Maryland Native Plant v. U.S. Army Corps, Engin., No. CIV.A. PJM 03-2965.

• Decision Date: 23 July 2004
• Docket Number: No. CIV.A. PJM 03-2965.
• Citation: 332 F.Supp.2d 845
• Parties: MARYLAND NATIVE PLANT SOCIETY, et al. Plaintiffs v. U.S. ARMY CORPS OF ENGINEERS Defendant
• Court: U.S. District Court — District of Maryland

Page 845

332 F.Supp.2d 845

MARYLAND NATIVE PLANT SOCIETY, et al. Plaintiffs v. U.S. ARMY CORPS OF ENGINEERS Defendant

No. CIV.A. PJM 03-2965.

United States District Court, D. Maryland.

July 23, 2004.

COPYRIGHT MATERIAL OMITTED

Benjamin Jeremy Woolery, Esquire, Bowie, Hope Madeline Babcock, Esquire, Lisa Beth Goldman, Esquire, Washington, D.C., for Plaintiffs.

David Jay Kaplan, Esquire, Washington, D.C., John C Fredrickson, Esquire, Greenbelt, for Defendants.

OPINION

MESSITTE, District Judge.

I.

The Maryland Native Plant Society, the Maryland Alliance for Greenway Improvement and Conservation and several individual plaintiffs¹ have sued the U.S. Army Corps of Engineers ("Corps"), the U.S. Environmental Protection Agency and a number of federal government officials in their official capacity.² Plaintiffs challenge a determination of the Corps that the construction of one of the two planned housing developments in Charles County, Maryland, involving the dredging and/or filling of wetlands, is authorized under a general discharge permit the Corps issued to the State of Maryland.³ The developer which sought the Corps' approval, Hunters Brooke, LLC, has been granted Intervenor status. The parties have filed cross Motions for Summary Judgment. Having reviewed the pleadings and heard counsels' oral arguments, the Court GRANTS Plaintiffs' Motion for Summary Judgment insofar as it seeks remand of the case to the Corps so that it may further explicate the reasons for its decision. The Court DENIES Plaintiffs' Motion insofar as it asks the Court to vacate the Corps' decision or to enjoin construction at this time. The Corps' Motion for Summary Judgment as well as that of Hunters Brooke, LLC are DENIED WITHOUT PREJUDICE.

II.

A brief discussion of the statutory and regulatory background will provide an introduction to the Court's analysis:

A. The Clean Water Act:

The Clean Water Act (CWA), 33 U.S.C. § 1251 et seq., is designed "to restore and maintain the chemical, physical and biological integrity of the Nation's water." 33 U.S.C. § 1251(a). Section 404 of the CWA regulates the discharge of dredged or fill material into waters of the United States, including wetlands. 33 U.S.C. § 1344. The CWA gives the U.S. Army Corps of Engineers jurisdiction over activities involving such discharges. Pursuant to § 404, the Corps is empowered to issue individual permits for these discharges under § 404(a), or it may issue general permits for them on a nation-wide, regional or state-wide basis under § 404(e). General permits are used to authorize certain categories of discharge activities when they are similar in nature and will cause only minimal adverse environmental effects, individually and cumulatively. 33 U.S.C. § 1344(e). Once a general permit has been issued, individual activities falling within the categories of activities in the general permit may be authorized (or "verified") under that permit, again so long as their adverse environmental impacts do not exceed minimal levels and so long as they meet the additional restrictions contained in the permit. Id.; 33 C.F.R. § 325.2(e)(2). If an activity does not qualify for authorization under a general permit, the Corps must evaluate it under the individual permit process under § 404(a), the corresponding regulations of which impose a host of additional requirements on the agency.⁴ 33 C.F.R. § 325.2.

The Corps has issued a general permit for the State of Maryland, MDSPGP-2,⁵ which authorizes three categories of discharge activities within the State having "minimal individual and cumulative adverse environmental effects." Category I activities require no application or review by the Corps, although those requiring public notice under State law are given such by the Maryland Department of the Environment (MDE). Fill activities authorized under Category I are subject to a maximum wetland impact limit of 5,000 square feet. Category II activities require an application and review by the Corps to ensure that they comply with the terms of MDSPGP-2. Id. Category III is reserved for those activities that exceed the impact limits and/or terms and conditions of Categories I and II. Category III-B, pursuant to which the Corps authorized the sewer line and road crossing under review in the present case, applies to activities for which a State permit and public notice are required. Activities authorized under this category may not have an impact on more than one acre of wetlands, whether direct, indirect, temporary or permanent. Id. In addition, the activities must be part of a single and complete project that includes all attendant features, both temporary and permanent. Id.

B. National Environmental Policy Act:

The National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., requires every federal agency to take into account the environmental impact of certain proposed actions. Appalachian Power Co. v. Train, 545 F.2d 1351, 1366 (4th Cir.1976). Under NEPA § 102(2)(C), federal agencies must prepare an Environmental Impact Statement (EIS) for any major federal action that significantly affects the quality of the human environment. 42 U.S.C. § 4332(2)(C). The EIS requirement attaches only to major federal actions with significant environmental effects. Hodges v. Abraham, 300 F.3d 432, 438 (4th Cir.2002). In order to determine whether the extensive EIS is required, agencies may choose to first prepare an Environmental Assessment (EA), 40 C.F.R. §§ 1501.3 & 1508.9.

As part of or in addition to the EIS/EA requirement, § 102(2)(E) of NEPA requires federal agencies to "study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources." 42 U.S.C. § 4332(2)(E).

NEPA applies to activities authorized by the Corps under the Clean Water Act. See, 33 C.F.R. Pt. 325, App. B (describing NEPA implementation procedures for the Corps' regulatory program). Whenever the Corps issues an individual permit for a proposed project under § 404(a), or a general permit for categories of activities under § 404(e), it must prepare an EIS or EA pursuant to § 102(2)(C) of NEPA. See 33 C.F.R. § 325.2(a)(4) ("A decision on a permit application will require either an environmental assessment or an environmental impact statement unless it is included within a categorical exclusion."). The Corps says that, once a general permit is in place, when it authorizes an activity under the permit, it prepares no EIS or EA because, by definition, activities under the general permit only have minimal adverse environmental effects. See 33 U.S.C. § 1344(e). These, says the Corps, are subject to a categorical exclusion under 33 C.F.R. § 325.2(a)(4) and 40 C.F.R. § 1508.4. See 40 C.F.R. § 1508.4 (defining "categorical exclusion" as "a category of actions which do not individually or cumulatively have a significant effect on the human environment" for which neither an EA or an EIS required).

It is not entirely clear whether the Corps is obliged to conduct an alternatives analysis per 4223(e) where an EIS or EA is not required. Plaintiffs contend that the Corps must do so and that it should have done so here (it did not) with respect to the activities at issue. The Corps maintains that it fulfills its NEPA obligations when it issues a general permit and thereafter has no obligation to do an alternatives analysis. The Court will return to this matter presently.

III.

Araby Bog comprises nearly seven acres of wetlands in southern Charles County, Maryland, in woods south of Indian Head, near Mattawoman Creek and Route 225.⁶ According to Plaintiffs, it is one of the largest, most pristine examples of a magnolia bog not only in the region, but in the world.⁷ They submit that the Bog is an undisturbed habitat in Maryland for at least one state threatened and many state rare plant species, and that it contains practically no non-native invasive plants. The continued survival of the Bog, say Plaintiffs, depends on its protection and the maintenance of a number of ecological conditions, including its groundwater supply and acidity.

In March 1998, an engineering consulting firm known as ATCS, PLC filed two permit applications with the Corps and Maryland's Department of the Environment, which would occasion the filling, grading and deforesting of more than 50,000 square feet of nontidal wetlands and wetlands buffer. These filings had implications for the Bog. Specifically, the developers proposed to build two unified residential cluster subdivisions, denominated Hunters Brooke and Falcon Ridge. Plans indicated that the Hunters Brooke development would extend to within 100 feet of the Bog, while Falcon Ridge would encompass the Bog itself. Because a sewer line (for both Hunters Brooke and Falcon Ridge) and a road crossing (for Hunters Brooke alone) would require the grading and filling of wetlands, the developers sought a dredge and fill permit from the Corps under § 404 of the CWA, 33 U.S.C. § 1344.

In compliance with its statutory mandate, the Corps notified federal, state and local agencies as well as interested citizens, soliciting their comments. Plaintiffs — two local environmental groups and several owners of land adjacent to the Bog — became early and vocal opponents of the project. During the public review of the dredge and fill application, they submitted reports of numerous ecologists, botanists, geologists and other professionals, warning of the serious adverse effects that Hunters Brooke and Falcon Ridge would inflict on the Bog, both individually and collectively. These experts warned that the mitigation conditions proposed by the Corps in its general permit would be insufficient to protect the Bog from the harmful effects of either or both developments.

The Corps spent some five years reviewing the permit application, generating an administrative record of approximately 4,500 pages. In January...