Pamlico-Tar River Foundation v. U.S. Army Corps of Engineers

• Decision Date: 06 August 2004
• Docket Number: No. 4:02-CV-53-H(4).,4:02-CV-53-H(4).
• Citation: 329 F.Supp.2d 600
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: PAMLICO-TAR RIVER FOUNDATION, Plaintiff, v. U.S. ARMY CORPS OF ENGINEERS; Colonel James Deloney, U.S. Army Corps of Engineers, Wilmington District; LT. General Robert B. Flowers, U.S. Army Corps of Engineers; United States Environmental Protection Agency; Jimmy Palmer, Regional Administrator, Region IV, U.S. EPA, Mike Leavitt, Administrator, U.S. EPA; and PCS Phosphate Company, Inc., Defendants.

329 F.Supp.2d 600

PAMLICO-TAR RIVER FOUNDATION, Plaintiff, v. U.S. ARMY CORPS OF ENGINEERS; Colonel James Deloney, U.S. Army Corps of Engineers, Wilmington District; LT. General Robert B. Flowers, U.S. Army Corps of Engineers; United States Environmental Protection Agency; Jimmy Palmer, Regional Administrator, Region IV, U.S. EPA, Mike Leavitt, Administrator, U.S. EPA; and PCS Phosphate Company, Inc., Defendants.

No. 4:02-CV-53-H(4).

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

August 6, 2004.

COPYRIGHT MATERIAL OMITTED

Derb S. Carter, Chapel Hill, NC, for Pamlico-Tar River Foundation, plaintiff.

R.A. Renfer, Jr., Asst. U.S. Attorney, Office of U.S. Attorney, Raleigh, NC, George William House, Brooks, Pierce, McLendon, Humphrey & Leonard, V. Randall Tinsley, Brooks, Pierce, McLendon, Humphrey & Leonard, Greensboro, NC, for U.S. Army Corps of Engineers, James Deloney, Colonel, U.S. Army Corps of Engineers, Wilmington District, Robert B. Flowers, Lt. General, U.S. Army Corps of Engineers, United States Environmental Protection Agency, Jimmy Palmer, Regional Administrator, Region IV, U.S. EPA, Christine. Whitman, Administrator, U.S. EPA, PCS Phosphate Company, Incorporated, defendants.

ORDER

MALCOLM J. HOWARD, District Judge.

This matter is before the court on plaintiff's motion for summary judgment, defendant PCS Phosphate Company, Inc's. ("PCS") motion for summary judgment, and federal defendants¹' motion for summary judgment. Responses and replies have been filed. Also before the court is plaintiff's motion to amend the scheduling order and to supplement the record. Defendant PCS responded to plaintiff's motion, and plaintiff replied, although federal defendants did not respond. In addition, this court held a hearing in this matter on July 20, 2004. Therefore, this matter is ripe for adjudication.

STATEMENT OF THE CASE

Plaintiff Pamlico-Tar River Foundation ("PTRF") filed this action on April 4, 2002, under the Clean Water Act ("CWA"), 33 U.S.C. § 1251, et seq., and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706. Plaintiff challenges the issuance of a permit by defendant U.S. Army Corps of Engineers ("the Corps") to defendant PCS, authorizing PCS to discharge dredged materials into 1,263 acres of wetlands owned by PCS in Beaufort County, North Carolina, in connection with PCS's mining and manufacturing activities.

Count One of the complaint alleges that the Corps violated the CWA by failing to consider practicable alternatives to the permitted action, and that defendant United States Environmental Protection Agency ("EPA") violated the CWA by not properly reviewing and vetoing the permit. Count Two alleges that the Corps violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4332, by failing to consider reasonable alternatives to the permitted action. Count Three alleges that the Corps also violated NEPA by failing "to fully assess the range of cumulative and foreseeable impacts from actions connected to the proposed activity." Compl. ¶¶ 58-59. Plaintiff requests declaratory and injunctive relief.

On May 22, 2003, the federal defendants moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(1) and (6), arguing that plaintiff lacks standing to bring this action, and that Count One of the complaint fails to state a claim for which relief may be granted. The following day, PCS submitted its own motion to dismiss pursuant to the same rules, asserting the federal defendants' sovereign immunity, plaintiff's lack of standing, and plaintiff's failure to state a claim in all counts of the complaint.² Defendants' motions to dismiss were denied by this court's order filed August 13, 2003.

STATUTORY AND REGULATORY AUTHORITY

I. Clean Water Act

The Clean Water Act (CWA) establishes a comprehensive program to "restore and maintain the chemical, physical and biological integrity of the nation's waters." 33 U.S.C. § 1251(a). Consistent with this goal, the CWA prohibits the "discharge of any pollutant" into "navigable waters³" unless authorized by CWA permit. 33 U.S.C. § 1311(a).

Section 404(a) of the CWA, 33 U.S.C. § 1344(a), authorizes the Secretary of the Army, acting through the Corps of Engineers, to issue permits allowing the discharge of dredged or fill materials into "navigable waters." The Section 404 permit process is governed both by Corps regulations, 33 C.F.R. parts 320-330, and by EPA regulations, 40 C.F.R. Part 230, issued pursuant to Section 404(b)(1) of the CWA. 33 U.S.C. § 1344(b)(1).

Under the Section 404(b)(1) guidelines issued by EPA, the Corps must consider a number of factors, including whether there are practicable alternatives to the proposed discharge. The Corps must deny a permit for the discharge of dredged or fill material into wetlands if "there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences." 40 C.F.R. 230.10(a). An alternative is "practicable" if "it is available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purpose." 40 C.F.R. 230.10(a)(2).

Under 33 C.F.R. § 320.4(a)(1), the Corps conducts a "public interest review" of all permit applications, evaluating "the probable impacts, including cumulative impacts, of the proposed activity and its intended use on the public interest." The Corps balances "benefits which reasonably may be expected to accrue from the proposal" against the proposal's "reasonably foreseeable detriments." Id. The Corps considers many factors, including "conservation, economics, aesthetics, general environmental concerns, wetlands, ...land use, ... water supply and conservation, water quality, ... considerations of property ownership and, in general, the needs and welfare of the people." Id. The Corps also considers "the public and private need" for the proposed project and "the practicability of using reasonable alternative locations and methods to accomplish the objective." 33 C.F.R. § 320.4(a)(2)(I) and (ii).

If a project is determined to comply with section 404, the Corps issues a permit "unless the district engineer determines that it would be contrary to the public interest." 33 C.F.R. §§ 320.4(a)(1) and 323.6(a). The EPA Administrator may veto the issuance of a permit "whenever he determines, after notice and opportunity for comment, that the discharge of such materials into such area will have an unacceptable adverse effect" on the environment. 33 U.S.C. § 1344Copr..

II. National Environmental Policy Act

The National Environmental Policy Act (NEPA) establishes "a national policy of protecting and promoting environmental quality." Hodges v. Abraham, 300 F.3d 432, 438 (4th Cir.2002), quoting Hughes River Watershed Conservancy v. Glickman, 81 F.3d 437, 443 (4th Cir.1996). NEPA is a procedural statute, meaning that it does not place substantive requirements on federal agencies, but it does require the agency to follow certain procedures prior to taking certain actions. Id.

The purpose of NEPA is two-fold. First, it ensures that an "agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts." In other words, NEPA guarantees that an agency will take "a `hard look' at environmental consequences" before making a decision that may affect the environment. (Citations omitted.) Second, compliance with NEPA procedures "ensures that relevant information about a proposed project will be made available to members of the public so that they may play a role in both the decisionmaking process and the implementation of the decision." (Citations omitted.)

Hodges, supra at 438.

While NEPA requires that the agency follow the proper procedures, e.g., preparing an EIS, once these procedures are completed adequately, i.e.,"`the adverse environmental effects of the proposed action are adequately identified and evaluated,' a federal agency is entitled to `decide that other values outweigh the environmental costs.'" Id.,quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). In other words, the agency's decision cannot be uninformed, even if it is unwise. Id. Therefore, the court cannot "interject itself within the area of discretion of the executive as to the choice of the action to be taken." Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976).

STATEMENT OF THE FACTS

PTRF is a non-profit corporation with approximately 1,300 members, the majority of whom live and work on or near the Pamlico and Tar Rivers. "Many PTRF members visit, recreate, fish, hunt, boat, swim, view wildlife, and otherwise use and enjoy the waters of the Pamlico River adjoining and in the vicinity of the phosphate mining activities which are the subject of this lawsuit." Compl. ¶ 5. PTRF members work to protect wetlands adjacent to the Pamlico River in order to maintain their role of protecting and improving water quality in the river. PTRF and its members claim to be directly harmed by the loss of wetlands and the appurtenant algae blooms, fish kills, and loss of plant and animal habitat.

PCS (formerly Texasgulf, Inc.) owns and operates an open pit phosphate mine and mineral processing facility on the Pamlico River, near Aurora, in Beaufort County, North Carolina. The processing plant produces fertilizer and food grade phosphate from mined phosphate rock. PCS began acquiring property containing phosphate reserves in 1961, and began construction of the mine, mill and mineral processing facility in 1965. Administrative Record ("AR") 008797. PCS's mining operation employed 598 people in 1991, of whom 65 percent lived in Beaufort County. AR 015171.

PCS owns nearly 50,000 acres of land adjoining the Pamlico River and its...