Georgia River Network v. Army Corps of Engineers

• Decision Date: 08 August 2003
• Docket Number: No. CIV.A. 1:03-CV-0185-JTC.,CIV.A. 1:03-CV-0185-JTC.
• Citation: 334 F.Supp.2d 1329
• Parties: GEORGIA RIVER NETWORK and Altahama Riverkeeper, Plaintiffs, v. U.S. ARMY CORPS OF ENGINEERS, Robert B. Flowers, Commander and Chief of Engineers, U.S. Army Corps of Engineers, Roger A. Gerber, Colonel, U.S. Army Corps of Engineers, Savannah District, and Henry County Water and Sewerage Authority, Defendants.
• Court: U.S. District Court — Northern District of Georgia

Page 1329

334 F.Supp.2d 1329

GEORGIA RIVER NETWORK and Altahama Riverkeeper, Plaintiffs, v. U.S. ARMY CORPS OF ENGINEERS, Robert B. Flowers, Commander and Chief of Engineers, U.S. Army Corps of Engineers, Roger A. Gerber, Colonel, U.S. Army Corps of Engineers, Savannah District, and Henry County Water and Sewerage Authority, Defendants.

No. CIV.A. 1:03-CV-0185-JTC.

United States District Court, N.D. Georgia, Atlanta Division.

August 8, 2003.

COPYRIGHT MATERIAL OMITTED

Ciannat Howett, Southern Environmental Law Center, Julie Virginia Mayfield, Atlanta, GA, J. David Farren, PhV, Southern Environmental Law Center, Chapel Hill, NC, for Plaintiffs.

Patricia Rebecca Stout, Office of United States Attorney Northern District of Georgia, Atlanta, GA, for Defendants.

Patricia T. Barmeyer, Randall J. Butterfield, King & Spalding, Atlanta, GA, A. J. Welch, Jr., Smith Welch & Brittain, McDonough, GA, for Proposed Intervenor.

ORDER

CAMP, District Judge.

This case is before the Court on the following motions: Plaintiffs' Motion for a Preliminary Injunction [# 2-1]; Plaintiffs' Motion for a Temporary Restraining Order [# 10-1]; Intervenor's Motion to Partially Dismiss Plaintiffs' Complaint [# 30-1]; Intervenor's Motion for Expedited Briefing on the Preliminary Injunction Motion [# 31-1]; Plaintiffs' Motion for Summary Judgment [# 42-1]; Intervenor's Motion for Leave to File a Post Argument Memorandum [# 56-1]; and Defendant's Motion to File in Excess Pages [# 59-1].

Plaintiffs contend Defendant U.S. Army Corps of Engineers ("Corps") violated the National Environmental Policy Act and the Clean Water Act when it issued a Section 404 permit to Defendant-Intervenor Henry County Water and Sewerage Authority ("HCA") for the construction of a reservoir on the Tussahaw Creek without preparing an Environmental Impact Statement ("EIS"). The Corps' decision, however, that the environmental consequences of the action are not sufficient to require an EIS is not arbitrary or capricious. Plaintiffs' Motion for a Preliminary Injunction [# 2-1], Motion for a Temporary Restraining Order [# 10-1], and Motion for Summary Judgment [# 42-1] are DENIED.

Intervenor's Motion to Partially Dismiss Plaintiffs' Complaint [# 30-1] is also DENIED, and Intervenor's Motion for Expedited Briefing on the Preliminary Injunction Motion [# 31-1] is DENIED as moot. Intervenor's Motion for Leave to File a Post Argument Memorandum [# 56-1] and Defendant's Motion to File in Excess Pages [# 59-1] are GRANTED nunc pro tunc.

The Court makes the following findings of fact and conclusions of law.

I. BACKGROUND

A. The Proposed Reservoir

The proposed Tussahaw Creek Reservoir ("Reservoir") is to be located in Butts and Henry Counties, Georgia. Vol. I at 369. The Reservoir will impound the Tussahaw Creek, a tributary to the Ocmulgee River,¹ located approximately five miles upstream from another artificial lake created in 1910 by Lloyd Shoals Dam for Georgia Power's Jackson Lake hydropower facility. Vol. XII at 6848, 6855. In the course of construction, approximately 30,000 cubic yards of fill material will be deposited into the waters of the United States, in order to create a reservoir with the surface area of 1,477 acres. Vol. V at 2504. The Clean Water Act requires that the Corps issue a permit (known as a Section 404 permit) before the fill material can be deposited into the Tussahaw. 33 U.S.C. § 1344.

Currently, significant competition exists between local governments in northern Georgia to obtain Section 404 permits for reservoirs. Forty-two other reservoir actions in Georgia are either permitted, pending, in the pre-application stage or temporarily withdrawn due to insufficient data. Vol. XII at 6848. In this regard, the Corps made the following observations:

There is competition for water resources between agricultural areas and the north Atlanta metropolitan urban areas....The most important issue for the State of Georgia at this time may be how to manage the state's surface and ground water resources to satisfy the need for adequate water supply by the competing users....The result of the fragmentation of applications for CWA Section 404 permits, from any existing watershed plan, results in CWA permitting on a "first come, first serve" basis and a race for permits by those counties in north Georgia.... Vol. XII at 6847-48.

HCA seeks to construct the Reservoir to provide an adequate water supply to the residents of Henry County. Vol. V at 2509. From 1990 until 2000, Henry County's population increased by 103%. Id. As the third fastest growing county in the United States, Henry County will exhaust its current water supply by 2004. The Reservoir is expected to yield 23.6 million gallons of water per day. Vol. V at 2509; Vol. VIII at 446; Vol. XII at 6813. This will provide an adequate water supply to the residents of the County until 2016. Vol. XII at 6813.

Downstream from the Reservoir and Lloyd Shoals Dam, the Ocmulgee River joins with the Oconee to form the Altahama River. Vol. XII at 6848, 6855. In 2002, the American Rivers Organization named the Altahama as one of the healthiest rivers on the eastern seaboard but also one of the most at risk because of the proliferation of reservoirs. The American Rivers Organization's concern is that the reservoirs will reduce the flow of water into the Altahama, which may induce a "perpetual drought" condition in the Altahama. The result would be increased salinity from the decreased fresh water flow. Vol. IX at 4769-70. The Altahama's estuary contains one-third of Georgia's coastal resource fisheries, a $430 million dollar industry. Vol. IX at 5085.

B. The Section 404 Permit

HCA must obtain a Section 404 permit from the Corps, which will allow it to discharge fill materials into Tussahaw Creek in order to construct a dam. 33 U.S.C. § 1344(a), (f)(2). The National Environmental Policy Act ("NEPA") requires the Corps to consider whether its action would significantly affect the quality of the human environment before issuing the permit. 42 U.S.C. § 4332(2)(c).

On June 5, 2000, HCA submitted its application for a Section 404 permit to the Corps, and on December 27, 2000, a Joint Public Notice of HCA's permit application was issued. Vol. I at 168; Vol. V at 2512. HCA conducted two public hearings on the Reservoir and the Section 404 permit. The Corps held no additional public hearings. Vol. V at 2443.

Several parties objected to the permit. The U.S. Environmental Protection Agency ("EPA") expressed concerns regarding downstream water quality, whether the proposed mitigation for the site is adequate, sufficiently detailed, and enforceable, and whether a comprehensive EIS would be appropriate considering other pending permits. The EPA recommended the Corps deny the permit. Id. at 2520, 2534, 2535, 2538-39; Vol. II at 473, 479.

The U.S. Fish and Wildlife Service ("FWS") also questioned whether the several pending reservoir projects could result in significant impacts on aquatic environments. Id. at 2542, 2546. The FWS recommended the permit be denied and a programmatic assessment be conducted of the pending permits in north Georgia. Vol. II at 498, 500.

As required by NEPA, the Corps conducted an Environmental Assessment ("EA") to determine whether the environmental impacts of the Reservoir would be significant. If significant, NEPA requires a more in depth Environmental Impact Statement: if not, the Corps may issue a Finding of No Significant Impact ("FONSI"), and nothing further would be required under NEPA.

On September 27, 2002, the Corps completed an EA for the Reservoir, found no significant environmental impact, and issued a FONSI. On the same day, the Corps also issued a draft Section 404 permit to HCA which imposed mitigating conditions on the Reservoir's construction. HCA accepted the permit and the conditions, and the Corps issued the Section 404 permit on October 23, 2002. Vol. V at 2782; Vol XII at 6818.

On January 22, 2003, Plaintiffs, the Georgia River Network and Altahama Riverkeepers, filed this action to enjoin the Corps from issuing the Section 404 permit until the Corps completes an EIS. HCA successfully intervened in the action as a defendant.

As a consequence of the lawsuit, the Corps suspended the Section 404 permit to review the cumulative impacts of previously permitted reservoirs and existing dams in the Ocmulgee River Basin. Vol. XII at 6745. The administrative record and EA omitted specific information on these impacts. Id. After review, the Corps issued a supplemental EA and FONSI, again concluding that an EIS is unnecessary. On May 9, 2003, the Corps reissued the Section 404 permit. Vol. XII at 7061.

C. Plaintiffs' Claims

Plaintiffs claim the Corps violated NEPA by failing to adequately address the significant environmental impacts of the reservoir through an EIS. 42 U.S.C. §§ 4321 et seq. Plaintiffs also claim that the Corps violated CWA because, without an EIS, the Corps could not make a reasoned determination whether the Reservoir was the least damaging alternative to fulfill the future water needs of Henry County. 33 U.S.C. §§ 1251 et seq. As a result, Plaintiffs claim the Corps' actions under both the CWA and NEPA are arbitrary and capricious under the Administrative Procedure Act ("APA"). 5 U.S.C. § 706(2)(A). Finally, Plaintiffs allege the Corps failed to give correct notice of the permit issuance as required by federal regulations. See 40 C.F.R. §§ 1501.4, 1506.6, 33 C.F.R. §§ 230.10, 230.11, and 325.2(a)(8).

II. SUMMARY JUDGMENT STANDARD

Rule 56(c) of the Federal Rules of Civil Procedure defines the standard for summary judgment: Courts should grant summary judgment when "there is no genuine issue as to any material fact ... and the moving party is entitled to judgment as a matter of law." Where an action is brought pursuant to the APA, "[t]he focal point for judicial review of an administrative agency's action should be the administrative record." P.E.A.C.H.,...