Water Works & Sewer Bd. v. U.S. Dept. of Army, No. CV 95-PT-2956-S.

• Court: U.S. District Court — Northern District of Alabama
• Writing for the Court: Propst
• Citation: 983 F.Supp. 1052
• Parties: THE WATER WORKS & SEWER BOARD OF THE CITY OF BIRMINGHAM, Plaintiff, v. UNITED STATES DEPARTMENT OF ARMY, CORPS OF ENGINEERS, et al., Defendants.
• Decision Date: 22 October 1997
• Docket Number: No. CV 95-PT-2956-S.

983 F.Supp. 1052 THE WATER WORKS & SEWER BOARD OF THE CITY OF BIRMINGHAM, Plaintiff,
v.
UNITED STATES DEPARTMENT OF ARMY, CORPS OF ENGINEERS, et al., Defendants. No. CV 95-PT-2956-S. United States District Court, N.D. Alabama, Southern Division. October 22, 1997.

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Charlie D. Waldrep, Kenneth Mark Parnell, Mary H. Thompson, Gorham & Waldrep, P.C., Birmingham, AL, for Water Works & Sewer Bd. of the City of Birmingham.

G. Douglas Jones, U.S. Atty., Caryl P. Privett, John C. Bell, U.S. Attorney's Office, Birmingham, AL, Bret C. Birdsong, U.S. Dept. of Justice, Environment & Natural Resources, Washington, DC, Lois J. Schiffer, U.S. Dept. of Justice, Environment & Natural Resources, Wildlife & Marine Resources Section, Washington, DC, Jon M. Lipshultz, David L. Weigert, U.S. Dept. of Justice, Environment & Natural Resources Division, Environmental Defense Section, Washington, DC, for U.S. Army Corps of Engineers, Togo D. West, Jr., A. E. Williams, William S. Vogel.

G. Douglas Jones, U.S. Atty., Caryl P. Privett, John C. Bell, U.S. Attorney's Office, Birmingham, AL, Lois J. Schiffer, U.S. Dept. of Justice, Environment & Natural Resources, Wildlife & Marine Resources Section, Washington, DC, for Governmental Utility Services Corp. of the City of Bessemer.

Charles H. Tisdale, Jr., R. Todd Silliman, King & Spalding, Atlanta, GA, Calvin D. Biggers, Calvin D. Biggers & Associates, P.C., Bessemer, AL, for City of Bessemer, AL.

Memorandum Opinion

PROPST, Senior District Judge.

This cause comes on to be heard on a motion for summary judgment filed by defendant City of Bessemer ("Bessemer") on July 30, 1997; a motion for summary judgment filed by defendants United States Army Corps of Engineers, Togo D. West, Jr., Lt. Gen. A. E. Williams, and Col. William S. Vogel (collectively, "Corps") on July 30, 1997; and a motion to allow limited discovery and a hearing, and cross motion for summary judgment filed by the plaintiff Water Works & Sewer Board of the City of Birmingham ("Water Works") on August 29, 1997. The issues raised by Bessemer and the Corps in their separate motions are substantially the same. The parties' dispute concerns the validity of a Department of the Army Permit for work in "waters of the United States" issued by the Corps on March 17, 1997. The plaintiff contends that the permit was improperly issued (1) because the Corps failed to have a requested hearing on the validity of the permit in violation of the Corps' regulations, the statutes governing the Corps' permitting process and the Due Process Clause of the Fifth Amendment; (2) because the Corps failed to adequately consider the substantial adverse effects of the permitted activity on the public interest; (3) because the Corps erroneously failed to require preparation of an environmental impact statement in violation of the National Environmental Policy Act, 42 U.S.C. § 4321, et seq.; and (4) because the permitted activity of Bessemer will not comply with the Environmental Protection Agency's Guidelines for Specification of Disposal Sites for Dredged or Fill Material, 40 C.F.R. § 230.1, et seq. The defendants contend that the Corps properly permitted a prospective intake structure and pipeline intended to provide water for an independent water treatment and distribution system in Bessemer and that its decision is properly

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supported by the administrative record. The plaintiff asserts that it should be granted an opportunity for discovery outside of the administrative record and that it should be granted a hearing on the basis of the discovery results.

Facts

The Water Works & Sewer Board of the City of Birmingham ("Water Works"), originally the Birmingham Waterworks Company, is an Alabama public corporation that was initially "chartered for public service by legislative act approved February 13, 1885. Sess. Acts 1884-85, p. 415." Birmingham Waterworks Co. v. City of Birmingham, 58 So. 204, 204, 176 Ala. 301, 301 (Ala.1912); State ex rel. Weatherly v. Birmingham Waterworks Co., 64 So. 23, 26-27, 185 Ala. 388 (1913). The purpose of the Water Works, as first stated, was to "greatly promote the health and comfort of the citizens of Birmingham, in Jefferson county, Alabama, and its suburbs, to have an ample supply of good and pure water...." Birmingham Waterworks Co. v. City of Birmingham, 58 So. at 204. The Water Works describes itself as being "the largest water utility in the State of Alabama, serving approximately 25 million gallons per day of raw water to industrial customers, and approximately 108 [million gallons per day] of potable water to approximately one million people...." Plaintiff's Brief in Response to Bessemer's Motion for Summary Judgment at 2-3; also, Administrative Record at 209. The Water Works has four sources of water: the Cahaba River, the Mulberry Fork of the Black Warrior River, the Sipsey Fork of the Black Warrior River and Inland Lake.

The City of Bessemer has, for forty-six years, purchased water from the Water Works to sell to its residents. At present, ten to thirteen million gallons of water per day are purchased by Bessemer from the Water Works for residential, agricultural and industrial purposes. Bessemer has, however, grown weary of its reliance on the Water Works and seeks to develop its own water supply, treatment and distribution system.¹ To develop the independent water system, Bessemer would build an intake structure on the Black Warrior River at Taylor's Ferry, downstream from Bankhead Lake; a water treatment plant at which the withdrawn water would be made potable; and an associated thirty-inch diameter pipe that would connect the intake structure to the treatment plant and the treatment plant to the water distribution system of Bessemer. At full operating capacity, the intake system would be capable of removing twenty-five million gallons of water per day from the Black Warrior River.² From the treatment plant, the water would be channeled through pre-existing pipes to end-line customers.

On June 2, 1995, Bessemer submitted an application for a Corps of Engineers' permit pursuant to section 10 of the Rivers and Harbors Appropriation Act of 1899 (33 U.S.C. § 403) and section 404 of the Clean Water Act (33 U.S.C. § 1344) to construct the water intake structure on the Black Warrior River and associated pipeline crossings. On June 28, 1995, the Army Corps of Engineers ("Corps") issued public notice of the permit application and provided a thirty day period ending on July 28, 1995, within which comments on the proposed project were to be submitted. The Corps received comments from various state, local and federal agencies, in addition to private individuals. On July 28, 1995, the Corps extended the comment period in response to a request for an extension of time and for a public hearing by the Water Works. On August 11, 1995, the Water Works submitted "extensive" comments

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setting forth its objections to the permit and reiterated its request for a hearing.

On October 30, 1995, the Corps formally denied the Water Works' request for a public hearing, stating that "a public hearing would not provide any additional information which would assist in making a final decision in this request for a permit." Administrative Record ("A.R.") at 308. On the next day, the Corps issued a Statement of Findings, which included an environmental assessment and an evaluation of compliance with the EPA's Clean Water Act Guidelines and which addressed the comments received, including, allegedly, those of the Water Works. On November 13, 1995, the Corps issued a permit to Bessemer authorizing construction of the water intake structure and associated pipeline. Three days later, the Water Works filed suit in this court seeking review of the Corps' action.

Around March 1, 1996, the Corps suspended its permit to consider in more depth the impacts associated with the intake structure and the pipeline route proposed by Bessemer. At the same time, the parties moved jointly to stay the case while such consideration was taking place. On March 4, 1996, the court granted the stay. According to the Corps, while the stay was in effect, it considered issues raised by the Water Works, as contained in the affidavits of Bruce Schweneker and Gene Hanson that were submitted to the court in February 1996.

A year after the stay went into effect, on March 17, 1997, the Corps issued a revised Statement of Findings on the permit application, accompanied by an environmental assessment and an evaluation of compliance with the EPA's Clean Water Act Guidelines. On the same day, it reissued Bessemer's permit. The issues raised in the various motions are now before the court.

Contentions & Analysis

The court assumes, without deciding, that the Water Works has standing to raise its various complaints. It may have standing as to some and not as to others.

I. THE BENEFIT OF A HEARING.

The plaintiff's first contention is that it was denied a hearing in violation of (1) the regulations issued by the Corps governing the circumstances under which a hearing is to be granted; (2) the Administrative Procedure Act and the relevant sections of the statutes under which the Corps' authority to regulate is described; and (3) Fifth Amendment due process, even if the Corps in fact complied with the regulations and statutes. The defendants dispute all of these arguments.

A. Compliance with the Regulations.

The Corps' regulations elucidating the criteria for the grant of a public hearing, 33 C.F.R. § 327.4, state:

(a) A public hearing will be held in connection with the consideration of a DA [Department of the Army] permit application or a Federal project whenever a public hearing is needed for making a decision on such permit application or Federal project. In addition, a public hearing may be held when it is proposed to...