National Wildlife Federation v. Marsh
| Decision Date | 19 December 1983 |
| Docket Number | No. 83-8193,83-8193 |
| Parties | , 14 Envtl. L. Rep. 20,172 NATIONAL WILDLIFE FEDERATION, et al., Plaintiffs-Appellants, v. John O. MARSH, Secretary of the Army, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Benjamin H. Terry, Michael Jablonski, Atlanta, Ga., Emmett B. Lewis, Washington, D.C., for plaintiffs-appellants.
Robert D. Daniel, Dept. of Justice, Washington, D.C., Jimmy J. Boatright, M. Theodore Solomon, II, Alma, Ga., James Stokes, Atlanta, Ga., for defendants-appellees.
Appeal from the United States District Court for the Southern District of Georgia.
Before KRAVITCH and JOHNSON, Circuit Judges, and LYNNE *, District Judge.
This is an appeal from a denial of preliminary injunctive relief by the District Court for the Southern District of Georgia. Appellants 1 seek to prohibit the release of funds by the Department of Housing and Urban Development ("HUD"), the expenditure of funds already released, and any other action in furtherance of the construction of Lake Alma, a man-made 1,400 acre lake in Bacon County, Georgia.
Appellants challenge the lawfulness of HUD's 1982 decision to release the funds for the Lake Alma Project and the Army Corps of Engineers' ("Corps") grant of a permit pursuant to Sec. 404 of the Federal Water Pollution Control Act, as amended by the Clean Water Act, 33 U.S.C. Sec. 1344, for construction of the dam for the lake.
In releasing the funds, HUD waived a regulation requiring that the project for which funds are issued must "principally benefit" persons of low and moderate income. Appellants contend (1) that the governing statute, 42 U.S.C. Secs. 5301-5320, requires that over fifty percent of the persons benefited by funding issued thereunder be of low and moderate income and (2) that the Deputy Assistant Secretary of HUD had no authority to waive this requirement. Appellees argue and the district court held that the statute does not impose a requirement of fifty percent benefit to low and moderate income persons; that the fifty percent directive is regulatory only, see 24 C.F.R. Sec. 570.302(b)(1), (d)(2) (1983); and that, therefore, the provision may be waived pursuant to 24 C.F.R. Sec. 570.4. 2 Alternatively, appellants claim that even if the requirement is regulatory only, waiver of the regulation was arbitrary, capricious, and an abuse of discretion.
Appellants next argue that a supplemental environmental impact statement ("SEIS") was required before HUD or the Corps could release the funds or grant the Sec. 404 permit because modifications in the plans subsequent to issuance of the final environmental impact statement ("EIS") would have a significant impact on the environment. Finally, they contend that the Corps acted unlawfully in granting a Sec. 404 permit for the primary project prior to determining whether additional permits would be necessary for the modifications of the plan on which environmental approval for the entire plan is conditioned, and, if the additional permits are needed, prior to issuance of such permits.
The district court rejected each of appellants' claims, ruled that there was no substantial likelihood of success on the merits, 3 and denied the preliminary injunction as well as a stay pending appeal. A panel of this court granted a temporary stay pending appeal. We affirm in part, reverse in part and remand for further proceedings. 4
In 1968 the City of Alma ("Alma") was selected to participate in the Model Cities Program, pursuant to the Demonstration Cities and Metropolitan Development Act of 1966, 42 U.S.C. Secs. 3301-3374. Alma formulated its plan under the program centered around four cornerstone projects: (1) development of an air/rail industrial park, (2) improvement of water and sewage treatment facilities, (3) improvements to the airport, and (4) the construction of a reservoir on Hurricane Creek, now referred to as Lake Alma and the subject of this litigation. Alma secured funding for and completed the first three of the four cornerstone projects. Other community development projects, such as a residential community for the elderly and a recreation park, were constructed on the expected shoreline of the lake.
In 1971 HUD released funds for a feasibility study on the Lake Alma project and, in 1972, funds for preliminary engineering work. Additional funds were appropriated in 1973. In the same year a lawsuit was filed by plaintiffs challenging the project on the grounds that an EIS was required. Deen v. Lynn, CV No. 861 (S.D.Ga. Sept. 20, 1973). The suit was dismissed when HUD undertook preparation of an EIS. In 1974 HUD issued a draft EIS for the Alma project. Because the EIS engendered a substantial amount of criticism, it was withdrawn.
In the meantime, Congress had enacted the Housing and Community Development Act of 1974 ("Act"), 42 U.S.C. Secs. 5301-5320. Alma sought funding for the Lake Alma project under this Act and, pursuant thereto, assumed HUD's responsibility for ensuring compliance with all applicable environmental requirements.
Under the Act, in particular the Community Development Block Grant Program, HUD allocated funds for the Lake Alma project in fiscal years 1975 through 1979. The release of these funds, however, was conditioned upon the completion of an EIS for the project. Alma issued a final EIS in December, 1976, and submitted it to HUD in March, 1977, together with a request for release of the allocated funds.
By a letter dated March 24, 1977, the Deputy Assistant Secretary of the Interior informed the Mayor of Alma and HUD that the Department of the Interior opposed the project on environmental grounds. The Deputy Assistant Secretary stated that the Fish and Wildlife Service ("FWS") also objected to the project. On the same day the Deputy Administrator of the Environmental Protection Agency ("EPA") registered that agency's objections to the Lake Alma project. The next day a lawsuit was filed challenging HUD's funding of the project. Hurricane Creek Protective Society v. Bacon County, Georgia, CV No. 577-16 (S.D.Ga. March 25, 1977).
The Assistant Secretary of HUD informed Alma on April 4, 1977, that serious objections to the project had been raised and that Alma should consider withdrawing its request for the release of funds. Alma declined to do so. HUD considered the merits of the application and, after consultation with all federal agencies involved, refused to release the funds. HUD informed Alma of the decision on August 10, 1977.
Alma requested that HUD conduct an administrative hearing and filed a cross-claim in the pending lawsuit seeking to compel HUD to release the funds. The lawsuit was dismissed, without prejudice, for want of prosecution in June, 1980, due to an agreement among the litigants that Alma would obtain a Sec. 404 permit from the Corps before proceeding further with the project.
The Corps issued the Sec. 404 permit in November, 1981. HUD reinstituted review of the Lake Alma project, receiving comments from certain interested parties. On January 20, 1982, HUD informed Alma it was considering funding the project on the condition that Alma certify satisfaction of four requirements: (1) that the EIS had been reviewed and, if necessary, revised, (2) that the project would principally benefit low- and moderate-income persons, (3) that the use of the lands acquired was in compliance with the applicable comprehensive open space plan, and (4) that the project description remained unchanged from the most recently approved HUD application.
In February, 1982, Alma responded and submitted documents declaring that all four of the requirements were satisfied. Upon review, HUD's Atlanta Area Office ("HUD-Atlanta") determined that Alma had satisfied the first, third and fourth conditions, but not the second. HUD-Atlanta found that, under the best assumptions, the project might barely qualify as principally benefiting low- and moderate-income persons but that, under more realistic assumptions, the project would not qualify. HUD-Atlanta therefore recommended to the Assistant Secretary of HUD that the funds not be released.
Upon review of HUD-Atlanta's report and recommendation, the Deputy Assistant Secretary agreed with the findings therein but refused to follow HUD-Atlanta's recommendation. Rather, the Deputy Assistant Secretary waived the principal benefit requirement on the grounds that to do otherwise would result in undue hardship and would frustrate the purpose of the block grant statute. He directed HUD-Atlanta to inform Alma that the funds would be released.
As required by the agreement of the litigants in the second lawsuit, Alma applied to the Corps for a Sec. 404 permit for the discharge of dredged and fill material. Public notice was issued and a public hearing was held with approximately 550 persons in attendance.
Supporters of the project included several state agencies and officials: the Governor of Georgia; the Georgia Department of Natural Resources ("DNR"); the Georgia State Clearing House; and the Southeast Georgia Area Planning and Development Commission. Opponents included nearly all federal agencies involved with conservation and environmental issues: the EPA; the Executive Office of the President, Counsel on Environmental Quality ("CEQ"); FWS; and the Bureau of Outdoor Recreation ("BOR"). Other opponents included: The Sierra Club; the National Wildlife Federation; the Georgia Wildlife Federation; the Georgia Conservancy; the Atlanta Audubon Society; the Georgia Ornithological Society; and the Hurricane Creek Protective Society.
After thorough analysis, the Corps' District Engineer for the Savannah District recommended to the Divisional Engineer for the South Atlantic...
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