Hill v. Boy, No. 97-8872

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Writing for the Court: Before ANDERSON and BIRCH; ANDERSON
• Citation: 144 F.3d 1446
• Parties: 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.
• Docket Number: No. 97-8872
• Decision Date: 02 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.

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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

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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

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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

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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...