Town of Abita Springs v. U.S. Army Corps of Eng'rs

• Decision Date: 23 December 2015
• Docket Number: CIVIL ACTION NO: 15-451
• Citation: 153 F.Supp.3d 894
• Parties: Town of Abita Springs v. U.S. Army Corps of Engineers, et al
• Court: U.S. District Court — Eastern District of Louisiana

153 F.Supp.3d 894

Town of Abita Springs

v.U.S. Army Corps of Engineers, et al

CIVIL ACTION NO: 15-451

United States District Court, E.D. Louisiana.

Signed December 23, 2015

Lisa Lavie Jordan, Adam Babich, Jeffery E. Friedman, Tulane Environmental Law Clinic, New Orleans, LA, for Plaintiff.

John E. Sullivan, Matthew M. Marinelli, Tyler Bair, U. S. Department of Justice (Environmental Enforcement) Land & Natural Resource Div., Washington, DC, Sunni Jones LeBeouf, U. S. Attorney's Office, New Orleans, LA, for Defendants.

ORDER & REASONS

CARL J. BARBIER

, UNITED STATES DISTRICT JUDGE

Before the Court is a First Motion for Partial Summary Judgment Vacating the U.S. Army Corps' Permit (Rec. Doc. 18) filed by Plaintiff, the Town of Abita Springs (“Abita Springs” or the “Town”); an opposition thereto (Rec. Doc. 35) filed by Defendants, United States Army Corps of Engineers, Lieutenant General Thomas P. Bostick, John M. McHugh, and Martin S. Mayer (collectively, the “Corps”); an opposition thereto (Rec. Doc. 67) filed by Intervenor Defendant, Helis Oil & Gas Company, L.L.C. (“Helis”); Plaintiff's Supplemental Motion for Summary Judgment Vacating the U.S. Army Corps' Permit (Rec. Doc. 70) ; Helis's opposition thereto (Rec. Doc. 71); Abita Springs' reply thereto (Rec. Doc. 82); the Corps' Cross-Motion for Summary Judgment (Rec. Doc. 76) ; and Abita Springs' opposition thereto (Rec. Doc. 78). The motions were set for hearing, with oral argument, on December 2, 2015. Having considered the motions, legal memoranda, and arguments of counsel; the record; and the applicable law, the Court finds that Abita Springs' motions should be DENIED and the Corps' cross-motion should be GRANTED for the reasons set forth more fully below.

FACTS AND PROCEDURAL BACKGROUND

This dispute derives from the Corps' decision to grant Helis a permit to dredge and fill wetlands under section 404 of the Clean Water Act, 33 U.S.C. § 1344

. Helis has proposed an exploration and production project that will be conducted in two separate phases, referred to as “Phase 1” and “Phase 2” respectively. AR 809.¹ Phase 1 comprises the development of a site for the drilling of a vertical well in order for Helis to obtain information regarding the production potential of a subsurface geologic formation over two miles below the land surface from which Helis plans to extract oil and gas. Id. If the data collected from the vertical well confirms the potential for economically viable mineral production from the target zone, Helis intends to implement Phase 2, which will consist of the development of a site to support the drilling of a horizontal well advanced from the vertical well drilled in Phase 1. Id.

Helis initially sought a permit that would cover both phases of its proposed project. On April 14, 2014, the Corps published a public notice of Helis's original permit application to construct a drill-site well pad, approximately 10.55 acres in size, that would accommodate an oil and gas exploration well and multiple hydraulic fracturing (“fracking”) wells. AR 4857. Due to public interest, the Corps granted two time extensions to the comment period, which ended on June 16, 2014. AR 4950. On July 29, 2014, a Geologic Review² meeting coordinated by the Corps and facilitated by the Louisiana Geological Survey (“LGS”) was held to discuss the geological aspects associated with the proposal. Id. In attendance were representatives from the Louisiana Department of Wildlife and Fisheries (“LDWF”), Louisiana Department of Environmental Quality (“LDEQ”), U.S. Environmental Protection Agency (“EPA”), along with representatives for Helis and the Corps. AR 400. After reviewing the information presented by Helis, John E. Johnston III of the LGS, the consulting geologist at the Geologic Review meeting, concluded that there existed “[n]o less damaging feasible alternatives” to the location selected by Helis for its proposed project. AR 358. However, Johnston determined that the site had no more than a fifty percent chance of becoming a viable production site. AR 400. As a result, Johnston recommended that a single exploratory well be constructed to obtain better data to assess the viability of producing oil and gas at the site. Id. He also recommended that Helis reduce the size of its fill for the well pad from approximately 9.46 acres to 3.2 acres. AR 400-01. The LDWF, LDEQ, EPA, and the Corps agreed with the recommendations, and the Corps suggested that Helis submit revised plans proposing a single exploratory well with a maximum 3.2 acres of fill, “based on a revised purpose to obtain additional data/information to evaluate the viability of producing fossil fuels in this specific geographical area.” AR 4951; accord AR 400-01.

On October 3, 2014, Helis submitted an amended permit application that reduced the scope and footprint of the proposed work. As requested by the Corps, Helis amended its initial permit application to encompass the surface development required for Phase 1 of the project only,³ i.e., the drilling of the vertical well, and reduced the size of the well pad. AR 524-25. The Corps determined that the application was complete and issued a public notice on October 14, 2014. AR 512. The public notice indicated that the Corps and LDEQ were soliciting public comments for a period of thirty days. AR 513. Accordingly, the period ended on November 13, 2014. During the public comment period, the Corps received over 100 comments from individuals and organizations. (Rec. Doc. 35-1, at 3.) After the comment period closed, the Corps received more than eighty additional comments from the public. Id. According to the Corps, all comments received, including those submitted by Abita Springs after the close of the comment period, were considered in the Corps' decision-making process. (Rec. Doc. 76-1, at 10.)

After the close of the comment period, the Corps sent two letters to Helis. On December 2, 2014, the Corps sent Helis a letter asking for its response to comments received from the public. AR 2962. In addition, the Corps sent Helis a letter on December 4, 2014,⁴ requesting Helis's response to the EPA's and the Corps' comments. AR 2968. In particular, the Corps requested that Helis respond to the EPA's concerns that Helis had not considered alternative non-wetland sites for its project. Id. The Corps also asked Helis to respond to the EPA's request that Helis examine opportunities to minimize wetland impacts by reducing or reconfiguring the project's footprint. Id. Further, the Corps asked Helis to respond to its own concerns about whether Helis had developed contingency plans and best management practices in order to prevent pollution in the event of flooding. AR 2968-69.

On January 2, 2015, Helis provided the Corps with a detailed twenty-five page response to comments and requests for information, along with twenty-one attached exhibits. AR 3609. In total, Helis's response and exhibits amount to over 500 pages. AR 3609-4115. Despite Abita Springs' request, the Corps failed to reopen the public comment period after Helis submitted the additional information. AR 4239. On February 25, 2015, after reviewing Helis's response, the EPA advised the Corps that it did not object to the proposed project. AR 4515. On March 19, 2015, the LDEQ concluded “the discharge of fill material for the construction of a well pad and an exploratory vertical well to obtain geologic data to confirm the production potential of a very specific subsurface geologic zone will not violate water quality standards” and issued Helis a Water Quality Certification. AR 4611. In May 2015, Brad Laborde, the Corps project manager assigned to the permit, communicated with John Johnston to ask for additional information concerning less damaging alternatives.⁵ AR 4826. Johnston reiterated that “[a]ll of the locations were reviewed and the least damaging feasible location was selected.” AR. 4830.

The Corps prepared a Memorandum for Record approving the permit application on June 5, 2015. AR 4950. The Memorandum for Record addressed all substantive issues raised by the public comments received and contained the Corps' analysis required by the Clean Water Act and National Environmental Policy Act, including the Corps' “Environmental Assessment,” “404(b)(1) Guidelines Evaluation,” “Public Interest Review,” and “Statement of Findings.” AR 4950-5048. The Corps found that “the proposed action would not have a significant impact on aquatic resources and/or quality of the human environment; therefore, an Environmental Impact Statement [was not] required.” AR 4984.

On June 8, 2015, the Corps issued Helis the permit. AR 5295. Specifically, the permit authorizes Helis to “[c]lear, grade, excavate, and deposit fill for a guard facility, three bypass roads, a well pad, and appurtenances to install and service a vertical exploratory test well.” AR 5295. The proposed work will impact a total of 3.13 acres of wetlands. AR 4951.

The claims in this case arise under the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq.

; the Clean Water Act (“CWA”), 33 U.S.C. § 1251 et seq. ; and the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq. Abita Springs filed its initial complaint and commenced this action on February 12, 2015, although the Corps had not yet issued the permit. (Rec. Doc. 1.) On June 26, 2015, Abita Springs filed its First Amended Complaint, challenging the newly-issued permit. (Rec. Doc. 15.) In its First Amended Complaint, Abita Springs claims that the Corps followed unlawful procedures, failing to allow for public comment on more than 500 pages of documentation submitted by Helis to complete its application after the close of the public comment period. Id. at 2. Abita Springs also claims that the Corps issued the permit in violation of regulations that prohibit the Corps from authorizing destruction of wetlands unless the Corps reasonably concludes that there is no “practical alternative” that would have a...