HART AND MILLER, ETC. v. CORPS OF ENGINEERS OF US

• Decision Date: 20 October 1978
• Docket Number: Civ. No. HM77-973.
• Citation: 459 F. Supp. 279
• Parties: HART AND MILLER ISLANDS AREA ENVIRONMENTAL GROUP, INC., and Honorable Clarence Long, M.C. and Honorable Norman R. Stone and Maryland Wildlife Federation, Inc. and John Henderson and Howard Sappington and George Wohlleben and Robert Scott and Margaret Caldwell and Charles Justice v. The CORPS OF ENGINEERS OF the UNITED STATES and Honorable Clifford L. Alexander, Secretary of the Army and Lt. Gen. John W. Morris, Chief of Engineers of the United States Army and Col. G. K. Withers, District Engineer, Baltimore District, U. S. Army Corps of Engineers, State of Maryland, ex rel. Francis B. Burch, Attorney General of Maryland.
• Court: U.S. District Court — District of Maryland

459 F. Supp. 279

HART AND MILLER ISLANDS AREA ENVIRONMENTAL GROUP, INC., and Honorable Clarence Long, M.C. and Honorable Norman R. Stone and Maryland Wildlife Federation, Inc. and John Henderson and Howard Sappington and George Wohlleben and Robert Scott and Margaret Caldwell and Charles Justice v. The CORPS OF ENGINEERS OF the UNITED STATES and Honorable Clifford L. Alexander, Secretary of the Army and Lt. Gen. John W. Morris, Chief of Engineers of the United States Army and Col. G. K. Withers, District Engineer, Baltimore District, U. S. Army Corps of Engineers, State of Maryland, ex rel. Francis B. Burch, Attorney General of Maryland.

Civ. No. HM77-973.

United States District Court, D. Maryland.

October 20, 1978.

Edward B. Rybczynski and Ralph K. Rothwell, Jr., Baltimore, Md., for plaintiff.

Russell T. Baker, Jr., U. S. Atty., D. of Md., and Edward M. Norton, Jr., Asst. U. S. Atty., Baltimore, Md., John E. Varnum, Atty., Dept. of Justice, Washington, D. C., for defendants, The Corps of Engineers and The Secretary of the Army.

Michael B. Hare, Baltimore, Md., for defendant The Baltimore Dist. of the Corps of Engineers.

A. Adgate Duer, Baltimore, Md., for defendant Steamship Trade Ass'n of Baltimore, Inc.

Francis B. Burch, Atty. Gen., State of Md., Baltimore, Md., Warren K. Rich, Asst. Atty. Gen., Dept. of Natural Resources of State of Md., Annapolis, Md., Robert B. Harrison, III, Asst. Atty. Gen., Maryland Port Administration, Baltimore, Md., for State of Md.

MEMORANDUM AND ORDER

HERBERT F. MURRAY, District Judge.

On June 30, 1977, a number of environmental groups and interested individuals filed suit against the Corps of Engineers (hereinafter the Corps), seeking in an eleven count complaint relief from the issuance of a permit by the Corps to the State of Maryland for the construction of a dike and disposal area in the Chesapeake Bay. On October 10, 1977, this court granted the motions of the State of Maryland and the Steamship Trade Association of Baltimore, Inc. to intervene as defendants in this action. Since that time, all parties have engaged in extensive discovery and on May 31, 1978 all parties filed cross motions for summary judgment. The motions for summary judgment were the subject of oral argument on June 21, 1978 and it is the purpose of this memorandum and order to rule on these motions.

Background

On February 23, 1972, the State of Maryland, through its Department of General Services, filed an application with the Corps for a permit under the Rivers and Harbors Act of 1899, 33 U.S.C. § 401 et seq., (sometimes herein referred to as the Act) and Section 404 of the Federal Water Pollution Control Act Amendments of 1972, as amended, 33 U.S.C. § 1344, to construct a dike and dredged spoil disposal facility at Hart and Miller Islands in the Chesapeake Bay. The stated purpose of the dike and disposal area is to contain approximately fifty-two million cubic yards of dredge spoil to be removed from the Baltimore Harbor and its channel approaches.

Hart and Miller Islands are located within Chesapeake Bay approximately thirteen miles east of Baltimore, Maryland. The dike and containment area is to be constructed on the bayward (eastern) side of Hart and Miller Islands about one mile from the mainland and will occupy an area of 1,100 acres or approximately two square miles. The dike itself is to be constructed with sand which will be dredged from deposits within the disposal area. Construction is estimated to take two years.

When the dike is completed, its walls will stand eighteen feet above mean low water, somewhat higher than the current maximum elevations of Hart and Miller Islands which are 5.5 feet and 2.3 feet, respectively. However, only twelve percent of Hart Island and fifty-two percent of Miller Island will be covered by the disposal area. Basically, the disposal area will be rectangular in shape with the islands fitting in to the northwestern, longer side of the area and the structure occupying principally an area to the southeast of the islands.

Dredged spoil will be transported to the disposal area by pumping the material through hydraulic pipelines either from the dredging sites in the Baltimore Harbor or from barges which will carry the dredged spoil from the dredging site to the disposal area. The dredged material will be pumped into the diked containment area and the sand walls of the dike will allow the water to percolate out of the containment area, leaving only the dredged material inside of the containment area. Once the area has been completely filled with dredged spoil, the entire area will be at the height of eighteen feet above mean low water. As a means of protection against erosion on the bayward side of the structure, this side will be rip-rapped with stone, all other sides consisting of the sand constructed walls of the dike.

At present, the expected life of the containment area is uncertain. If the area is used only for the disposal of dredging spoil from maintenance dredging of the Baltimore Harbor and other shipping channels, the expected life of the area is twenty to thirty years. If the area is used to accommodate dredged material from the Baltimore Harbor Channel project, its life expectancy is ten years. The Baltimore Harbor Channel project is a project to deepen the Harbor and its channel approaches from the present depth of thirty-nine to forty-two feet to a depth of fifty feet in order to allow the entry of larger cargo vessels. Congress has authorized the funds for this project (Public Law 91-611) provided the State of Maryland furnishes a disposal site for the dredged spoil from the project. It is estimated that the total dredged spoil from the project will amount to one hundred million cubic yards thus indicating that the Hart and Miller Islands project will accommodate, at best, only fifty percent of this spoil.

After the filing of the application for a permit by the State of Maryland in February of 1972, the Corps began its consideration of the application with the permit finally being issued to the State on November 22, 1976. After initial review of the application, the Corps held a public hearing on August 29, 1972 and in February 1973, the Corps completed its draft environmental impact statement. The initial evaluation of the application occurred in a report dated July 18, 1974 prepared by the District Engineer of the Baltimore District. A second public hearing was held on May 10, 1975 after the Corps had conducted additional water quality analyses required under the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. The Corps' final environmental impact statement was completed in early 1976, this report being required pursuant to the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. Upon completion of the impact statement, the District Engineer for the Baltimore District prepared a report on the application recommending issuance of the permit with the inclusion of certain conditions in the permit. This recommendation was concurred in by the Corps' North Atlantic Division on March 8, 1976 and the final report was sent to the Corps' headquarters in Washington for the final approval. Final approval was given in November 1976 and the State of Maryland was issued a permit for the diked disposal facility under 33 U.S.C. §§ 403 and 1344.

The administrative record of the Corps' consideration of the permit application is described in the Government's Index to the Administrative Record filed with this court. However, the parties have agreed that the entire administrative record need not be filed and the parties have submitted those documents which they feel bear on the issues raised in the motions for summary judgment as exhibits to their motions. The court is at liberty to request that any additional documents be supplied should the court feel the need to examine additional documents in conjunction with the instant motions.

The eleven counts of plaintiffs' complaint cover numerous allegations having to do with the authority of the Corps to issue the permit and the administrative process undertaken by the Corps in determining that the permit should be granted. The claims of plaintiffs can be summarized as follows: Count one asserts that the Corps acted improperly in issuing the permit to the State of Maryland under Section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403, in that the particular project which was the subject of the permit could only be issued under Section 9 of the Act, 33 U.S.C. § 401. Section 9 requires that Congressional approval of the project be obtained in addition to the issuance of a permit by the Corps. Plaintiffs assert in Counts two through eight that the Corps failed to evaluate adequately the integrity of the proposed construction project, the alternatives to the proposed structure, the probable adverse and cumulative impacts of the structure in the Hart and Miller Islands vicinity, local zoning and permit restrictions affecting the proposed project, and the monetary costs of the permitted project. Plaintiffs allege that the failure to consider these matters adequately is a violation of the National Environmental Policy Act and the Corps' regulations. Counts nine through eleven contain claims that the Corps acted arbitrarily, capriciously and in bad faith with respect to the environmental impact statement and the decision to grant the permit to the State.

I. The Rivers and Harbors Act of 1899

The application of the State of Maryland for a permit to construct the diked disposal area at Hart and Miller Islands was filed and processed by the Corps under Section 10¹ of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403. Plaintiffs contend that the permit can be issued only under the authority of Section 9² of the Act, 33 U.S.C. § 401, because the permit authorizes the construction of one or more dikes in navigable waters of the United States. In turn, plaintiffs assert that Section 9...