National Wildlife Federation v. Hanson

• Decision Date: 20 December 1985
• Docket Number: No. 83-1288-CIV-5.,83-1288-CIV-5.
• Citation: 623 F. Supp. 1539
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: NATIONAL WILDLIFE FEDERATION, et al., Plaintiffs, v. Colonel Wayne A. HANSON, et al., Defendants.

623 F. Supp. 1539

NATIONAL WILDLIFE FEDERATION, et al., Plaintiffs, v. Colonel Wayne A. HANSON, et al., Defendants.

No. 83-1288-CIV-5.

United States District Court, E.D. North Carolina, Raleigh Division.

December 20, 1985.

Katherine P. Ransel, Nicholas C. Yost, Center for Law in the Public Interest, Washington, D.C., Derb S. Carter, Jr., Raleigh, N.C., for National Wildlife Fed. et al.

S. Henri Johnson, New Bern, N.C., for N.C. Fisheries Ass'n, Inc.

Suellen T. Keiner, Washington, D.C., for E.P.I.

W.B. Carter, Jr., Carter, Archie & Hassell, Washington, N.C., for Prulean Farms.

W.B. Carter, Jr., Carter, Archie & Hassell, Washington, N.C., Daniel K. Mayers, Andrea Timko Sallet, Wilmer, Cutler & Pickering, Washington, D.C., for Peat Methanol Associates.

H. Robert Showers, Asst. U.S. Atty., Raleigh, N.C., and Jean A. Kingrey, Special Litigation Counsel, Land & Natural Resources Div., U.S. Dept. of Justice, Washington, D.C., for defendants Hanson, Marsh, Gianelli, Bratton, Ruckelshaus and Jeter.

MEMORANDUM OPINION

BRITT, Chief Judge.

This action was brought under § 505 (citizens' suit provision) of the Clean Water Act (CWA) to challenge a determination by the United States Army Corps of Engineers (Corps) that a particular tract of land in eastern North Carolina was not a "wetland" under § 404 of the CWA and, therefore, not subject to the regulatory authority of the Corps. 33 U.S.C. § 1365 and § 1344. Plaintiffs are National Wildlife Federation, Environmental Policy Institute, North Carolina Wildlife Federation, Pungo River Association, Stumpy Point Civic Club, the Pamlico-Tar River Foundation, Conservation Council of North Carolina, Inc., and North Carolina Fisheries Association, Inc. Defendants are Colonel Wayne A. Hanson, in his official capacity as Wilmington District Engineer; John O. Marsh, in his official capacity as Secretary of the United States Department of the Army; William R. Gianelli, in his official capacity as Assistant Secretary of the United States Department of the Army; Lieutenant General Joseph K. Bratton, in his official capacity as the Chief of Engineers of the United States Army Corps of Engineers; William D. Ruckelshaus, in his official capacity as Administrator of the United States Environmental Protection Agency; and Charles R. Jeter, in his official capacity as Regional Administrator of the United States Environmental Protection Agency (federal defendants). First Colony Farms, Inc. (FCF), the owner of the land in question, and Peat Methanol Associates (PMA), having an interest in developing it, were allowed to intervene as defendants (private defendants). Currently before the court are motions for summary judgment filed by plaintiffs and the federal and private defendants. Oral argument having been held, they are now ripe for disposition.

I — FACTS AND PRIOR PROCEEDINGS

The allegations of Count I of the amended complaint concern a tract of land containing approximately 32,750 acres located in Tyrell, Hyde and Washington Counties in North Carolina (Tract I).¹ Tract I is a part of a large expanse of land lying in a peninsula formed by Albemarle Sound, Pamlico Sound and the Alligator River. These large sounds — bodies of water separated from the Atlantic Ocean by the thin finger of land known as North Carolina's famous "Outer Banks" — provide drainage for Tract I and other similar lands in the eastern part of the state.

Tract I itself lies south of Phelps Lake and east of New Lake. Historically, the area was considered a forested swamp, useful solely for timber production. Periodic efforts have been made over the years — beginning as early as 1787 — to utilize the property for other purposes, such as cattle and row-crop farming. These efforts have centered around the use of drainage canals to lower the natural water table. New Lake Canal and Pungo Lake Canal were completed in 1843, but most of the canals now in place were apparently constructed after 1970. Just how successful these previous farming ventures were is uncertain. It does appear, however, that when those efforts were abandoned the property quickly reverted to its former character.

Tract I is owned by FCF. PMA is a general partnership organized for the primary purpose of constructing and operating a peat-to-methanol synthetic fuel plant on Tract I. Peat for this process will be provided from the large deposits appearing on Tract I. Although FCF originally sought to mine peat from the entire tract, a permit issued by the North Carolina Department of Natural and Economic Resources on 21 February 1980 only allows FCF to mine peat on a 15,000-acre site on Tract I.

In order to mine peat on Tract I, excess water from the property must be drained through the construction of further drainage ditches and the use of pumps. In order to accomplish this task, PMA has applied for a state permit to pump three million gallons of ground water per day from the mining site. Once the soil is adequately drained, the vegetation will be removed and the surface tilled and sloped, to facilitate further drainage. The peat will then be removed through the use of sod machines and squeezed through a tube to create long cylindrical shapes. The peat, when formed into these cylindrical shapes, will be laid on the land surface to dry until ready for use in the peat-to-methanol plant to be built on Tract I.

The Corps consulted with FCF about its peat mining operations in late 1974, when FCF's plans were still confined to an upland area, not the subject of this litigation. In 1976, and again in April of 1978, the Corps advised FCF that expansion of its operations into new areas would necessitate a permit under § 404 since the proposed areas were probably wetlands within the Corps' jurisdiction.

During the spring of 1979, FCF began to solidify its plans to expand its peat mining into Tract I. In April of 1979, a member of the Corps inspected the proposed site on Tract I and advised FCF that some parts of its operations would "definitely" require a § 404 permit while a determination as to whether the whole operation would necessitate a permit required "further in-depth study" of the mining operations and "aerial photography possibly of the vegetation currently existing." FCF was further advised to request in writing a wetlands determination and to provide the Corps with further information about its operations.

On 3 July 1979, FCF formally asked the Corps to determine whether a § 404 permit was required for its proposed expanded operations. Following this request, the Corps visited Tract I on 15 July 1979, observed a small mining operation in progress, and took a "cross-country tour" of the proposed mining site. The actual extent of this tour is unclear. The document memoralizing this visit notes that the vegetation included "shrubs" typically "pocosin" on the easternmost portion and that the large drainage ditches which bisect the area indicate "that the ground water level is considerably below the surface."²

On 15 August 1979, the Corps again visited the proposed mining site on Tract I and took another cross-country tour of uncertain detail. The Corps concluded that "vegetation typically found on a bog or pocosin area was prevalent and dominant throughout the majority of the mining area." Nevertheless, the Corps determined that the vegetation alone was not a "sufficient indicator of wetlands that would fall under the Corps' jurisdiction" since the drainage network "most likely" had lowered the water table and dried the upper layers of soil. The Corps further stated:

this determination that the area is a non-404 wetland carries one stipulation — that the site should be revisited during the late winter or early spring after a significant rainfall to determine then if the soils were saturated to the point of possibly reclassifying the area. It should be stressed that in an area with similar vegetation but without the extensive drainage that this area exhibits would be a very good candidate for inclusion under the Corps' jurisdiction.

The Corps did not appear to be fully satisfied with this preliminary conclusion, however. On 15 August 1980, Colonel Robert K. Hughes, then District Engineer of the Corps' Wilmington District, wrote a memorandum to Corps Headquarters in Washington, D.C., discussing problems the Corps was having in determining which areas of FCF's landholdings were "wetlands" under § 404. Colonel Hughes gave particular emphasis to the difficulties involved in making these determinations because of the extensive canals present on the property. He noted that the Wilmington office had requested the Division Engineer and the Regional Administrator of EPA to initiate a joint technical review board pursuant to "Memorandum of Understanding: Geographical Jurisdiction of the § 404 Program." 45 Fed.Reg. 45,018 (1980).

Subsequently, on 26 August 1980, a meeting was held in Washington, D.C., at which time a decision was made not to convene a technical review board since there was apparently "not (sic) Corps/EPA technical disagreement." Further, a decision was made that the Corps would send a letter to FCF advising it that Tract I did not constitute "wetlands" under the § 404 permit program. This letter was sent to FCF on 15 September 1980.

Although the record is sketchy, it appears that the Corps made at least two visits to Tract I following this wetlands determination. On 13 March 1982, a Corps staff member visited the property primarily to determine whether a methanol pipeline could be constructed on Tract I under an applicable nationwide permit. During May of 1983, a Corps member also visited the site for an undisclosed purpose. No notes or memoranda were prepared on this visit.

Sometime after the Corp's determination, in a letter dated 2 August 1983, the United States Fish and Wildlife Service requested the Corps to reconsider its position and exercise jurisdiction over Tract I. The Fish and Wildlife Service based this request, in...