Hill v. Boy, No. 97-8872

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtBefore ANDERSON and BIRCH; ANDERSON
Citation144 F.3d 1446
Parties28 Envtl. L. Rep. 21,433, 11 Fla. L. Weekly Fed. C 1531 Richard S. HILL; Derrill M. Maxwell, et al., Plaintiffs-Appellants, v. Wayne W. BOY, Col., District Engineer, Savannah, U.S. Army Corps of Engineers; John H. Zirschky, Acting Assistant Secretary of the Army (Civil Work), et al., Defendants-Appellees.
Docket NumberNo. 97-8872
Decision Date02 July 1998

Page 1446

144 F.3d 1446
28 Envtl. L. Rep. 21,433, 11 Fla. L. Weekly
Fed. C 1531
Richard S. HILL; Derrill M. Maxwell, et al., Plaintiffs-Appellants,
v.
Wayne W. BOY, Col., District Engineer, Savannah, U.S. Army
Corps of Engineers; John H. Zirschky, Acting
Assistant Secretary of the Army (Civil
Work), et al., Defendants-Appellees.
No. 97-8872.
United States Court of Appeals,
Eleventh Circuit.
July 2, 1998.

Page 1447

Gary P. Bunch, Carrollton, GA, for Plaintiffs-Appellants.

Ronald Spritzer, U.S. Dept. of Justice, Washington, DC, for Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before ANDERSON and BIRCH, Circuit Judges, and COHILL *, Senior District Judge.

ANDERSON, Circuit Judge:

In this case, the appellants challenge the United States Army Corps of Engineers' issuance of a section 404 permit under the Clean Water Act, 33 U.S.C. § 1344, for the proposed construction of a reservoir and dam in Carroll County, Georgia. We affirm in part, vacate in part, and remand. Because we conclude that the Corps of Engineers did not adequately consider the potential adverse environmental impact of a petroleum pipeline that crosses underneath the proposed reservoir, we vacate in part and remand to the district court with instructions for the district court to remand the section 404 permitting decision to the Corps of Engineers.

I. FACTS AND PROCEDURAL HISTORY

On August 10, 1994, the United States Army Corps of Engineers ("Corps") issued a section 404 permit under the Clean Water Act ("CWA"), 33 U.S.C. § 1344, 1 to the Carroll County Water Authority ("Water Authority"). The section 404 permit authorized the Water Authority to discharge 320,000 cubic yards of dredged and/or fill material into the waters of Snake Creek and adjoining

Page 1448

wetlands for the construction of an earthen dam and a 650 acre reservoir. 2 The reservoir is proposed to be used as a public water supply and for compatible public recreational activities. In issuing the section 404 permit and approving the project, 3 the Corps prepared an Environmental Assessment ("EA") in which the Corps concluded that

the proposed work will not have significant adverse effects on the quality of the human environment. The proposed action does not constitute a major Federal Action significantly affecting the quality of the human environment; and, therefore, does not require the preparation of a detailed statement under Section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).

In making a "finding of no significant impact" ("FONSI"), and thus deciding not to prepare an environmental impact statement ("EIS"), the Corps assumed that a liquid petroleum pipeline that crosses underneath the proposed Snake Creek reservoir would be relocated by the Water Authority. 4 In the EA for the Snake Creek project, the Corps responded to objections raised by the public, including objections raised by the plaintiffs in the instant case. The Corps stated the objections about the petroleum pipeline and the Corps' responses as follows:

(g) The application indicated that a natural gas pipeline crossed the project area, when in fact the pipeline is a liquid petroleum pipeline. The applicant has indicated that the pipeline would be relocated....

(p)(4) The application did not contain a contingency plan for actions to be taken in the event of a spill from the petroleum line currently located within the project area. This plan is not necessary since the line would be relocated.

(public objections underlined). In the appendix to the EA, entitled "Evaluation For Compliance With 404(B)(1) Guidelines," the Corps stated that "there is a liquid petroleum transfer line passing through the project area. There is no known documentation of any accidental spills from this pipeline. The applicant would be required to relocate this line outside the limits of the project area prior to reservoir impoundment." However, the relocation of the petroleum pipeline was not made a condition of the Water Authority's section 404 permit and the administrative record before the Corps did not indicate that any specific plan of relocation existed.

In May 1995, the appellants, a number of property owners whose homes are located below the proposed dam (hereinafter "the property owners"), filed a four-count complaint against the EPA and the Corps. In Count I, the property owners challenged the Corps' issuance of a section 404 permit to the Water Authority, alleging that the Corps failed to clearly demonstrate that the proposed Snake Creek reservoir was the least environmentally damaging practicable alternative. In Count II, the property owners alleged that the EPA should have vetoed the Corps' issuance of the section 404 permit under section 309(c) of the CWA, 33 U.S.C. § 1344(c). 5 In the third count of their complaint, the property owners alleged that the

Page 1449

Corps failed to prepare an EIS as required under the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4332(2)(C). Finally, in Count IV, the property owners alleged that the Corps' issuance of the section 404 permit was arbitrary, capricious, and otherwise not in accordance with the CWA or its implementing regulations, in violation of the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A). 6

In an August 5, 1996 order, the district court granted the defendants' motion for partial summary judgment and dismissed the property owners' claims (Counts I and II) brought under the citizen suit provision of the Clean Water Act, 33 U.S.C. § 1365(a)(2). 7 In the same order, the district court also entered a protective order prohibiting the property owners from engaging in any discovery and limiting the court's review on Counts III and IV to the administrative record. Subsequently, in a January 30, 1997, order, the district court granted summary judgment to the defendants on Counts III and IV of the property owners' complaint and denied the property owners' motion to remand the section 404 permitting decision to the Corps. The property owners appeal.

II. DISCUSSION

The "object of NEPA is to require federal agencies to consider environmental values when making decisions [and] [t]he initial responsibility of the federal agency is to determine the extent of the environmental impact." C.A.R.E. Now, Inc. v. Federal Aviation Admin., 844 F.2d 1569, 1572 (11th Cir.1988). Section 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C), requires a federal agency to prepare an EIS when a major federal action significantly affects the quality of the human environment. 8 In order to assist federal agencies in determining whether they must prepare an EIS, the

Page 1450

federal Council on Environmental Quality ("CEQ") has issued regulations which provide guidance to the agencies. See Sabine River Auth. v. United States Dep't of Interior, 951 F.2d 669, 677 (5th Cir.1992) (citing Sierra Club v. Marsh, 769 F.2d 868, 870 (1st Cir.1985)). The CEQ regulations direct federal agencies to prepare an EA in order to determine whether the environmental effects of a proposed project are "significant." 40 C.F.R. §§ 1501.3, 1501.4, 1508.9, 1508.27 (1998). Under these regulations, the purpose of an EA is to "[b]riefly provide sufficient evidence and analysis for...

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44 practice notes
  • Center for Biological Diversity v. Nhtsa, No. 06-71891.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • August 18, 2008
    ...to require that it be done under circumstances that ensure an objective evaluation free of the previous taint."); see also Hill v. Boy, 144 F.3d 1446, 1451 (11th Cir.1998) (remanding where agency's failure to prepare an EIS was based on incorrect assumption); Nat'l Audubon Soc'y v. Hoffman,......
  • Ohio Valley Environmental Coalition v. Hurst, Civil Action No. 3:03-2281.
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • March 31, 2009
    ...on mitigation in making a FONSI, however, must be justified. See Sierra Club Florida, 464 F.Supp.2d at 1224; see also Hill v. Boy, 144 F.3d 1446, 1451 (11th Cir.1998) (explaining that where an agency relies on an assumption to reach a FONSI, the assumption must be supported by substantial e......
  • Sierra Club v. Norton, No. CIV.A. 02-258CBC.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Southern District of Alabama
    • June 19, 2002
    ...be avoided only if the agency finds that changes or safeguards in the project sufficiently reduce the impact to a minimum. Hill v. Boy, 144 F.3d 1446 (11th Cir.1998); see also North Buckhead Civic Assn. v. Skinner, 903 F.2d 1533 (11th Cir.1990)(adopting arbitrary and capricious review in al......
  • Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Eng'rs, Case No. 2:15-cv-01893-JEO
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • December 14, 2018
    ...also required by statute to consider the environmental consequences 354 F.Supp.3d 1259of their actions more generally. See Hill v. Boy, 144 F.3d 1446, 1449 (11th Cir. 1998) ; C.A.R.E. Now, Inc. v. Fed. Aviation Admin., 844 F.2d 1569, 1572 (11th Cir. 1988). While not a substantive environmen......
  • Request a trial to view additional results
40 cases
  • Center for Biological Diversity v. Nhtsa, No. 06-71891.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • August 18, 2008
    ...to require that it be done under circumstances that ensure an objective evaluation free of the previous taint."); see also Hill v. Boy, 144 F.3d 1446, 1451 (11th Cir.1998) (remanding where agency's failure to prepare an EIS was based on incorrect assumption); Nat'l Audubon Soc'y v. Hoffman,......
  • Ohio Valley Environmental Coalition v. Hurst, Civil Action No. 3:03-2281.
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • March 31, 2009
    ...on mitigation in making a FONSI, however, must be justified. See Sierra Club Florida, 464 F.Supp.2d at 1224; see also Hill v. Boy, 144 F.3d 1446, 1451 (11th Cir.1998) (explaining that where an agency relies on an assumption to reach a FONSI, the assumption must be supported by substantial e......
  • Sierra Club v. Norton, No. CIV.A. 02-258CBC.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Southern District of Alabama
    • June 19, 2002
    ...be avoided only if the agency finds that changes or safeguards in the project sufficiently reduce the impact to a minimum. Hill v. Boy, 144 F.3d 1446 (11th Cir.1998); see also North Buckhead Civic Assn. v. Skinner, 903 F.2d 1533 (11th Cir.1990)(adopting arbitrary and capricious review in al......
  • Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Eng'rs, Case No. 2:15-cv-01893-JEO
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • December 14, 2018
    ...also required by statute to consider the environmental consequences 354 F.Supp.3d 1259of their actions more generally. See Hill v. Boy, 144 F.3d 1446, 1449 (11th Cir. 1998) ; C.A.R.E. Now, Inc. v. Fed. Aviation Admin., 844 F.2d 1569, 1572 (11th Cir. 1988). While not a substantive environmen......
  • Request a trial to view additional results
4 books & journal articles
  • The Second Theme in Congress' Restructuring of the Federal Water Pollution Control Act: The Addition of Citizen Participation and Citizen Suits
    • United States
    • The Clean Water Act and the Constitution. Legal Structure and the Public's Right to a Clean and Healthy Environment Part II
    • April 20, 2009
    ...suit” because “the content of the standards is certainly at least somewhat discretionary with the EPA”). 66. See , e.g. , Hill v. Boy, 144 F.3d 1446, 1449 n.7, 28 ELR 21433 (11th Cir. 1998) (holding that EPA’s authority to veto the Corps’ §404 permits did not create a mandatory duty that it......
  • Enforcement
    • United States
    • Wetlands Deskbook Part I. Clean Water Act §404 Programs
    • November 11, 2009
    ...that subsection (a)(2) refers to the EPA Administrator, but not the Corps, and so there is no express waiver of immunity); Hill v. Boy, 144 F.3d 1446, 1449 n.7, 28 ELR 21433 (11th Cir. 1998) (following P.E.A.C.H. without further discussion). 231. Northwest , 118 F. Supp. 2d at 1120. son , t......
  • Enforcement
    • United States
    • Wetlands deskbook. 4th edition -
    • April 11, 2015
    ...that subsection (a)(2) refers to the EPA Administrator, but not the Corps, and so there is no express waiver of immunity); Hill v. Boy, 144 F.3d 1446, 1449 n.7, 28 ELR 21433 (11th Cir. 1998) (following P.E.A.C.H . without further discussion). 386. Northwest , 118 F. Supp. 2d at 1120. 387. I......
  • Citizen Suits Against the Federal Government and Tribes
    • United States
    • The Clean Water Act and the Constitution. Legal Structure and the Public's Right to a Clean and Healthy Environment Part II
    • April 20, 2009
    ...1992). 73. Cascade Conservation League v. M.A. Segale, Inc., 921 F. Supp. 692, 696, 26 ELR 21164 (W.D. Wash. 1996). 74. Hill v. Boy, 144 F.3d 1446, 1449 n.7, 28 ELR 21433 (11th Cir. 1998); Preserve Endangered Areas of Cobb’s History, Inc. v. Corps of Eng’rs, 87 F.3d 1242, 1249, 26 ELR 21449......

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