Waterford Citizens' Ass'n v. Reilly

• Decision Date: 15 June 1992
• Docket Number: No. 91-2142,91-2142
• Parties: 22 Envtl. L. Rep. 21,285 WATERFORD CITIZENS' ASSOCIATION, Plaintiff-Appellant, v. William K. REILLY, Administrator EPA; Loudoun County Sanitation Authority, Defendants-Appellees, and Advisory Council on Historic Preservation; Department of Historic Resources, Defendants. Preservation Alliance of Virginia, Amicus Curiae.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1287

970 F.2d 1287

22 Envtl. L. Rep. 21,285

WATERFORD CITIZENS' ASSOCIATION, Plaintiff-Appellant, v. William K. REILLY, Administrator EPA; Loudoun County Sanitation Authority, Defendants-Appellees and Advisory Council on Historic Preservation; Department of Historic Resources, Defendants Preservation Alliance of Virginia, Amicus Curiae.

No. 91-2142.

United States Court of Appeals, Fourth Circuit.

Argued March 3, 1992.

Decided June 15, 1992.

Katherine Jo Henry, Mayer, Brown & Platt, Washington, D.C., argued, for plaintiff-appellant.

Jacques B. Gelin, U.S. Dept. of Justice, Washington, D.C., Thomas Francis Farrell, II, McGuire, Woods, Battle & Boothe, Alexandria, Va., argued (Barry M. Hartman, Acting Asst. Atty. Gen., Carl Strass, David C. Shilton, Apphia Theresa Schley, U.S. Dept. of Justice, Washington, D.C., Richard Cullen, U.S. Atty., Paula P. Newett, Asst. U.S. Atty., Alexandria, Va., Laurie Ford, U.S. E.P.A., Washington, D.C., Joseph W. Wright, III, McGuire, Woods, Battle & Boothe, Alexandria, Va., on brief), for defendants-appellees.

Richard B. Nettler, Robins, Kaplan, Miller & Ciresi, Washington, D.C., for amicus curiae.

Before SPROUSE, Circuit Judge, KISER, United States District Judge for the Western District of Virginia, sitting by designation, and BLATT, Senior United States District Judge for the District of South Carolina, sitting by designation.

OPINION

SPROUSE, Circuit Judge:

The Waterford Citizens' Association (Citizens' Association), ¹ in an action for declaratory judgment, claimed that the Environmental Protection Agency (EPA) ² is obliged to reinstitute procedures mandated by section 106 of the National Historic Preservation Act (NHPA or the Act) before a contemplated expansion of an existing sewage system can go forward. The district court concluded that the decision was within the EPA's discretion and dismissed the suit. We affirm the judgment, although on different grounds than those relied upon by the district court.

I

Waterford is a village of 350 residents located in Loudoun County, Virginia. Because of its Quaker and industrial past, its virtually unchanged appearance since the early 1800s, and the unspoiled landscape which surrounds the village, it is listed on the National Register of Historic Places. In 1970, the Loudoun County Sanitation Authority (Sanitation Authority) contracted for the construction of a sewage collector system and treatment works for Waterford. ³ The sewer system was completed in 1978.

Because the project was funded by the EPA ⁴ and affected a site listed on the National Register, the Sanitation Authority and the EPA were required to comply with the provisions of the National Historic Preservation Act and the regulations promulgated pursuant to it. 16 U.S.C. §§ 470f, 470h-2(f). Section 106 of the Act requires federal agencies to give the Advisory Council of Historic Preservation (Advisory Council) an opportunity to comment on the effect a federal undertaking will have on a historic site. ⁵ Pursuant to regulations issued under the NHPA by the Advisory Council, ⁶ the EPA solicited comments regarding the impact of the proposed system upon the historic character of Waterford from the Advisory Council and the Virginia Historic Preservation Officer.

The participants agreed that the sewer system would adversely affect the historic site by damaging the buildings and landscape during the construction period and by stimulating growth and development after its construction. ⁷ When adverse consequences are identified, the Advisory Council's regulations provide that the granting agency may enter into a Memorandum of Agreement (Agreement) in which it promises to follow appropriate procedures to mitigate those effects. 36 C.F.R. §§ 800.5(e)(4) and 800.6(c)(1). Accordingly, the EPA, Virginia's Historic Preservation Officer, and the Advisory Council executed such an agreement. The EPA agreed, inter alia, to ensure that the Sanitation Authority submit any revision of the sewer system's final plan to the Virginia Historic Preservation Officer.

The genesis of this litigation is the 1990 request (twelve years after the completion of the sewer system) of a developer to hook the sewer lines of a proposed townhouse development, located outside of the village boundaries, into Waterford's sewer system. Although the treatment plant has unused capacity and the hookup will not necessitate an addition to the plant, the hookup will require additional sewer lines. Loudoun County and the Sanitation Authority indicated that the request would be granted. The Sanitation Authority requested no additional grant money from the EPA for the expansion, nor did it consult with Virginia's Historic Preservation Officer.

The Advisory Council and the Virginia Historic Preservation Officer interpreted the proposed hookup as a revision of the system's final plan, however, and concluded that it triggered anew the EPA's obligation. Accordingly, they requested that the EPA comply with the agreement by directing the Sanitation Authority to submit the proposed revisions to Virginia's Historic Preservation Officer for review, thus reopening the section 106 process. When the EPA refused, the Citizens' Association filed suit in the United States District Court for the Eastern District of Virginia, asking for a declaratory judgment that section 106 of the NHPA requires the EPA to comply with its agreement by interceding in the proposed expansion of the sewer lines.

The EPA responded to the complaint by moving to dismiss on the ground that the Citizens' Association had failed to allege standing. The court, however, granted the Association's motion to amend its complaint on the same day, and the amended complaint alleges standing. The dismissal motion also contended that the complaint failed to state a claim because the EPA has no mandatory duty to "enforce" the Memorandum of Agreement. After a hearing, the court granted the EPA's 12(b)(6) motion to dismiss, reasoning that because that decision was within the prosecutorial discretion of the EPA, the Citizens' Association did not have standing to compel the EPA to implement the agreement.

II

We are not certain that the district court invoked the doctrine of standing in the traditional sense. In any event, the Citizens' Association clearly has standing to bring this issue to court. In considering the propriety of a Rule 12(b)(6) dismissal, the standard of review is whether the complaint, accepting the allegations as true, allows a recovery. Hospital Building Co. v. Rex Hospital Trustees, 425 U.S. 738, 746, 96 S.Ct. 1848, 1853, 48 L.Ed.2d 338 (1976). Here, the Citizens' Association has alleged a threatened injury which can be fairly traced to the conduct of the EPA and which can be redressed by a judicial decision. These are, of course, the two elements necessary to establish standing under Article III of the Constitution. See Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984); Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982). The Citizens' Association also meets the test for organizational standing. See Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977); Natural Resources Defense Council, Inc. v. Watkins, 954 F.2d 974 (4th Cir.1992). This court has recognized the standing of an organization to represent similar interests. See Ely v. Velde, 451 F.2d 1130 (4th Cir.1971). ⁸

We nevertheless affirm the judgment of the district court. We note at the outset that the scope of the obligations imposed upon federal agencies by the enactment of section 106 is quite narrow. The affirmative duties are clearly stated: agencies "shall prior to the approval ... of the expenditure of any Federal funds on the undertaking ... take into account the effect of the undertaking ..." and "afford the Advisory Council ... an opportunity to comment...." 16 U.S.C. § 470f. In imposing these general obligations, Congress did not create a primary role for federal agencies to protect historic sites.

Although the statute requires the EPA to evaluate the effect of the undertaking on the historical site, the language of the statute does not indicate what, if any, further action an agency should take. For example, the statute is silent on the proper disposition of a disagreement between the Advisory Council and the agency over the potential adverse effect of the "undertaking." Nor does section 106 specify what the Advisory Council's opportunity to comment on the project entails. The Advisory Council's regulations and the legislative history, however, demonstrate that the total response required of the agency is quite limited.

The Advisory Council has filled the interstices of the statute by defining how federal agencies may discharge their section 106 obligation. See 36 C.F.R. Part 800.1 et seq.; National Center for Preservation Law v. Landrieu, 496 F.Supp. 716, 742 (D.S.C.1980) (Advisory Council has discretion to promulgate regulations defining section 106 obligations), aff'd per curiam, 635 F.2d 324 (4th Cir.1980). Thus, a procedural regulatory scheme guides agencies contemplating a project, or, in the language of the statute, an "undertaking." ⁹ The final outcome of that process, however, demonstrates the limited obligation of the agency. Significantly, the regulations state that if the parties are unable to agree to an accommodation of interest, they may end the section 106 consultation process. 36 C.F.R. § 800.5(e)(6).

Our review of the legislative history of section 106 substantiates our view that Congress did not intend this provision to impose general obligations on federal agencies to affirmatively protect preservation interests. The Advisory Council has only the authority for "reviewing plans for Federal undertakings and the undertakings of others involving Federal assistance or requiring...