Roanoke River Basin Ass'n v. Hudson, s. 90-3049
| Decision Date | 03 July 1991 |
| Docket Number | Nos. 90-3049,90-3050,s. 90-3049 |
| Citation | 940 F.2d 58 |
| Parties | , 21 Envtl. L. Rep. 21,238 ROANOKE RIVER BASIN ASSOCIATION, Plaintiff-Appellant, and State of North Carolina; Counties of Bertie, Granville, Halifax, Martin, Northampton, Vance, Warren & Washington, NC; Counties of Charlotte, Halifax & Mecklenburg, Virginia, Plaintiffs, v. Ronald E. HUDSON, in his official capacity as Norfolk District Engineer; Wayne A. Hanson, in his official capacity as Wilmington District Engineer; Joseph K. Bratton, Lt. Gen., in his official capacity as the Chief of Engineers of the U.S. Army Corps of Engineers; William R. Gianelli, in his official capacity as Asst. Secretary of the U.S. Dept. of the Army; John O. Marsh, in his official capacity as Secretary of the U.S. Dept. of the Army; The City of Virginia Beach, Defendants-Appellees. National Wildlife Federation; North Carolina Wildlife Federation, Amici Curiae. STATE OF NORTH CAROLINA, Plaintiff-Appellant, and Counties of Bertie, Granville, Halifax, Martin, Northampton, Vance, Warren & Washington, NC; Roanoke River Basin Association; Counties of Charlotte, Halifax & Mecklenburg, Virginia, Plaintiffs, v. Ronald E. HUDSON, in his official capacity as Norfolk District Engineer; Wayne A. Hanson; in his official capacity as Wilmington District Engineer; Joseph K. Bratton, Lt. Gen., in his official capacity as the Chief of Engineers of the U.S. Army Corps of Engineers; William R. Gianelli, in his official capacity as Asst. Secretary of the U.S. Dept. of the Army; John O. Marsh, in his official capacity as Secretary of the U.S. Dept. of the Army; the City of Virginia Beach, Defendants-Appellees. National Wildlife Federation; North Carolina Wildlife Federation, Amici Curiae. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Alan S. Hirsch, argued Sp. Deputy Atty. Gen. (Lacy H. Thornburg, Atty. Gen., North Carolina Dept. of Justice, Raleigh, N.C., on brief), for plaintiff-appellant State of N.C.
Patrick M. McSweeney, argued (Michael V. Hernandez, McSweeney, Burtch & Crump, P.C., Richmond, Va., on brief), for plaintiff-appellant Roanoke River Basin Ass'n.
George A. Somerville, argued, Mays & Valentine, Richmond, Va., Robert L. Klarquist, argued Lands and Natural Resources Div., U.S. Dept. of Justice, Washington, D.C. (John F. Kay, Jr., M. Scott Hart, Susan Warriner Custer, Mays & Valentine, Richmond Va., George W. Van Cleve, Acting Asst. Atty. Gen., Glen R. Goodsell, J. Carol Williams, U.S. Dept. of Justice, Washington, D.C., Margaret Person Currin, U.S. Atty., Stephen A. West, Asst. U.S. Atty., Raleigh, N.C., Leslie L. Willey, City Atty., Jeffry A. Sachs, Asst. City Atty., City of Virginia Beach, Virginia Beach, Va., John R. Jordan, Jr., Robert R. Price, Jordan, Price, Wall, Gray & Jones, Raleigh, N.C., on brief), for defendants-appellees.
S. Elizabeth Birnbaum, National Wildlife Federation, Washington, D.C., for amici curiae.
Before HALL and NIEMEYER, Circuit Judges, and KISER, District Judge for the Western District of Virginia, sitting by designation.
The State of North Carolina and the Roanoke River Basin Authority have appealed a decision of the Army Corps of Engineers to issue a permit to the City of Virginia Beach, Virginia to construct a water intake structure and pipeline that would divert sixty million gallons of water a day from Lake Gaston, a lake that is part of the Roanoke River system, approximately 85 miles to connect to Virginia Beach's water supply. Our review, like that of the district court, is limited to a determination of whether the Corps' decision was "arbitrary, capricious, otherwise not in accordance with law, or unsupported by substantial evidence." 5 U.S.C. Sec. 706(2). We conduct the review without giving deference to the district court's decision. VAGA v. Donovan, 774 F.2d 89, 93 (4th Cir.1985). We affirm the district court's finding that the Army Corps of Engineers complied with all appropriate statutory provisions.
Virginia Beach is the largest city in Virginia, and has an inadequate supply of potable water. Aside from five emergency wells intended for contingency use only, Virginia Beach depends entirely on the City of Norfolk for its water. The city has suffered from recurrent water shortages, and has been forced to ration water on several occasions. After considering several alternatives, Virginia Beach decided that its best water source for the future would be a pipeline from Lake Gaston.
On July 15, 1983, Virginia Beach applied to the Norfolk District of the Army Corps of Engineers for a permit to construct a water intake structure, pier, boathouse and ramp in the Pea Hill Creek tributary of Lake Gaston in Brunswick County, Virginia, and a sixty-inch inside diameter concrete pipe to extend to Norfolk's water treatment facilities. The pipeline would carry up to sixty million gallons per day (mgd). Eighty percent of the water would go to the city of Virginia Beach, and the remainder to nearby towns and counties.
The pipeline, like all construction affecting navigable waters within the United States, required permission from the Army Corps of Engineers. 33 U.S.C. Sec. 403. On October 11, 1983, the Norfolk, Virginia District Corps issued a draft Environmental Assessment (EA) and a preliminary Finding of No Significant Impact (FONSI) for public review and comment. After holding three public hearings, and allowing the required 30 day comment period, the Norfolk District Corps issued the requested permit on January 9, 1984.
The pipeline would also require reallocation of storage in Kerr Reservoir, upriver from Gaston Lake, from power to water supply. This change required the approval of the Wilmington, North Carolina District Corps of Engineers. On January 13, 1984, the Wilmington District Corps adopted the EA prepared by the Norfolk District, and issued a FONSI concluding that the proposed reallocation of storage would have no significant environmental impact.
The State of North Carolina filed this suit on January 12, 1984, seeking to prevent the pipeline from being constructed. The Roanoke River Basin Authority, eight counties in North Carolina and four counties in Virginia later intervened as plaintiffs.
Virginia Beach initiated a declaratory judgment action in the Eastern District of Virginia on January 9, 1984 (three days before the North Carolina action was initiated), seeking a declaratory judgment that the permit and contract were valid. That action was transferred to the Eastern District of North Carolina after this Court determined that the Virginia district court had no personal jurisdiction over the Governor of North Carolina, a named defendant. City of Virginia Beach v. Hudson, 776 F.2d 484 (4th Cir.1985). The action was later dismissed because Virginia had raised all of the same arguments as an intervenor in the case filed by North Carolina. Hudson I, 665 F.Supp. at 433.
On July 7, 1987, Chief Judge Britt issued his first ruling. He approved most of the findings of the Corps, but remanded the matter to the Norfolk District Corps for further inquiry on two issues: (1) to conduct an additional investigation of the effects of the proposed project on anadromous striped bass to determine whether an Environmental Impact Statement (EIS) would be required; and (2) to make a determination of the extent of Virginia Beach's water needs. Hudson I. In response to this order, the Corps filed a Supplement Environmental Assessment, a Supplemental Statement of Findings (SSOF), and a Revised Finding of No Significant Impact (RFONSI). The Corps reissued the permit, adding a new mitigation condition to maintain sufficient flow during bass spawning season. On February 2, 1990, Judge Britt issued a final decision approving the permit. Hudson II. The matter is now ripe for appeal.
Appellants challenge the Corps' decision not to prepare an EIS in light of the possible impact that the pipeline might have on the striped bass population of the Roanoke River. An EIS must be prepared for any "major Federal action significantly affecting the quality of the human environment." 42 U.S.C. Sec. 4332. If a mitigation condition eliminates all significant environmental effects, no EIS is required. C.A.R.E. Now, Inc. v. F.A.A., 844 F.2d 1569, 1573 (11th Cir.1988). The Corps has assumed that the project is a major federal action, and we shall defer to this determination. See Hudson I, 665 F.Supp. at 438. The only issue, then, is whether the withdrawal of 60 mgd from Gaston Lake might significantly affect the environment.
The Council on Environmental Quality has defined the term "significantly." 40 C.F.R. Sec. 1508.27(b).
"[S]ignificantly" as used in NEPA requires considerations of both context and intensity.
Appellants assert that three of ten listed measurements of intensity are present in this case, and that these require that an EIS be conducted. 2
(4) The degree to which the possible effects on the quality of the human environment are likely to be highly controversial.
(5) The degree to which the possible effects are highly uncertain or involve unique or unknown risks.
(7) Whether the action is related to other actions with individually insignificant but cumulatively significant impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment.
Appellants claim that the level of controversy concerning the effect of the project on the striped bass population requires an EIS. The Corps found that the mitigation condition would eliminate the causes of the controversy. We find that the Corps' determination was supported by the record and, therefore, is not arbitrary and capricious.
Since 1971, the Corps has required the operators of upriver dams to release sufficient water to maintain Kerr Lake at a level between 299.5 and...
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