Reid v. Marsh

No. C 81-690 (N.D. Ohio January 4, 1984)

In a challenge to the Corps of Engineers' issuance of a permit authorizing the channelizing and straightening of a stream, the court remands the matter for reconsideration of the environmental effects of the action under the National Environmental Policy Act (NEPA). The court first rules that the Corps did not err in disclaiming permitting jurisdiction over the project under the Rivers and Harbors Act of 1899 since there is no evidence that the stream is "navigable water" within the meaning of the statute. The court agrees, however, with plaintiffs' claim that the Corps has jurisdiction over the project under § 404 of the Federal Water Pollution Control Act (FWPCA). Because dredging activities result in some discharge of dredged materials back into the waterway, they fall within the Act's definition of the term "discharge," even though such discharges may be de minimus. The court adds, however, that the Corps has jurisdiction only over the discharges and not over the actual deepening and widening of the stream.

Next, the court holds that the Corps complied with the FWPCA in issuing the § 404 permit for the proposed placement of rip-rap on the banks of the stream. The Corps gave the public adequate notice of the proposed issuance of the permit and gave sufficient consideration to the comments received. The Corps District Engineer considered all of the factors specified in the pertinent regulations, including the elements of the "public interest review." However, the Corps' review of the project under NEPA was incomplete because the Corps failed to evaluate the environmental effects of the discharges resulting from the dredging operations. The court therefore remands the matter for reevaluation.

Under the Fish and Wildlife Coordination Act, the court agrees with plaintiffs' argument that the Corps' consultations with the Fish and Wildlife Service were inadequate because both agencies wrongly disregarded the environmental effects associated with the discharges from the dredging operations. But the court declares moot plaintiffs' claim that the Environmental Protection Agency (EPA) violated the Act by not pointing out the Corps' misinterpretation of its jurisdiction. EPA will have a second opportunity to comment on the action as a result of the remand ordered by the court.

Counsel for Plaintiffs
J. Vincent Buchanan
Buchanan & Buchanan
8500 U.S. 23 N., Rising Sun OH 43457
(419) 457-4721

Counsel for Defendants
Patrick J. Foley, U.S. Attorney
307 U.S. Cthse., Toledo OH 43624
(419) 259-6376

Thomas R. Spellerberg, Cty. Prosecuting Attorney
106 E. Market St., Tiffin OH 44883
(419) 447-5132

[14 ELR 20232]

Walinski, J.:

Opinion and Order

This cause is before the court on defendants' motion to dismiss and for summary judgment, plaintiff's motion for summary judgment, and the respective oppositions thereto. The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331.

The instant action concerns the proposed channelization of approximately 19.2 miles of the West Branch of Wolf Creek in the Ohio Counties of Seneca, Hancock and Sandusky. Plaintiffs consist of certain individual landowners, who will be assessed and taxed for the construction and channelization, and an unincorporated association of landowners and residents who oppose the project. Defendants include the Secretary of the Army, the Chief of Engineers, U.S. Army Corps of Engineers, and the Buffalo District Engineer, U.S. Army Corps of Engineers (Corps); the Administrator and Regional Administrator of the Environmental Protection Agency (EPA); and the Joint Board of County Commissioners of Seneca, Hancock and Sandusky counties for the West Branch of Wolf Creek (County Commissioners).

On October 28, 1981 plaintiffs filed a complaint seeking a declaratory judgment to determine which areas of the proposed project are under the jurisdiction of the Corps and the EPA. The complaint also alleges that the Corps and EPA failed to comply with the provisions of the Rivers and Harbors Appropriations Act of 1899, 33 U.S.C. §§ 401 et seq., the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. § 1251 et seq., the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., and the regulations promulgated thereunder, when the defendant Corps issued a permit approving the project pursuant to § 404 of the FWPCA, 33 U.S.C. § 1344. Plaintiffs pray that this Court reverse the Corps' decision and declare said permit to be null and void. Plaintiffs also seek a permanent injunction preventing the Corps and the County Commissioners from engaging in "the method of construction and channelization which they have indicated they intended to utilize on the West Branch of Wolf Creek." (Complaint). Finally, plaintiffs' request an award for attorney fees and costs.

Facts

On February 22, 1980 defendant County Commissioners submitted a permit application for the Wolf Creek project to the Buffalo, New York District of the Corps. (Ad Doc. No. A-13). The Commissioners proposed to deepen and widen approximately 19.2 miles of the West Branch of Wolf Creek to improve drainage, increase the hydraulic capacity and navigability of the waterway, and to reduce or eliminate erosion. (Id.). The proposal also included the placement of rock materials (rip rap) on the banks in order to stabilize the channel and the filling of certain oxbows to establish a gentler curve. (Id.).

On April 10, 1980 the District Office of the Corps circulated an "Announcement of Public Hearing" which described the project and set the date, time and place of the requisite public hearing concerning the permit application. (Ad Doc. No. A-21). In this announcement the Corps made the following statement with respect to jurisdiction. "[A]lthough widening and deepening [Wolf Creek] is proposed, the Department of the Army responsibility is limited to the placement of fill and dredged material." (Id.). An identical statement was also made at the public hearing which took place on May 13, 1980. (Ad Rec. Doc. No. A-26 at 22, 23).

Several months later, on January 27, 1981 the District Engineer issued the following written determination asserting jurisdiction over the entire channelization project:

I have determined that the use of a dragline, bulldozer, and earthmovers for the channelization work would result in the relocation of significant quantities of fill and/or dredged material in Wolf Creek. The proposed channelization is therefore an activity requiring specific Corps authorization under Section 404 . . . .

(Ad Rec. Doc. No. C-17).

The District Engineer based this conclusion primarily on Avoyelles Sportsmen's League Inc. v. Alexander, 473 F. Supp. 525 [11 ELR 20315] (W.D. La. 1979), which held that the use of heavy equipment to clear a wetland of its trees and vegetation created a discharge of dredged material requiring a permit under § 404 of the FWPCA. In addition the District Engineer cited to § 404(f) of the FWPCA, which lists certain exemptions to the requirement for a permit, and stated that the proposed activities did not fall under any of these exceptions.¹

Subsequent to that jurisdictional determination, the Office of the Chief of Engineers (OCE), on June 3, 1982, issued a regulatory guidance letter which provides in relevant part:

1. Section 404 of the Clean Water Act authorizes the Corps of Engineers to issue permits for the discharge of dredged or fill materials into the waters of the United States. It does not authorize the Corps to regulate dredging in these waters.

2. De minimis discharge occurring during normal dredging operations, such as the drippings from a dragline bucket, is not considered to be a Section 404 discharge.

(Regulatory Guidance Letter 81-4, Ad Doc. No. D-26).

Based solely on this formal guidance letter, the District Engineer reversed his jurisdictional determination of January 25, 1981 and ultimately concluded, in his finding of fact, that the Corps' jurisdiction covered only the placement of rip rap and filling of oxbows. (Ad Doc. No. D-20). Thus, it was determined that the actual dredging activities could be performed without a Department of Army permit.

With respect to those activities which were determined to be under the Corps jurisdiction (the placement of rip rap and fill materials) the District Engineer found no reason to deny such permit (Id. at 10). Consequently, on September 21, 1981 the District Office validated a § 404 permit for these activities and sent it to the Joint Board of County Commissioners (Ad Doc. No. E-4). Plaintiff commenced the present suit on October 28, 1981.

Rule 56, FED. R. CIV. P. directs the disposition of a motion for summary judgment. In relevant part Rule 56(c) states:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . .

In ruling on a motion for summary judgment, the Court's function is to determined if any genuine issue exists, not to resolve any factual issues, and to deny summary judgment if such an issue exists. United States v. Diebold, Inc., 369 U.S. 654 (1962); Tee-Pak, Inc. v. St. Regis Paper Co., 491 F.2d 1193 (6th Cir. 1974). Further, "[i]n ruling on a motion for summary judgment, the Court must construe the evidence in its most favorable light for the party opposing the motion and against the movant." Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425, 427 (6th Cir. 1962). To summarize, if the movant demonstrates that he is entitled to a judgment as a matter of law, then the Court must next weigh the evidence in a light most favorable for the party opposing the motion; if reasonable minds could differ as to a material fact in issue, then a genuine factual dispute exists and the motion for summary judgment must be denied.

[14 ELR 20233]

Rule 56(e) places a responsibility on the party against whom summary judgment is sought to demonstrate that summary judgment is improper, either by showing the existence of a material question of fact or that the underlying substantive law does not permit such a decision. In relevant part the provision states:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

Rule 56(e), FED. R. CIV. P.

For the reasons that follow the Court finds that each of the cross motions for summary judgment shall be granted in part and denied in part.

The Corps' Jurisdiction

In their complaint plaintiffs make two claims concerning jurisdiction. First, they contend that the entire Wolf Creek project falls under the Corps' jurisdiction pursuant to § 10 of the Rivers and Harbors Appropriations Act of 1899, 33 U.S.C. § 403 (Complaint P1, III, IV, VI; Pl. Memo. in Opp. P IV). Secondly, plaintiffs assert that § 404 3f the FWPCA, 33 U.S.C. § 1344 requires the Corps to exercise jurisdiction over the proposed dredging activity as well as the placement of rip rap and fill materials. (Complaint P VII A, C; Pl. Memo. in Opp. I).

The Court finds that the Corps has no jurisdiction over the project under § 10 of the Rivers and Harbors Appropriations Act.

In relevant part § 10 provides:

[I]t shall not be lawful to excavate or fill or in any manner to alter or modify the course . . . of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same.

The regulations promulgated under the Act define "navigable waters of the United States" as "those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce." 33 CFR 329.4. This definition comports with that adopted by the Supreme Court:

Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. And they constitute navigable waters of the United States within the meaning of the acts of Congress, in contradistinction from the navigable waters of the States, when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water.

The Daniel Ball v. United States, 77 U.S. 557, 563 (1871) (emphasis added); See Minnehaha Creek Watershed District v. Hoffman, 597 F.2d 617, 621 [9 ELR 20334] (8th Cir. 1979).

Therefore to constitute a navigable water of the United States within the meaning of the Rivers and Harbors Appropriations Act a body of water must be navigable in fact and must itself or together with other waters, form a highway over which commerce may be carried on with other states. Minnehaha, supra.

In his findings of fact the District Engineer made the following statement concerning navigation:

Wolf Creek is not considered to be a navigable water of the United States (33 CFR 329). The project area is not presently used for waterborne commerce, although the stream may provide some limited recreational use for canoes during periods of high water. Due to the limited size of the stream, no future commercial navigations in the project area is anticipated.

(Ad. Doc. No. D-20 at 7).

Applying the aforementioned standards and after a through review of the record the Court finds that the Engineers' determination is correct.

In their memorandum in opposition plaintiffs argue that this finding overlooks evidence on the administrative record. Plaintiffs direct the Court to statements by the County Commissioners that one purpose of the proposed project is to improve navigability. (Pl. Memo. in Opp. P IV). This reasoning ignores the second aspect of the definition of navigable waters of the U.S.; the ability to support interstate commerce. See Minnehaha, supra. The Court can find no evidence on the record before it to even suggest that the West Branch of Wolf Creek may be used to transport interstate or foreign commerce.

Plaintiff also argues that § 10 applies to the Wolf Creek project because a navigable waterway will be detrimentally affected by the dredging activity. (Pl. Memo. in Opp. at IV). It is true that § 10 can extend to activities shoreward of the ordinary high water mark when they effect [sic] the "course, condition, location, or capacity of a navigable water." United States v. Joesph G. Moretti, Inc., 526 F.2d 1306 [6 ELR 20221] (5th Cir. 1976). However, the Court can find no evidence on record to support an inference that a navigable water of the United States will be significantly effected [sic] by the project. Moreover, plaintiffs have failed even to identify any specific navigable water which would be effected [sic]. Plaintiffs' vague and conclusory statements cannot withstand a motion for summary judgment. FED. R. CIV. P. 56(e).

Accordingly, with respect to the issue of the Corps' jurisdiction over the Wolf Creek Project under § 10 of the Rivers and Harbors Appropriations Act, defendants are granted summary judgment.

In their second jurisdictional claim plaintiffs argue that the Corps is required to exercise jurisdiction over the entire Wolf Creek Project under § 404 of the FWPCA, 33 U.S.C. § 1344. (Pl. Memo. in Opp. I). An examination of the authority on point reveals that this contention is partially correct.

Section 301(a) of the FWPCA, 33 U.S.C. § 1311(a) provides that "the discharge of any pollutant by any person shall be unlawful" unless it complies with § 301 or other specified provisions of the FWPCA including § 404. In turn, § 404, 33 U.S.C § 1344, creates a permit program allowing the "discharge of dredged or fill material into the navigable waters . . ." only upon the issuance of a permit by the Secretary of the Army.

The FWPCA defines "navigable waters" as "the waters of the United States, including the territorial seas." 33 U.S.C. § 1362(7). It is clear and the parties agree that Wolf Creek is a navigable water within the meaning of the FWPCA.

The phrase "discharge of dredged material," as used in § 404 of the Act, is defined in the regulations promulgated thereunder, as follows:

The term "discharge of dredged material" means any addition of dredged material into the waters of the United States. The term includes without limitation the addition of dredged material into a specified disposal site located in waters of the United States.

33 CFR § 323.2(1). (emphasis added).

Additionally, the regulations at 33 CFR § 323.3(a) provide that any discharge of dredged material not specifically permitted under one of the exceptions enumerated at §§ 323.4-1 to 323.4-3 requires a Department of the Army permit.

This regulatory scheme makes it clear that any activity that results in the addition of dredged material into waters of the United States and which is not specifically exempted requires a § 404 permit.

Defendants argue that the Corps has no jurisdiction on two grounds. First defendants assert that the § 404 permit program was not intended to cover dredging work per se. (Def. Memo. in Supp. p.27).

The Court agrees with defendants that there is a fundamental distinction between dredging work per se, which is regulated by [14 ELR 20234] § 10 of the Rivers and Harbors Appropriations Act, and the discharge of dredged or fill material regulated by § 404 of the FWPCA. This distinction is evident from the language of the Acts themselves and from excerpts of the legislative history of the FWPCA. See S., 2770. 92 Cong., 1st Sess. (1971). Further support is found in the remarks of commentators on the subject. Comparting the jurisdiction under § 10 and § 404 Professor Rodgers states:

The principal difference is that section 404 reaches only discharges while section 10 applies to activities modifying channels without regard to whether there has been a discharge.

W. RODGERS, ENVIRONMENTAL LAW § 4.6 at 399 (1971). Professor Blumm comments:

[S]ection 10 permits are required for dredging activities that excavate material even though no material is placed in navigable waters. In contrast, section 404 permit requirements apply only to . . . discharges of dredged or fill material.

Blumm, The Clear Water Act's Section 404 Permit Program Enters Its Adolescence: An Institutional and Programmatic Perspective, 8 ECOLOGY L.Q. 410, 418 (1980).

This jurisdictional difference, however, does not necessarily preclude dredging work from constituting a "discharge of dredged material" within the meaning of the FWPCA. As the regulations indicate "any" activity "without limitation" which adds dredged or fill materials into waters of the United States requires a permit. The Court can find no authority in the Act, regulations or case law creating an exception for dredging operations. Moreover, it appears that the heavy equipment employed in dredging projects can result in the relocation of significant amounts of dredged material in a waterway. (See authorities cited in Corps' Jan. 27, 1981 jurisdictional determinations, Ad. Doc. No. C-17, also cited on [14 ELR 20232] of this opinion). To create an exception for these activities runs contrary to the stated purpose of the Act "to restore and maintain the chemical, physical and biological integrity of the Nation's Waters." 33 U.S.C. § 1251(a).

Therefore the Court finds that the dredging activities in Wolf Creek are subject to the Corps' jurisdiction under § 404. This jurisdiction, however, does not give the Corps authority to regulate the actual deepening and widening of the channel (i.e. the dredging per se). As stated above, such activities may be governed only by § 10 of the Rivers and Harbors Appropriations Act. Rather, § 404 gives the Corps power to regulate the dredging work only to the extent that it constitutes a "discharge of dredged material." Therefore, in processing an application for the channelization project the Corps should evaluate only the effect of discharge resulting from dredging activities and not the ultimate effect of proposed channel modification.

In their second argument against the Corps exercising § 404 jurisdiction defendants assert that § 404 does not extend to de minimus discharges occurring during normal dredging operations. (Def. Memo. in Opp. p.27). Plaintiffs rely solely on Avoyelles Sportsmen's League Inc. v. Alexander, supra, (Avoyelles I) to refute this contention.

On appeal the Fifth Circuit concluded that jurisdiction over de minimus discharge was a false issue in that case:

It is . . . clear from the record that the activities in this case did not involve a "de minimus" disturbance; hence we have no reason to determine whether de minimus" disturbances are exempted from the act.

Avoyelles Sportsmen's League Inc. v. Marsh, 715 F.2d 897 [13 ELR 20942] (5th Cir. 1983) (Avoyelles II).

The Court in Avoyelles II did, however, suggest that the proper course in cases of de minimus discharges is the grant of a general permit, and not a refusal to exercise jurisdiction. See 715 F.2d at 919 n.37. This reasoning is supported by Minnehaha Creek Watershed District v. Hoffman, supra, wherein the Eighth Circuit rejected the argument "that a significant alteration in water quantity must be demonstrated before the addition of a particular substance to navigable waters can be classified as a discharge of a pollutant" under the FWPCA. 597 F.2d at 626-627. Accordingly, this Court finds that de minimus discharges are not exempted from the § 404 permit program.

For the foregoing reasons plaintiffs are entitled to summary judgment on the issue of the Corps § 404 jurisdiction over the Wolf Creek project to the extent that the Corps failed to make a determination regarding the effects of discharge resulting from the dredging work. Defendants are entitled to summary judgment on this issue to the extent that the Corps declined to exercise § 404 jurisdiction over the actual channel modification. This case is remanded to the Army Corps of Engineers for a determination, under § 404 of the FWPCA, as to the consequences of the discharge of dredged material resulting from dredging operations.

Issuance of § 404 Permit

In his Findings of Fact and Conclusions of Law the District Engineer decided to issue a § 404 permit for the placement of rip rap and filing of oxbows. (Ad. Doc. No. D-20). Plaintiffs allege that this decision was "capricious, and abuse of discretion, not in accordance with law, denied plaintiffs their statutory rights . . . [and was] procedurally deficient, unsupported with valid evidence and unwarranted by the facts involved herein." (Complaint P VI).

As the FWPCA does not set forth a standard for reviewing the Corps decision, the Court must look to the Administrative Procedure Act. Avoyelles II, supra, 715 F.2d at 904. The Act provides that a court shall set aside agency findings, conclusions, and actions that are "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law," or that fail to meet statutory, procedural or constitutional requirements. 5 U.S.C. § 706(2)(A)-(D).

Applying this standard the Court "must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 [1 ELR 20110] (1971). In Overton Park the Supreme Court held:

Although this inquiry into the facts is to be searching and creful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.

401 U.S. at 416. (emphasis added).

In addition judicial review of an agency decision is confined to the administrative record on which such decision was made. FPC v. Transcontinental Gas Pipeline Corp., 423 U.S. 326, 331 (1976); Camp v. Pitts, 411 U.S. 138, 142 (1973); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420 [1 ELR 20110] (1971).

Turning to the case at bar, an examination of the administrative record reveals that all procedural requirements were followed in processing the project application. The Commissioners submitted a permit application as proscribed by the regulations at § 325.1. The Corps gave the requisite public notice which contained a complete description of the work including those aspects outside the Corps jurisdiction. (Ad. Doc. No. A-21). Subsequently, the Corps circulated a supplemental public notice containing a preliminary determination as to whether an Environmental Impact Statement (EIS) was necessary (Ad. Doc. No. A-22). These procedures meet or exceeded all of the requirements set forth in the regulations. 33 CFR §§ 325.2 and 325.4. The Corps also complied with all of the standard procedures enumerated in § 325.2 of the regulations, including consideration of comments made at the public hearing (Ad. Doc. No. A-26: D-20 at 3), a review of statements received from the EPA and the Fish and Wildlife Service (Ad. Doc. Nos. D-5, C-7, C-8, C-30, D-12, D-13), and the preparation of findings of fact and decision (Ad. Doc. No. D-20).

Plaintiffs attack the procedure followed on two grounds. First, they contend that the public notice was defective because it "failed to properly and accurately disclose the areas of the proposed project which require permit and which are under the Corps' jurisdiction, particularly in reference to the actual channelization process which the Corps was cognizant of but it intentionally, arbitrarily and capriciously ignored and circumvented." (Complaint P VII-D). The public notice stated that the Corps "responsibility is limited to the placement of fill and dredged material. [14 ELR 20235] (Ad. Doc. No. A-21). This statement is consistent with this Court's determination that the Corps' jurisdiction is limited under § 404 to the "discharge of dredge or fill material" and does not extend to the ultimate effects of the channel modification. Therefore, plaintiffs first contention is without merit.

Plaintiffs' second procedural challenge centers on the Corps' failure to provide an additional public notice and hearing prior to the District Engineers determination that § 404 did not cover dredging operations. Plaintiffs have failed to specify and the Court cannot find a legal basis for the claim that further public notice is required. See 33 U.S.C. § 1344(a), 33 CFR parts 325, 327. Moreover, as the Corps determined its jurisdiction was more narrow than originally thought, a second notice and hearing would have provided no additional information relevant to the project. Consequently, the Court finds that all procedural requirements were complied with.

The Court also finds that the Corps substantive decision to issue a § 404 permit for the placement of rip rap and fill material is fully supported by the administrative record. As previously stated, in its review of the District Engneers Findings of Fact and Decision, the Court "must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Overton Park, supra, 401 U.S. at 415 (1971).

In his Findings of Fact, the District Engineer fully described the location, character and purpose of the project (Ad. Doc. No. D-20). He then reviewed and summarized the written comments received on the project and responded to twelve major points on those comments. (Id. at 3). The District Engineer also reviewed comments expressing the views of federal, state and local authorities, including those of the EPA, the Fish and Wildlife Service, and the Ohio Department of Natural Resources. (Id. at 3-4).

Next the District Engineer proceeded with a public interest review as required by 33 CFR § 320.4, including a complete evaluation of the project against the seventeen separate factors and four general criteria enumerated in the regulation. Id. Finally, he determined that the placement of rip rap and fill material would comply with the EPA's guidelines set out at 40 CFR Part 230, as is required by § 404(b) of the FWPCA.

There is no question that the District Engineer carefully considered all factors relevant to the placement of rip rap. Moreover, a complete review of the administrative record reveals that this Court would find no "clear error of judgment" if the placement of rip rap were the only aspect of the project falling under the Corps' jurisdiction. As a result of his erroneous jurisdictional determination, however, the District Engineer has failed to review factors relevant to all aspects of the project over which the Corps has authority. For this reason alone the Court finds that the Corps' decision to issue a § 404 permit is contrary to law. Plaintiffs are therefore granted summary judgment on this claim. On remand the Corps' decision concerning issuance of a § 404 permit should include an evaluation of the effects of the placement of rip rap and fill material in conjunction with the discharge of dredged materials. In this manner the Corps may grant or deny one permit for all aspects of the project which fall under its jurisdiction.

Other Claims

Plaintiffs have also alleged that the Corps failed to comply with provision [sic] of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321-4317. (Complaint P VI). It is claimed: (1) that the Corps' "environmental assessment statement was a sham being founded on non-scientific and environmental data and conclusions" (Complaint P VII-B); (2) that the Corps "should have reconsidered, after January 27, 1981, its determination not to require an Environmental Impact Statement (Id.); (3) that the Corps "should have ordered an Environmental Impact Statement prior to issuance of the permit" (Id.); (4) that there is "no support for the conclusion of the defendant Corps that defendants' project activities will not have significant and long rage adverse effects on the environment" (Id. P VI); and (5) that the Corps failed to consider "an alternative and superior method of construction." (Id. at P IX).

In his final determination the District Engineer found the following:

[W]ith respect to the proposed riprap installation subject to my regulatory authority, I have carefully evaluated the subject application and determined that a decision on this application is not a major Federal Action significantly affecting the quality of the human environment and that an Environmental Impact Statement is not required. I have determined that the environmental impact associated exclusively with the work requiring Department of the Army authorization (riprap and fill placement) is insignificant, and that no long term adverse impacts should result.

(Ad. Doc. D-20 at 11).

The Court agrees with defendants' contention that the NEPA does not require that the Corps consider areas of the project which are not subject to its regulatory jurisdiction in its determination of whether to issue an E.I.S. Winnebago Tribe v. Ray, 621 F.2d 269 [10 ELR 20243] (8th Cir.), cert. denied, 449 U.S. 839 (1980); Save the Bay, Inc. v. United States Army Corps of Engineers, 610 F.2d 322 [10 ELR 20185] (5th Cir.), cert. denied, 449 U.S. 900 (1980); Atlanta Coalition on Transp. v. Atlanta Regional Comm'n, 599 F.2d 1333 [9 ELR 20590] (5th Cir. 1979); NAACP v. Medical Center Inc., 584 F.2d 619 [8 ELR 20699] (3d Cir. 1978). It is clear, however, that the Corps failed to consider the effects of the discharge of dredged material resulting from the proposed dredging, an aspect of the project which is subject to the regulatory authority. To this extent the Corps violated § 102(2)(c) of the NEPA, 42 U.S.C. § 4332(2)(c). Accordingly, plaintiffs are entitled to summary judgment on this issue. On remand the Corps should consider all aspects of the project falling under its jurisdiction in its environmental assessment.

Plaintiffs claim that the Corps failed to consider alternative methods of construction appears to be centered on the alleged failure to investigate the "Palmiter Method" (Pl. Memo in Opp. P III). The administrative record shows that this claim is entirely without merit. The Palmiter Method was initially discussed at the public hearing. (Ad. Doc. No. A-26 at 56-57, 115-116). Subsequently, the Corps solicited and received information concerning this method from the Soil Conservation Service of the U.S. Department of Agriculture (SCS). (Ad. Doc. No. B-23).

Robert Shaw, a conservationalist from the SCS responded to the Corps request by a letter in which he concluded:

The clearing and snagging project on the Wolf River system and the work that Mr. George Palmiter did on the St. Joseph's River is basically the removal of obstructions within the channel system. These channels have adequate capacity for flood control and drainage. Since the [West Branch of Wolf Creek does] not have adequate capacity within the existing channel cross section, the clearing and snagging approach will not eliminate the present flooding and drainage problems.

Ad. Doc. No. B-31. Additionally, the District Engineer considered several alternatives in his findings of fact, including the "palmiter Method." Accordingly, defendant is entitled to summary judgment on this claim.

Plaintiff has also claimed that the Corps violated the Fish and Wildlife Coordination Act (FWCA), 16 U.S.C. § 661 et seq. (Complaint P VI). The Act requires a federal agency considering a proposal to modify waters of a stream to consult with the United States Fish and Wildlife Service and state agencies giving full consideration to their views regarding the fish and sildlife aspects of the project. Udall v. FPC, 387 U.S. 428 [1 ELR 20117] (1967); Missouri ex rel. Ashcroft v. Department of Army, 672 F.2d 1978 [12 ELR 20368] (9th Cir. 1982); United States v. Stoeco Homes, Inc. 498 F.2d 597 [4 ELR 20390] (1974); cert. denied, 420 U.S. 827 (1975).

It is clear from the administrative record that the Corps consulted extensively with the Fish and Wildlife Service and state agencies. A-25, B-8, B-26, C-8, D-8, D-12. The record further indicates that the District Engineer gave full consideration to the views expressed by these authorities. (Ad. Doc. No. D-20, pp. 5-6). However, the Fish and Wildlife Service expressed their views concerning the project under the erroneous impression that the Corps' jurisdiction extended only to the placement of rip rap. [14 ELR 20236] (Ad. Doc. No. D-12). Plaintiffs are, therefore, entitled to summary judgment on this issue. The Corps should solicit additional comments from the agency on remand.

With respect to defendant E.P.A. plaintiff claims that the agency "knew or should have known of the aforesaid conduct of defendant Corps, failed to exercise objection, failed to institute statutory and regulatory mechanisms for objecting, and has failed to perform its obligations and mandates under" the FWPCA and NEPA. (Complaint P XI).

In this broad allegation of breach of statutory duty plaintiffs have failed to cite to any specific provision imposing a duty on the EPA to object to the issuance of a permit. This issue is not adressed in plaintiff's memorandum in opposition to summary judgment. The only statutory authority the court can find giving the EPA power to prohibit the issuance of a § 404 permit is § 404(c) of the FWPCA which provides:

The Administrator is authorized to prohibit the specification . . . of any defined area as a disposal site . . . whenever he determines, after notice and opportunity for public hearings, that the discharge of such materials into such site will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas.

33 U.S.C. § 1344(c).

The statutory language indicates that the EPA's authority in this regard is discretionary. Questions of law exist as to whether the Court may review this type of discretionary agency action, and ifso the proper extent of such review. See 5 U.S.C. § 701(a)(2); Morris v. Grossette, 432 U.S. 491 (1977); Save the Bay v. EPA, 556 F.2d 1282 [7 ELR 20674] (5th Cir. 1977). The Court will not rule on these questions at this time. In light of the Court's decision to remand the Corps' decision to the Corps for further proceedings the issue of the EPA's failure to object is moot. Therefore defendants' motion to dismiss plaintiff's claims against the EPA are granted.

Accordingly, it is

ORDERED that plaintiffs are granted summary judgment:

1) On their claim that the Corps has jurisdiction over the entire Wolf Creek Project under § 404 of the FWPCA, to the extent that the Corps failed to make a determination regarding the effects of discharge of dredged material resulting from the dredging work.

2) On their claim that the Corps issuance of a § 404 permit is contrary to law, to the extent that the Corps failed to review the effects of the discharge of dredged material.

3) On their claim that the Corps violated the NEPA, to the extent that the Corps failed to consider the effect of discharge of dredged material in its determination of whether to issue an Environmental Impact Statement.

4) On their claim that the Corps violated the FWCA, to the extent that there was no consultation with Federal and State agencies regarding the effects of discharge of dredged material.

FURTHER ORDERED that defendants are granted summary judgment on all other issues including:

1) Plaintiff's claim that the Corps has jurisdiction over the Wolf Creek Project under § 10 of the Rivers and Harbors Appropriations Act.

2) On plaintiff's claim that the Corps has jurisdiction over the entire Wolf Creek Project under § 404 of the FWPCA, to the extent that the Corps declined to assert jurisdiction over the ultimate effects of the actual rechannelization activities per se.

3) On plaintiff's claim that the Corps failed to consider alternative methods of construction including the Palmiter Method.

FURTHER ORDERED that defendants' motion to dismiss claims against defendant EPA is granted.

FURTHER ORDERED that this case is remanded to the Army Corps of Engineers for further proceedings consistent with this opinion.

It is Ordered and Adjudged

Plaintiff's motion for summary judgment granted in part and denied in part.

Defendant's motion for summary judgment granted in part and denied in part.

Defendant EPA's motion to dismiss granted.

Cause remanded to Army Corps of Engineers for further proceedings.

1. The following authority was also relied upon: U.S. v. Sexton Cove Estates, 8 ERC 1657 [6 ELR 20216] (5th Cir. 1976); Weiszmann v. Corps of Engineers, 8 ERC 1663 [6 ELR 20219] (5th Cir. 1976); and U.S. v. Moretti, 8 ERC 1666 (5th Cir. 1976) (use of a dragline in waters of the United States constituted the discharge of a pollutant from a point source); Activities of Dale Roe in the Portage River Off, Ad. Doc. No. C-17, enclosure seven (discharge of dredged materials was performed where the use of a bulldozer for dredging operations resulted in relocation of significant quantities of bottom materials within the portage river); April 1980 Regulatory Functions Conference in Detroit and November 1980 Monitoring and Enforcement Conference in Chicago, Ad. Rec. Doc. No. C-17, enclosure eight, (in some circumstances dredging, and use of heavy equipment is subject to Corps authorization under § 404 and in borderline cases "it is preferable to err on the side of choosing to exercise jurisdiction rather than decline").