Orleans Audubon Soc. v. Lee
| Decision Date | 01 October 1984 |
| Docket Number | No. 83-3389,83-3389 |
| Parties | , 15 Envtl. L. Rep. 20,030 ORLEANS AUDUBON SOCIETY, et al., Plaintiffs-Appellants, Sierra Club, Intervenor-Appellant, v. Colonel Robert C. LEE, in his official capacity as District Engineer, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Frank A. Silvestri, Derbes & Derbes, Peter D. Derbes, New Orleans, La., for plaintiffs-appellants.
Carol E. Dinkins, U.S. Dept. of Justice, Washington, D.C., William F. Baity, Asst. U.S. Atty., New Orleans, La., Dirk D. Snel, Arthur E. Gowran, U.S. Dept. of Justice, Washington, D.C., Harless Benthul, U.S.E.P.A., Dallas, Tex., Catherine Winer, U.S.E.P.A., Washington, D.C., for defendants-appellees.
Joseph E. LeBlanc, Jr., New Orleans, La., for C.I.T.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before REAVLEY, JOHNSON and JOLLY, Circuit Judges.
I.
This environmental suit involves a 466-acre tract of cypress-tupelo gum swamp located on the west bank of the Mississippi River in Jefferson Parish, Louisiana. The tract is bounded on the northeast by a residential subdivision known as Lincolnshire, on the west by the Drill Hole Canal, a small artificial canal constructed during the 1960s, and on the east by a levee, on the other side of which runs the Millaudon Canal. The tract is surrounded by levees constructed in 1972 by the owner of the property at that time. In late 1972 or early 1973, the Drill Hole Canal, which previously had been a navigable waterway, was dammed, completing the ring of levees and impounding the tract so that it was no longer subject to tidal motion.
In late 1976 or early 1977, C.I.T. Corporation became the owner of the tract through foreclosure and decided to proceed with the previous owner's plans to convert the tract for residential use by draining and filling the area within the levees. In order to do so, C.I.T. began working with the Corps of Engineers to prepare the environmental impact statement needed to secure an after-the-fact permit for the closure of the Drill Hole Canal. See infra, part B. In late 1979, the Corps discovered two gaps in the levee at the closure of the Drill Hole Canal. After receiving assurance from the Corps that no permits were required for the work, C.I.T. repaired the two gaps.
In 1980, C.I.T. installed a drainage culvert into the levee between the tract and the Lincolnshire subdivision. This culvert permitted gravity drainage from the tract into a drainage canal serving the subdivision. Because the first culvert was ineffective, in 1981 C.I.T. installed a second culvert into the levee at a lower elevation.
The Corps of Engineers first became involved in this case in March 1976, when it received a citizen's complaint that the Drill Hole Canal had been blocked in violation of the Rivers and Harbors Appropriation Act of 1899 (RHA) and federal regulations which require the issuance of a permit for activities which result in the obstruction of navigable waters. Soon after receiving the complaint, the Corps issued a cease and desist order to the developer of the tract (C.I.T.'s predecessor in interest) and ordered the developer to apply for an after-the-fact permit for the canal blockage and for maintenance of the levee system around the tract. After C.I.T. became owner of the tract, it filed the necessary application. The Corps decided that it would have to prepare an environmental impact statement before granting or denying the permit application in order to comply with its responsibilities under the National Environmental Policy Act, Sec. 102, 42 U.S.C. Sec. 4332 (1977).
Between late 1977 and June 1979, the Corps proceeded with the development of an environmental impact statement and took other steps to review C.I.T.'s application. During this time, several federal agencies, including the Environmental Protection Agency, the National Park Service and the United States Fish and Wildlife Service, notified the Corps of their opposition to the granting of the permit and their intention to participate in hearings on the matter.
In the spring of 1979, C.I.T. first inquired of the Corps whether the blockage of the Drill Hole Canal fell within the scope of nationwide permits issued by the Corps in July 1977. These nationwide permits authorize certain classes of activity within the scope of the Corps' jurisdiction to be carried out without an individual project permit. The Corps agreed with C.I.T. that its activities were authorized by the nationwide permit and did not require an individual permit. In September 1979, the Corps advised C.I.T. that its proposed repair of gaps in the levees surrounding the tract was also authorized by the nationwide permits.
In early 1980, Orleans asked the Corps to reconsider its two decisions regarding the applicability of nationwide permits. The Corps considered Orleans' arguments and consulted with personnel of the Environmental Protection Agency before deciding, after almost one year, to stand by its determinations that the canal blockage and levee repair were authorized by the nationwide permits. During this period of reconsideration, the Corps inspected, also at Orleans' request, the installation of the two drainage culverts in the tract's northeast levee. The Corps engineer who inspected the site reported that the installation did not involve any work upon the wetlands in the interior of the tract, nor did it result in the depositing of dredged or fill material into the wetlands. The Corps concluded that it had no basis to assert jurisdiction over the culvert installations.
Orleans filed this suit in June 1981, seeking declaratory and injunctive relief from the Corps' decision that C.I.T. was not subject to individual permit requirements for three activities: the blockage of the Drill Hole Canal, the repair of levees around the tract and the installation of culverts to drain the tract. One year later, the plaintiffs 1 filed a motion for partial summary judgment, arguing that permits were required as a matter of law for installation of the two drainage culverts. The defendants 2 countered with motions to dismiss the complaint or, in the alternative, for summary judgment on all issues raised by the plaintiffs. The district court, after a hearing, granted the defendants' motions and dismissed the complaint, holding that none of the decisions not to require permits was arbitrary or capricious. The plaintiffs now appeal the judgment of the district court.
II.
Orleans concedes that we normally must review discretionary decisions of the Corps under the arbitrary and capricious standard, and it concedes that decisions not to require permits for actions by private developers, such as those at issue here, are usually considered to be discretionary. Despite these admissions, Orleans argues that we should review the first of the three decisions challenged in this case more closely because "a successor agency head [has], without any apparent valid reason, alter[ed] a three year old, apparently valid exercise of authority by his predecessor ...." 3 The issues before this court, then, are (1) what standards of review to apply, and (2) whether the three challenged agency-decisions are reversible under the appropriate standards of review. Before discussing these issues, however, we shall canvass some of the statutes and regulations governing the Corps' decisions.
III.
Orleans argues that there are two statutory schemes under which the Corps should have exercised its authority to require permits for the enclosure and drainage of the C.I.T. tract: the Federal Water Pollution Control Act, as amended in 1977, popularly known as the Clean Water Act (CWA), and the RHA. 4
The Corps possesses regulatory authority relevant to this case granted by the Clean Water Act, which, in general, prohibits the discharge of pollutants into the navigable waters of the United States except in compliance with the CWA's terms. 5 Clean Water Act, Secs. 301(a), 502(12), 33 U.S.C. Sec. 1311(a), 1362(12) (1978). The Act authorizes the Secretary of the Army, acting through the Chief of Engineers, to "issue permits, after notice and opportunity for public hearings[,] for the discharge of dredged or fill material into the navigable waters at specified disposal sites," and to issue nationwide permits for some classes of activity. Clean Water Act, Sec. 404(a), (e), 33 U.S.C. Sec. 1344(a), (e) (1978). 6 In July 1977 the Corps enacted the nationwide permit regulations on which the Corps relied in this case to exempt the blockage of the Drill Hole Canal from individual permit requirements under the CWA. Those regulations provided for a phase-in of the individual permit requirements to wetlands and non-navigable waters. 7 Discharges into wetlands or non-navigable waters prior to the phase-in dates were not subject to individual permit requirements if they did not violate certain health and environmental restrictions, subject to the Corps' reservation of discretionary authority to require an individual permit if the circumstances "indicate the need for such action because of ... adverse impacts to the affected waters," 33 C.F.R. Secs. 323.4-1(a), 323.4-4 (1977), superseded, see 47 Fed.Reg. 31,800 (1982). In addition to its authority to require individual permits for the depositing of dredged or fill material in navigable waters, the Corps may bring suits for injunctive and punitive relief for violations of permits issued under section 404. 33 U.S.C. Sec. 1344(s) (1978). The Corps' 1977 regulations allowed district engineers to require an after-the-fact permit rather than bring suit if "the unauthorized activity does not warrant legal action." 33 C.F.R. Sec. 326.5 (1977). 8
Orleans has also asserted claims relating to the Corps' regulatory authority under the Rivers and Harbors Act. Section 10 of the RHA...
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