidelines, as codified at 40 C.F.R. § 230 (the "Guidelines"). The Guidelines provide that "no discharge of dredged or fill material shall be permitted if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences." 40 C.F.R. § 230.10(a). This rule is known as the "least environmentally damaging practicable alternative" ("LEDPA") requirement. The Guidelines further establish that to be a "practicable alternative," an alternative must be "available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes." 40 C.F.R. § 230.10(a)(2).

If a non-water dependent project involves discharging dredge and fill materials into a "special aquatic site" like a wetland, then the Guidelines establish a presumption that practicable alternatives not impacting special aquatic sites are available, "unless clearly demonstrated otherwise." 40 C.F.R. § 230.10(a)(3). Accordingly, the Corps may only issue a permit authorizing discharge in a special aquatic site if the Corps determines that the permit applicant has rebutted this presumption. Proof that the Corps made a reasonable determination on this score "does not require a specific level of detail ... but only record evidence the agency took a hard look at the proposals and reached a meaningful conclusion based on the evidence." Hillsdale Envt'l Loss Prevention, Inc. v. U.S. Army Corps of Eng'rs , 702 F.3d 1156, 1168 (10th Cir. 2012). Additionally, "[t]he plain language of the Section 404 regulatory scheme indicates that the level of review depends on the nature and severity of the project's impact on the [aquatic] environment." Town of Norfolk v. U.S. Army Corps of Eng'rs , 968 F.2d 1438, 1447 (1st Cir. 1992) (citing 40 C.F.R. § 230.10 ("the compliance evaluation procedures will vary to reflect the seriousness of the potential for adverse impacts on the aquatic ecosystems posed by specific dredged or fill material discharge activities")).

Separate from the CWA, the National Environmental Policy Act ("NEPA") also requires federal agencies to take a "hard look" at all potential environmental impacts before taking "major Federal actions significantly affecting the quality of the human environment." Nat'l Audubon Soc'y v. Dep't of Navy , 422 F.3d 174, 184 (4th Cir. 2005) (quoting 42 U.S.C. § 4332(2)(C) ). To satisfy NEPA, "an agency must prepare a ‘detailed statement ... [on] the environmental impact of the proposed action, any adverse environmental effects which cannot be avoided should the proposal be implemented, [and] alternatives to the proposed action.’ " City of Alexandria, Va. v. Slater , 198 F.3d 862, 868 (D.C. Cir. 1999) (quoting 42 U.S.C. § 4332(2)(C)(i)(iii) ) (alterations in original). This is known as the "environmental impact statement" ("EIS"). The CWA Section 404(b)(1) Guidelines contemplate the possibility that a particular project for which a Section 404 permit is required may also be subject to NEPA. In such instances, 40 C.F.R. § 230.10(a)(4) establishes:

the analysis of alternatives required for NEPA environmental documents, including supplemental Corps NEPA documents, will in most cases provide the information for the evaluation of alternatives under these Guidelines. On occasion, these NEPA documents may address a broader range of alternatives than required to be considered under this paragraph or may not have considered the alternatives in sufficient detail to respond to the requirements of these Guidelines. In the latter case, it may be necessary to supplement these NEPA documents with this additional information.
II. Factual and Procedural Background

The Purple Line represents the culmination of decades of planning, and the project has been subject to many years of detailed analysis regarding its environmental impact. (MTA Mot. Summ. J. Mem. Supp. at 2–3, ECF No. 38-1.) The Federal Transit Administration ("FTA") and MTA first began preparing a NEPA EIS related to the Purple Line project in 2003, and the FTA published a notice announcing its intent to do so that year. ( Environmental Impact Statement for Bi-County Transitway Project, 68 Fed. Reg. 52,452 (Sept. 3, 2003) at JA767–69.) In subsequent years, FTA and MTA "examined a wide range of modes and alignments" for the eventual project, seeking comment from the public and other agencies. (Alternatives Analysis/ Draft EIS at JA722.) The alignments considered in this early stage included various heavy rail, monorail, light rail transit ("LRT"), and bus rapid transit ("BRT") options. ( Id. at JA722–24). Though the Corps was not a "cooperating agency," it weighed in at various points during the NEPA process, including to convince FTA and MTA to "eliminat[e] from further consideration" an alignment with particularly severe wetland impacts. ( Id. at JA724; Decision Document at JA16.)

After years of evaluating and narrowing down the pool of potential options, FTA and MTA eventually focused in on eight alternative alignments for detailed analysis in 2008. (Alternatives Analysis/Draft EIS at JA727–48.) These included: a baseline "No Build" alternative, which would leave the existing transit system intact; a Transportation System Management ("TSM") alternative, which would improve public transportation services on already existing roads; three BRT alternatives (low, medium, and high investment) that involved constructing a new busway partially separate from automobile traffic and partially sharing existing traffic lanes; and three LRT alternatives (low, medium, and high investment) that likewise involved constructing a new light rail transit line partially separate from automobile traffic and partially sharing existing traffic lanes. ( Id. ) Each of the six BRT and...

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  • Friends of Capital Crescent Trail v. U.S. Army Corps of Eng'rs
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • 13 d4 Maio d4 2021
    ...by proposing or demanding novel alternatives that no party has yet clearly outlined." Friends of the Cap. Crescent Trail v. U.S. Army Corps of Eng'rs, 453 F. Supp. 3d 804, 817-18 (D. Md. 2020) (quoting Hoosier Env't Council v. U.S. Army Corps of Eng'rs, 722 F.3d 1053, 1061 (7th Cir. 2013)).......

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