Raymond Proffitt Found. v. U.S. Army Corps of Eng., No. 99-CV-4038.

CourtUnited States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
Writing for the CourtAnita B. Brody
Citation175 F.Supp.2d 755
PartiesRAYMOND PROFFITT FOUNDATION, Lehigh River Stocking Assn., Plaintiffs, v. U.S. ARMY CORPS OF ENGINEERS, Lt. Col. Debra M. Lewis, Defendants.
Docket NumberNo. 99-CV-4038.
Decision Date20 November 2001
175 F.Supp.2d 755
RAYMOND PROFFITT FOUNDATION, Lehigh River Stocking Assn., Plaintiffs,
v.
U.S. ARMY CORPS OF ENGINEERS, Lt. Col. Debra M. Lewis, Defendants.
No. 99-CV-4038.
United States District Court, E.D. Pennsylvania.
November 20, 2001.

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John W. Wilmer, Media, PA, for plaintiffs.

Richard A. Monikowski, U.S. Dept. of Jusitce, Environment and Natural Resources, Washington, DC, Kent E. Hanson, Silvia Sepulveda-Hambor, Environmental Defense Service, U.S. Dept. of Justice, Washington, DC, K.T. Tom Linson, U.S. Attorney's Office, Assist. U.S. Atty., Philadelphia, PA, for defendants.

MEMORANDUM AND ORDER

ANITA B. BRODY, District Judge.


Plaintiffs' complaint alleges violations of numerous statutory provisions, including: (1) Section 306 of the Water Resources Development Act of 1990 ("1990 WRDA"); (2) Section 6 of the Water Resources Development Act of 1988 ("1988 WRDA"); (3) the Fish and Wildlife Coordination Act ("FWCA"), 16 U.S.C. § 661 et seq. (2000); (4) the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq. (1994 & Supp.2001); and (5) the Pennsylvania Constitution, Art. 1, § 27. On August 23, 2000, I granted defendants' motion to dismiss as to several other claims.1 Before me now are parties' cross motions for summary judgment. Each party has moved for summary judgment on all remaining claims in the case.

I. Background

The Philadelphia District of the U.S. Army Corps of Engineers is responsible for the operation of the Walter Dam, which is a part of the Lehigh River Basin Flood Control Project. See Walter Dam Manual ("WD Manual"), Administrative Record ("AR") IX, 001.2 The Walter Dam is located on the Lehigh River in Carbon, Luzerne and Monroe Counties in Northeastern Pennsylvania. The dam was completed in 1961. Construction of the Walter Dam was originally authorized for the primary purpose of flood control by Section 10 of the Flood Control Act of 1946. See Flood Control Act of 1946, ch. 596, § 10, 60 Stat. 641, 643. Years later, in the Water Resources Development Act of 1988, Congress designated the Walter Dam as a water resources project to be "operated in such a manner as will protect and enhance recreation." Pub.L. 100-676, 102 Stat. 4012. Two years after that, Congress passed the Water Resources Development Act of 1990, in which Congress included "environmental protection as one

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of the primary missions of the Corps ... in ... operating and maintaining water resources projects." 33 U.S.C. § 2316 (West Supp.2001).

Plaintiffs contend that the way the Corps releases water from the Walter Dam into the Lehigh River does not protect the environment. According to plaintiffs, the Corps is releasing too little water during the summer, a period of low precipitation, and too much water during the winter and spring, periods of high precipitation. This is caused by the Corps' decision to maintain the conservation pool at the Walter Dam at a set elevation of 1300 feet. Plaintiffs allege that this storage level is arbitrary and has severe negative consequences for the environment. They claim that the low summertime flow permitted under the Corps' "minimum release level" (the minimum amount of water released from the dam) has a negative impact on aquatic life as fish cannot survive during low flow periods. Plaintiffs note that several studies show that increased minimum release flows during the summer months would protect downstream fish and wildlife. Increasing minimum release levels would allegedly improve the water quality of the Lehigh River by diluting acid mine drainage and downstream sewage concentration. Plaintiffs also claim that the Corps' concern for the elevation of the conservation pool contributes to high volume water releases from the dam in the winter and spring. These large releases allegedly injure wildlife by destroying the eggs of aquatic animals and killing birds nesting downstream along the banks of the Lehigh River. Studies have also found that rapid flow fluctuation harms the diversity and density of river-dwelling fish.

According to plaintiffs, the U.S. Fish & Wildlife Service actually told the Corps that the Corps' current minimum release policy causes harm to the Lehigh River. That agency, as well as its state counterpart, the Pennsylvania Fish and Boat Commission, and environmental groups, including plaintiffs, have allegedly asked the Corps to provide a steady flow of water to the Lehigh River throughout the year to remedy some of their environmental concerns. Plaintiffs suggest that this be done by storing water in the winter and spring and then releasing the stored water during the summer. They claim that the Corps told them that it would only increase the water flow from the dam during summer months if a non-federal sponsor paid the Corps to store water during the winter and spring.

Plaintiffs contend that the Corps has agreed, in the past, to control release flows from the dam for the Delaware River Basin Commission ("DRBC") by storing water in the dam's reservoir. The DRBC is a commission formed of both state and federal representatives that is responsible for water use and conservation in the Delaware River Basin.3 On several occasions during the past forty years, the DRBC has entered into contracts with the Corps for the storage of extra water in the Walter Dam's conservation pool. While compensation was not a part of the earliest contracts, the DRBC paid the Corps for water storage under several of the later agreements. Water storage for the DRBC typically increases the elevation of the pool to 1392 feet and has lasted for periods between two and eighteen months. The most recent case of water storage for the DRBC occurred during the summer of

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1999. In addition, plaintiffs allege that the Corps is currently in negotiations with the DRBC for similar storage in the future. Plaintiffs claim that if the Corps agreed to store water in the reservoir for environmental releases at the same elevation at which it has stored water for the DRBC, such storage would permit an increase in daily flows during the summer months. They point out that during a twenty-four hour period in July 1999, the water flow from the dam was 65 cubic feet per second ("cfs"). Storage at the level at which the Corps has agreed to store water for the DRBC would increase the minimum flow to 200 cfs for a three month period. According to plaintiffs, such a flow would protect the environment of the Lehigh River.

Plaintiffs also assert that the Corps is taking insufficient action to carry out its statutory mandate to provide recreation at the Walter Dam. The Corps has established a schedule of high-level water releases several times a year for white water rafting, as well as providing picnic areas and boat launches for public use. The plaintiffs claim that these are inadequate provisions to satisfy the recreational purpose of the Walter Dam. They also claim that the minimal water releases during summer months do not protect or enhance recreation, as low water flow in the Lehigh River adversely affects recreation on the river. Low flows during the summer prevent members of plaintiffs' organizations from fishing, boating and white-water rafting on the section of the Lehigh River downstream from the Dam. One of the plaintiffs, the Lehigh River Stocking Association ("LRSA"), stocks fish in the Lehigh River for recreational fishing. Low flows during the summer allegedly kill many of these fish. These flows also have a negative impact on boating in the area and have caused the cancellation of several scheduled releases for white-water rafting. Plaintiffs assert that increasing the water flow during the summer by storing water during the winter and spring would protect and enhance recreation.

Regarding plaintiffs' NEPA and FWCA claims, the Corps issued an Environmental Assessment ("EA") for the Walter Dam in 1975, indicating that the EA was "restricted to the effects of operation and maintenance as specified in the U.S. Army Corps of Engineers Operation and Maintenance Manual published in December 1972 and the Reservoir Regulation Manual, revised September 1963." AR II, 0017. At that time, a Finding of No Significant Impact ("FONSI") was made and therefore, an Environmental Impact Statement ("EIS") was not prepared. AR II, 0024. When preparing the 1975 EA, the Corps consulted with the U.S. Fish & Wildlife Service and the Commonwealth's Department of Environmental Resources. AR II, 0028-29. Plaintiffs claim that the Corps' current water release policy and the storage of water for the DRBC were major federal actions that required the preparation of a supplemental EIS. The Corps contends that these actions were merely part of the regular operation of the dam that did not trigger any obligations under the FWCA or NEPA.

II. Summary Judgment Standard

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A court must determine "whether the evidence presents a sufficient [factual] disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a

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matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). At the summary judgment stage, the Court must view the evidence, and draw all reasonable inferences, in the light most favorable to the non-moving party. See Dici v. Com. of Pa., 91 F.3d 542, 547 (3d Cir.1996). This standard is the same for cross-motions for summary judgment. See Appelmans v. City of Philadelphia, 826 F.2d...

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  • State Of N.J. v. United States Army Corp.S Of Eng'rs, Civil Action No. 09-5591 (JAP)
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • January 12, 2011
    ...provision and thus there is no private right of action under the statute. See Raymond Proffitt Found. v. U.S. Army Corps of Eng'rs, 175 F. Supp. 2d 755, 770 (E.D. Pa. 2001) (citing Sierra Club v. U.S. Army Corps of Eng'rs, 935 F. Supp. 1556, 1579 (S.D. Ala. 1996)). Several courts, however, ......
  • Raymond Proffitt Foundation v. U.S. Army Corps, No. 02-3565.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • September 3, 2003
    ...because the WRDA did not provide any "law to apply" to this situation. Raymond Proffitt Found. v. U.S. Army Corps of Eng'rs, 175 F.Supp.2d 755, 767 (E.D.Pa.2001).2 The District Court reasoned that the WRDA's "environmental protection mission was placed upon the Corps as a whole, not upon ea......
  • Richland/Wilkin Joint Powers Auth. v. U.S. Army Corps of Eng'rs, Civil No. 13–2262 (JRT/LIB)
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • September 7, 2017
    ...could obtain the relief requested other than by filing suit under the APA."); Raymond Proffitt Found. v. U.S. Army Corps of Eng'rs , 175 F.Supp.2d 755, 762 (E.D. Pa. 2001) ("[N]either provision of the WRDA at issue in this case makes explicit provision for judicial review ....").12 The Dive......
  • Wild Fish Conservancy v. Kempthorne, No. CV-05-0181-LRS.
    • United States
    • United States District Courts. 9th Circuit. Eastern District of Washington
    • April 30, 2009
    ...status quo. See Fund for Animals, Inc. v. Thomas, 127 F.3d 80, 84 (D.C.Cir.1997); Raymond Proffitt Found. v. U.S. Army Corps of Eng'rs, 175 F.Supp.2d 755 (E.D.Pa.2001). In addition, the routine maintenance of an ongoing, pre-NEPA project does not trigger NEPA's requirements. See Upper Snake......
  • Request a trial to view additional results
9 cases
  • State Of N.J. v. United States Army Corp.S Of Eng'rs, Civil Action No. 09-5591 (JAP)
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • January 12, 2011
    ...provision and thus there is no private right of action under the statute. See Raymond Proffitt Found. v. U.S. Army Corps of Eng'rs, 175 F. Supp. 2d 755, 770 (E.D. Pa. 2001) (citing Sierra Club v. U.S. Army Corps of Eng'rs, 935 F. Supp. 1556, 1579 (S.D. Ala. 1996)). Several courts, however, ......
  • Raymond Proffitt Foundation v. U.S. Army Corps, No. 02-3565.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • September 3, 2003
    ...because the WRDA did not provide any "law to apply" to this situation. Raymond Proffitt Found. v. U.S. Army Corps of Eng'rs, 175 F.Supp.2d 755, 767 (E.D.Pa.2001).2 The District Court reasoned that the WRDA's "environmental protection mission was placed upon the Corps as a whole, not upon ea......
  • Richland/Wilkin Joint Powers Auth. v. U.S. Army Corps of Eng'rs, Civil No. 13–2262 (JRT/LIB)
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • September 7, 2017
    ...could obtain the relief requested other than by filing suit under the APA."); Raymond Proffitt Found. v. U.S. Army Corps of Eng'rs , 175 F.Supp.2d 755, 762 (E.D. Pa. 2001) ("[N]either provision of the WRDA at issue in this case makes explicit provision for judicial review ....").12 The Dive......
  • Wild Fish Conservancy v. Kempthorne, No. CV-05-0181-LRS.
    • United States
    • United States District Courts. 9th Circuit. Eastern District of Washington
    • April 30, 2009
    ...status quo. See Fund for Animals, Inc. v. Thomas, 127 F.3d 80, 84 (D.C.Cir.1997); Raymond Proffitt Found. v. U.S. Army Corps of Eng'rs, 175 F.Supp.2d 755 (E.D.Pa.2001). In addition, the routine maintenance of an ongoing, pre-NEPA project does not trigger NEPA's requirements. See Upper Snake......
  • Request a trial to view additional results

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