National Wildlife Federation v. Marsh

No. 82-3632 (D.D.C. February 10, 1984)

The court approves a settlement agreement requiring the Army Corps of Engineers to modify its dredge and file permit regulations under § 404 of the Federal Water Pollution Control Act (FWPCA) as they apply in the North Slope Borough, Alaska. Under the agreement, the Corps will not apply the headwaters and isolated waters permits to designated areas of the North Slope and will not interpret "prevalence of vegetation" in its wetland definition to exclude tundra. North Slope Borough will acknowledge the Corps' Abbreviated Processing Procedure 83-I (APP) as controlling permits for discharges from oil and gas development on the North Slope. The Corps will apply the headwaters and isolated waters general permits only to activities that are not covered by the APP and that cause minimal individual and cumulative impacts in the North Slope. Further, the Corps will allow the North Slope Borough to play an important role in the implementation of § 404 within the borough. The parties agree to allow the court to dismiss the suit with prejudice, with the parties retaining the right to ask the court to enforce the settlement or to award costs and attorneys fees.

[The settlement agreement is published here without its accompanying exhibits. A related order and agreement in the case appears at 14 ELR 20262 — Ed.]

Counsel for Plaintiffs
Sanford Sagalkin
North Slope Borough
1101 17th St. NW, Suite 808, Washington DC 20036
(202) 296-2214

James W. Moorman, Joseph A. Ingrisano
Cadwalader, Wickersham & Taft
1333 New Hampshire Ave. NW, Suite 700, Washington DC 20036
(202) 293-6300

Counsel for Defendants
William M. Cohen, Nancy Bryson, Robert D. Daniel, James Spears
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2704

Victoria O'Meara
Office of the General Counsel
Department of the Army, Washington DC 20310
(202) 697-5127

Catherine A. Winer
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 382-7703

[14 ELR 20261]

Johnson, J.:

Order

IT IS ORDERED this day that the North Slope Borough's Motion to Intervene is granted and that the Complain in Intervention be entered in this action by the Clerk of the Court and

IT IS FURTHER ORDERED that the Settlement Agreement between North Slope Borough and Federal Defendants be entered in this action by the Clerk of the Court and that the parties to the Agreement carry out the Agreement in accordance with its terms.

Settlement Agreement Between North Slope Borough and Federal Defendants

To avoid prolonged litigation, expense, and delay, the North Slope Borough, an applicant for intervention as a plaintiff in this [14 ELR 20262] action, and the Federal Defendants (John O. Marsh, Jr., Secretary of the Army, William R. Gianelli, Assistant Secretary of the Army (Civil Works), Lt. Gen. Joseph K. Bratton, Chief of Engineers, Department of the Army, and William Ruckelshaus, Administrator, Environmental Protection Agency) and their successors and assigns by their respective undersigned attorneys, stipulate and agree as follows:

1. The best interests of all concerned would be served by an amicable resolution of the dispute set out in the North Slope Borough's Complaint in Intervention.

2. The Federal Defendants hereby withdraw their opposition of the North Slope Borough's motion to intervene as of right under FED. R. CIV. P. 24(a)(2) and consent to the entry of the North Slope Borough's Complaint in Intervention in this action.

3. Within thirty (30) days of the Court's approval of this Settlement Agreement and Order, the Corps of Engineers and the Department of the Army (collectively "Army") will officially recognize in a public notice issued by Army's District Engineer, Alaska District, the map attached to and made part of this Settlement Agreement and Order as Exhibit A as representing Army's interpretation of the areas of the North Slope Borough where activities involving the discharge of dredge or fill material governed by Section 404 of the Clean Water Act (33 U.S.C § 1344) are not covered by the "categories of waters" nationwide permits (33 C.F.R. § 330.4(a) and (b), 47 Fed. Reg. 31832), but instead require individual or other general permits from Army under Section 404. The Army will include in the public notice the explanation attached to and made part of this Settlement Agreement and Order as Exhibit B as Army's explanation of Exhibit A.

4. The Army will not interpret the phrase "prevalence of vegetation" contained in the regulatory definition of wetlands (40 C.F.R. § 230.3t and 33 C.F.R. § 323.2c) as excluding the Alaska tundra from Section 404 coverage. The Federal Defendants agree that nothing in Army's May 12, 1983, Proposal to Amend Permit Regulations for Controlling Certain Activities in Waters of the United States (48 Fed. Reg. 21466 et seq.), including proposed 33 C.F.R. § 238.3(h), alters this interpretation.

5. Army and the District Engineer, Alaska District, have promulgated Abbreviated Processing Procedure 83-I ("APP 83-I") for activities related to oil and gas development in the North Slope Borough. APP 83-I was proposed on August 5, 1983, made available for public comment, and adopted on November 21, 1983. APP 83-I is attached to and made part of this Settlement Agreement and Order as Exhibit C. APP 83-I supersedes General Permits 81-I, 81-II, and 81-III, issued on October 9, 1981, and previously in effect in Alaska. APP 83-I covers all discharge activities related to oil and gas development in the North Slope Borough, except those in navigable waters. The Federal Defendants, including Army's District Engineer, Alaska District, do not have to seek any approval of this Court or the North Slope Borough to modify amend or abolish APP 83-I.

6. To the extent that APP 83-I conflicts with the "categories of waters" nationwide permits (33 C.F.R. § 330.4(a) and (b), 47 Fed. Reg. 31832), APP 83-I controls. In the event that Army takes any regulatory action to restore said "categories of waters" nationwide permits for the activities covered in APP 83-I, then the North Slope Borough shall be permitted to reinstate its Complaint in this case, but only insofar as said Complaint seeks judicial review of said "categories of waters" nationwide permits.

7. The "categories of waters" nationwide permits (33 C.F.R. § 330.4(a) and (b), 47 Fed. Reg. 31832) apply only to activities that are not covered by APP 83-I and that cause minimal individual and cumulative environmental impacts in the North Slope Borough.

8. The Federal Defendants will provide the North Slope Borough the opportunity to play an important role in the Section 404 program within its boundaries. The Army will give full consideration to the North Slope Borough's concerns with regard thereto, including the Borough's concerns regarding the issuance of new general permits, the need for advance notice to the Borough of certain categories of activities generally permitted, the monitoring of non-oil and gas development activities (not covered by APP 83-I) carried out under the "categories of waters" nationwide permits (33 C.F.R. § 330.4(a) and (b), 47 Fed. Reg. 31832), and the possible need for future regulatory action for non-oil and gas development activities.

9. The North Slope Borough shall not be precluded by anything in this Settlement Agreement and Order from challenging any individual actions involving the discharge of dredged or fill material, including (a) any individual permit decision of Army within the North Slope Borough's boundaries under APP 83-I or otherwise, (b) the application of any general permit to any specific discharge under Section 404 or (c) the failure of any party to obtain a proper permit under Section 404. Except as provided in paragraph 6 hereof, the North Slope Borough agrees that in any challenge to any such individual action, it may not reopen of raise matters resolved by this Settlement Agreement and Order.

10. Upon dismissal of the North Slope Borough's Complaint in this action in accordance with paragraph 11 of this Settlement Agreement and Order, infra, the Court shall retain jurisdiction to consider any motion for costs and any application for attorneys fees which the North Slope Borough or the Federal Defendants may make within thirty (30) days of such dismissal. The North Slope Borough and the Federal Defendants each expressly reserves all defenses and objections to any such motion and application made by the other.

11. The Court will dismiss with prejudice the North Slope Borough's Complaint thirty (30) days after service upon the North Slope Borough of written notice of the publication of the map (Exhibit A) and the explanation of the map (Exhibit B), as set forth in paragraph 3 of this Settlement Agreement and Order. Notwithstanding this dismissal, the North Slope Borough shall have the right to enforce this Settlement Agreement and Order in this Court. In addition, the North Slope Borough's right to judicial review of any future action of the Federal Defendants and Army, including any action which has the effect of altering in any respect the terms of this Settlement Agreement and Order or any of the Exhibits attached to and made part of this Settlement Agreement and Order, shall not be precluded.