Hart and Miller Islands Area Environmental Group, Inc. v. Corps of Engineers of U.S. Army
| Citation | 621 F.2d 1281 |
| Decision Date | 28 May 1980 |
| Docket Number | Nos. 78-1911,78-1912 and 79-1037,s. 78-1911 |
| Parties | , 10 Envtl. L. Rep. 20,452 HART AND MILLER ISLANDS AREA ENVIRONMENTAL GROUP, INC., a Maryland Corporation; Honorable Clarence Long, M.C.; Honorable Norman R. Stone; Maryland Wildlife Federation, Inc., a Maryland Corporation; John Henderson; Howard Sappington; George Wohlleben; Robert Scott; Margaret Caldwell; Charles Justice, Appellees, v. The CORPS OF ENGINEERS OF the UNITED STATES ARMY; Honorable Clifford L. Alexander, Secretary of the Army; Lt. General John W. Morris, Chief of Engineers of the United States Army; Col. G. K. Withers, District Engineer, Baltimore District, United States Army Corps of Engineers, Defendants, and State of Maryland, Ex Rel., Francis B. Burch, Attorney General, Appellant, and Steamship Trade Association of Baltimore, Inc., Intervening Defendant. HART AND MILLER ISLANDS AREA ENVIRONMENTAL GROUP, INC., a Maryland Corporation; Honorable Clarence Long, M.C.; Honorable Norman R. Stone; Maryland Wildlife Federation, Inc., a Maryland Corporation; John Henderson; Howard Sappington; George Wohlleben; Robert Scott; Margaret Caldwell; Charles Justice, Appellees, v. The CORPS OF ENGINEERS OF the UNITED STATES ARMY; Honorable Clifford L. Alexander, Secretary of the Army; Lt. General John W. Morris, Chief of Engineers of the United States Army; Col. G. K. Withers, District Engineer, Baltimore District, United States Army Corps of Engineers, Defendants, and State of Maryland, Ex Rel., Francis B. Burch, Attorney General, Intervening Defendant, and Steamship Trade Association of Baltimore, Inc., Appellant. HART AND MILLER ISLANDS AREA ENVIRONMENTAL GROUP, INC., a Maryland Corporation; Honorable Clarence Long, M.C.; Honorable Norman R. Stone; Maryland Wildlife Federation, Inc., a Maryland Corporation; John Henderson; Howard Sappington; George Wohlleben; Robert Scott; Margaret Caldwell; Charles Justice, Appellees, v. The CORPS OF ENGINEERS OF the UNITED STATES ARMY; Honorable Clifford L. Alexander, Secretary of the Army; Lt. General John W. Morris, Chief |
| Court | U.S. Court of Appeals — Fourth Circuit |
Joshua I. Schwartz, Washington, D. C., Warren K. Rich, Sp. Appointed Atty., Baltimore, Md., for the State of Maryland (Stephen H. Sachs, Atty. Gen., George A. Nilson, Deputy Atty. Gen., Robert B. Harrison, III, Asst. Atty. Gen., William C. Stifler, III, and Paul B. Land, Baltimore, Md., for Steamship Trade Association, on brief) for appellants.
Edward B. Rybczynski and Ralph K. Rothwell, Jr., Baltimore, Md., for appellees.
Before WIDENER and HALL, Circuit Judges, and WARRINER, District Judge. *
The State of Maryland applied to the U. S. Army Corps of Engineers (the Corps), in 1972, for a permit pursuant to Section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403, to construct a diked disposal area for dredged material on and adjacent to Hart and Miller Islands in Chesapeake Bay. The purpose of the project is to provide a site for dumping material dredged from the bottom of Baltimore Harbor and its approach channels. This material will include spoil from maintenance dredging and spoil produced by the Baltimore Harbor Channel Project, which is a Corps project designed to increase the depth of Baltimore Harbor. 1
The Corps held a public hearing on the proposal in August 1972 and completed a draft environmental impact statement in February 1973. Action on the Maryland application was delayed in order to comply with Section 404 of the Federal Water Pollution Control Act of 1972, Pub.L. 92-500, 86 Stat. 816, 884, 33 U.S.C. § 1344. A second public hearing was held in May 1975, see 459 F.Supp. 279, 281-282, and additional written comments were received in response to circulation of the draft environmental impact statement. The Corps issued a final environmental impact statement in February 1976. The Secretary of the Army, in November 1976, acting through the Corps, issued a permit to the State of Maryland, under Section 10 of the Rivers and Harbors Act of 1899 and Section 404 of the Federal Water Pollution Control Act of 1972, authorizing construction of the diked disposal facility.
Two environmental groups and a number of individuals commenced this action against the Corps in June 1977, seeking declaratory and injunctive relief voiding the permit. The complaint alleges that the Corps lacks the authority to issue the permit under Section 10 of the Rivers and Harbors Act because the barrier to surround the fill constitutes a "dike" which requires Congressional approval under Section 9 of that act, 33 U.S.C. § 401. The State of Maryland and the Steamship Trade Association of Baltimore intervened as defendants. All parties filed cross-motions for summary judgment in May 1978. 459 F.Supp. 280.
The district court granted the plaintiffs' motion for summary judgment and denied the motions filed by the defendants. Hart and Miller Islands Area Environmental Group, Inc. v. Corps of Engineers, 459 F.Supp. 279 (D.Md.1978). The court held that the Corps could not authorize construction of the disposal facility because it was a dike within the meaning of Section 9 of the Rivers and Harbors Act of 1899 and therefore required Congressional approval.
Section 9 of that statute requires the consent of Congress for the construction of "any bridge, dam, dike, or causeway over or in" any navigable water of the United States. 2 Under Section 10 of the same act the authorization of the Secretary of the Army is sufficient for the construction of "any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures." 3 The sole issue decided in this appeal is whether the Hart and Miller Islands diked disposal area is subject to Section 9 or Section 10 of the Rivers and Harbors Act. We hold that the structure is not a dike within the meaning of Section 9 and is governed by Section 10 of the statute. Therefore, it does not require Congressional approval. We thus approve the issuance of the permit by the Corps and reverse the district court.
Baltimore Harbor and its nearby navigation channels have been dredged many times in the past. Dredging will continue, both to maintain existing channels and to increase the depth of the harbor and channels. 4 An estimated 100 million cubic yards of bottom sediment will be dredged from Baltimore Harbor and nearby channels in the next twenty years. Historically, the dredged material has been dumped in the open waters of Chesapeake Bay. Such open water dumping causes pollution in the vicinity of the disposal site since the dredged bottom sediment contains toxic chemicals, heavy metals, oil, grease, and other substances. The spoil material deposited by open water dumping, of course, may also damage bottom dwelling fauna. 5 The disposal area is designed to improve the water quality of Upper Chesapeake Bay by the elimination of open water dumping.
Hart and Miller Islands are privately owned, contain no permanent structures, and are used by a limited number of boaters for recreation (without the owner's permission). There are beaches and wetlands on both islands, and part of Hart Island is forested. Both islands have a serious erosion problem which has decreased the area of Hart Island from 150 acres in 1933 to 120 acres in 1967, and decreased the area of Miller Island from 50 acres in 1933 to 33 acres in 1967. The maximum elevation of either island is 5.5 feet.
The disposal area will be 1,100 acres, approximately 12,430 feet by 4,700 feet, and will contain 52 million cubic yards of sediment when filled to its capacity of 18 feet above mean low water. About 52 percent of Miller Island (18.4 acres) and 11.5 percent of Hart Island (10.9 acres) will be covered by the facility. The dike will be constructed from sand deposits adjacent to and underlying the enclosure, and the face toward the bay will be riprapped with stone. Three sluice gates will be provided to prevent overtopping and washout of the dike. The islands are approximately one mile from the nearest point on the mainland, the western side of the bay. The containment area will be located on the eastern or bay side of the islands. The dike will extend from Hart and Miller Islands no more than 4,700 feet into the Bay in an area where the Bay is about 7 miles wide. Essentially the area is made by connecting Hart and Miller Islands with a wall, and, using the islands as two corners, then extending other walls into the Bay at right angles to the connecting wall between the islands, the ends of the walls extended into the Bay then being connected by another wall.
The dredged material will be retained in the disposal area for months or years. Sediment will settle and water will slowly percolate through the bottom of the dike until a water-level equilibrium is reached. All particulate matter will be retained in the containment area. While the Harbor spoil can be expected to contain substances that exert a biochemical oxygen demand, the slow filtration through the dike walls will eliminate the oxygen demand before the filtrate reaches the Bay. Sedimentation and filtration, coupled with the long retention period, will effectively remove and destroy any pathogenic bacteria that might be present in the Harbor mud.
The Army Corps of Engineers processed the permit application under Section 10 of the Rivers and Harbors Act. Since the adoption of that statute, the Corps has consistently interpreted Section 9 as requiring Congressional approval only for structures which completely span a navigable waterway. Under Section 10, the Corps has administratively authorized structures which do not extend...
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