Mobile Baykeeper, Inc. v. U.S. Army Corps of Eng'rs
| Decision Date | 16 October 2014 |
| Docket Number | CIVIL ACTION 14-0032-WS-M |
| Parties | MOBILE BAYKEEPER, INC., Plaintiff, v. U.S. ARMY CORPS OF ENGINEERS, et al., Defendants, PLAINS SOUTHCAP INC., Intervenor-Defendant. |
| Court | U.S. District Court — Southern District of Alabama |
This matter comes before the Court on a series of interlocking cross-motions for summary judgment, including the following: Plaintiff's Motion for Summary Judgment (doc. 38), the Cross-Motion for Summary Judgment (doc. 43) filed by the U.S. Army Corps of Engineers, Lt. General Thomas P. Bostick and Col. Jon J. Chytka, and the Motion for Summary Judgment (doc. 45) filed by intervenor-defendant Plains Southcap Inc. All three Motions have been extensively briefed and are now ripe for disposition.
This action arises from Plains Southcap's construction of a 24-inch crude oil pipeline over a span of 41 miles, from the Ten-Mile Terminal, located approximately 11 miles northwest of downtown Mobile, Alabama, extending southwest to the Chevron Refinery in Pascagoula, Mississippi, approximately one mile from the Gulf of Mexico. An 18-mile portion of that pipeline project was to be built in Mobile County, Alabama.1 That portion of the pipeline project was designed to traverse the Big Creek Lake watershed, and to include multiple crossings ofHamilton Creek, a major tributary of Big Creek Lake.2 In January 2013, the U.S. Army Corps of Engineers (the "Corps") issued 14 verifications for the Alabama portion of the pipeline, thereby verifying that Nationwide Permit 12 ("NWP 12") applied to those proposed discharges of dredged and fill material, and authorizing construction to proceed under the Clean Water Act ("CWA"). Later that year, Plains Southcap began constructing the pipeline in the Big Creek Lake watershed.
On January 24, 2014, plaintiff, Mobile Baykeeper, Inc. ("Baykeeper"), commenced this action against the Corps and two of its officials, Lt. General Thomas P. Bostick and Col. Jon J. Chytka (collectively, the "Corps Defendants"). Baykeeper alleged that the Corps' verification of the pipeline project routing through the Big Creek Lake - Hamilton Creek watershed violated the CWA, the Administrative Procedure Act ("APA"), and applicable rules and regulations because (i) the Corps failed to consider General Condition 7, relating to proximity to public water supply intakes; (ii) the Corps failed to consider the cumulative impacts of the pipeline route in this watershed; and (iii) the Corps failed to consider whether routing the pipeline through the watershed would be contrary to the public interest. (Doc. 1, ¶¶ 50-68.) On that basis, Baykeeper requested that the Court declare the Corps' verifications of the Alabama segment of the pipeline under NWP 12 to be null and void, enjoin Plains Southcap from conducting any activities in reliance on those verifications, and enjoin the construction and operation of the pipeline until the Corps Defendants comply with the CWA and the APA. Plaintiff did not seek a temporary restraining order or preliminary injunction. On February 13, 2014, the Court entered an Order (doc. 15) granting Plains Southcap's motion to intervene as a party defendant.
Now, all parties have moved for summary judgment on this matter in its entirety.
On September 12, 2012, Plains Southcap caused to be submitted to the Corps a pre-construction notification ("PCN") for the Alabama portion of the pipeline, whereby it requestedauthorization under NWP 12 to construct the project. (AR 2-3.)3 The PCN (which included maps showing the proposed pipeline locations, as well as adjacent wetlands, streams, and other topographic features) explained that construction of the pipeline would be within a 75-foot right-of-way, and would consist of clearing vegetation, excavating a trench, laying the pipe, replacing soil, adjusting topography, and re-establishing vegetation, with a permanent 50-foot easement. (AR 4.) Plains Southcap notified the Corps of its environmental consultants' opinion that "[b]ased on our regulatory analysis, the proposed project could be constructed under the conditions of NWP 12 with submittal of a PCN." (AR 61.)
After several months of back-and-forth discussions and supplementation of information by Plains Southcap (including detailed documentation concerning topics such as impacts on gopher tortoises, bald eagles and sites containing cultural artifacts), the Corps issued a "Decision Document" for the Alabama pipeline PCN on January 17, 2013. The Decision Document noted that the project "will require temporary trenching of 22 stream crossings, impacting 389 linear feet of stream bottoms, and the mechanized land-clearing, temporary trenching and side-casting of fill, and temporary and permanent conversion of bottomland hardwood wetlands to shrub-scrub and emergent wetlands within 40.42 acres of wetlands located within 107 wetland polygons along the pipeline corridor in Alabama." (AR 1005.) It further observed that "[a]ll wetland and stream impacts are temporary except for the permanent conversion of forested wetlands to non-forested wetlands." (AR 1005-06.)
The Decision Document issued verification for the project under NWP 12, subject to certain enumerated conditions. One such condition provided that "[m]aterial resulting from trench excavation may be temporarily side cast into waters of the United States for no more than three months, and must be placed and stabilized in such a manner that it will not be dispersed by currents or other forces." (AR 1007.) Another condition obligated Plains Southcap to purchase 25.92 bottomland hardwood wetland mitigation credits from an approved Alabama wetland mitigation bank. (AR 1008.) The Corps further required Plains Southcap to restore alltemporary impacts to waters of the United States to their pre-impact elevation, contours and ecological condition, except where otherwise noted, with annual monitoring reports to be submitted for a period of five years. (Id.) Plains Southcap was forbidden from disposing of trees, brush or other debris in any stream corridor, wetland or surface water, and was likewise barred from discharging sewage, oil, refuse or other pollutants into the watercourse. (AR 1009.)
The Decision Document, which was authored by Corps Team Leader Michael B. Moxey, concluded as follows: "I have reviewed the proposed project and determined that the work will result in minimal individual and cumulative adverse effects on the aquatic environment." (AR 1011.) Also in that Decision Document, Moxey certified that "[t]his project complies with all terms and conditions of the NWP's including any applicable Regional Conditions." (Id.)
On January 18, 2013, the Corps sent a letter to Plains Southcap, verifying that the Alabama portion of the pipeline is authorized by NWP 12 and providing 14 separate NWP 12 verifications (each one covering all impacts and crossings over a waterbody and adjacent wetlands at a single location). (AR 1012-16.) Those verifications were to remain valid for two years and were subject to all terms and conditions associated with NWP 12, as well as certain special conditions enumerated by the Corps.4
As verified by the Corps, the Plains Southcap project called for the pipeline to be constructed at distances of less than one mile from Big Creek Lake, the public drinking water supply for approximately 200,000 people in the Mobile area. The pipeline would also pass within approximately two miles of the S. Palmer Gaillard Pumping Station, the public water supply intake on Big Creek Lake. And the pipeline would cross Hamilton Creek, a tributary of Big Creek Lake, multiple times during its routing through lower Alabama. (AR 1020-21.) Although the Administrative Record is voluminous, all parties concur that it lacks any showing that the Corps considered the proximity of the pipeline to the public water supply intake in issuing the NWP 12 verifications. There is likewise no dispute that the Corps neglected to make any determination that allowing thepipeline to pass so close to the public water supply intake would serve the public interest. Such concerns lie at the core of Baykeeper's lawsuit.
On February 10, 2014 (barely two weeks after Baykeeper filed suit), Plains Southcap notified the Corps in writing that it had modified the pipeline design to utilize horizontal directional drilling ("HDD") techniques for certain stream crossings in the Hamilton Creek watershed. (Doc. 34-1, at 1-2.) Plains Southcap explained that these modifications were being implemented to "minimize any adverse impacts from construction." (Id. at 2.) On that basis, Plains Southcap requested re-verification from the Corps "that the Project is authorized under NWP 12, in light of these new efforts to further minimize impacts in the area of the Hamilton Creek watershed." (Id.) On February 28, 2014, the Corps responded to Plains Southcap that (Doc. 34-2, at 1.)5
It is undisputed, however, that even with the aforementioned modifications, "some permitted activities in the Hamilton Creek watershed remain." (Doc. 43, at 11.) The Corps acknowledges that when Plains Southcap excavated trenches for the pipeline that crossed wetlands, the associated removal of vegetation and temporary discharge of dredged or fill material into wetlands was subject to the Corps' regulatory authority under § 404 of the CWA. (Id. at 11-12.) Likewise, Plains Southcap characterizes its modifications to the project as "elim...
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