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 amend its May 1982 dredge and fill permit regulations under § 404 of the Federal Water Pollution Control Act. The settlement requires the Corps to issue a regulatory guidance letter directing district engineers to develop criteria for determining when to require individual permit review for activities under general nationwide permits and to promulgate revised § 404 regulations in accordance with the terms of the settlement. Those terms require new restrictions on discharges under the headwaters and isolated waters general permits; new interagency consultation requirements under the surface mining, small hydropower project, and outfall structures general permits; notice and comment procedures for approving categorical exclusions; a public record of decision for future proposed general permits; tighter rein on issuance of ocean dumping permits; full consideration of the views of fish and wildlife agencies in granting, denying, or conditioning individual and general permits; denial of a permit application if the proposed discharge would not comply with the Environmental Protection Agency's (EPA's) § 404(b)(1) guidelines; heightened concern for preservation of wetlands of significant interstate importance; and revision of the irrigation exemption. Also, EPA and the Corps agree to promulgate a joint revised definition of "fill material." Finally, the Corps agrees to issue a revised regulatory guidance letter implementing nationwide the Fifth Circuit's holding in Avoyelles Sportsmen's League v. Marsh, 13 ELR 20942.

[Another order and settlement agreement in the same case appears at 14 ELR 20261 — Ed.]

Counsel for Plaintiffs
James T.B. Tripp
Environmental Defense Fund, Inc.
444 Park Ave. S., New York NY 10016
(212) 686-4191

Jerry Jackson
National Wildlife Federation
1412 16th St. NW, Washington DC 20036
(202) 797-6800

Hope M. Babcock
National Audubon Society
645 Pennsylvania Ave. SE, Washington DC 20003
(202) 547-9009

Counsel for Defendants
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

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

Counsel for Defendants-Intervenors
Mark G. Weisshaar, Turner T. Smith Jr., Michael B. Barr, Charles D. Ossola
Hunton & Williams
P.O. Box 19230, Washington DC 20036
(202) 955-1500

[14 ELR 20263]

Johnson, J.:

Order

Pursuant to the Settlement Agreement entered into by the plaintiffs, federal defendants, and certain of the intervenor-defendants, and filed with this Court, further proceedings in this case will be held in abeyance and final disposition of this action will be in accordance with the terms of the Settlement Agreement.

Settlement Agreement

1. The National Wildlife Federation; Environmental Defense Fund, Inc.; National Audubon Society; Natural Resources Defense Council, Inc.; Izaak Walton League of America, Inc.; Trout Unlimited, Inc.; Sierra Club; Chesapeake Bay Foundation, Inc.; Bass Anglers Sportsman Society; Environmental Policy Institute; Tennessee Conservation League; Florida Wildlife Federation; Florida Audubon Society; Florida Defenders of the Environment, Inc.; American Littoral Society; and Scenic Hudson, Inc. (plaintiffs); 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 (federal defendants); and Alabama Power Company, et al., and National Coal Association, (intervenor defendants), having determined that the best interest of all concerned would be served by an amicable resolution of this litigation, agree to the terms and conditions set out in this agreement.

2. The State of Alaska, the plaintiff in related Civil Action No. 83-3326, also joins in this settlement agreement.The effects of joining in this settlement on its litigation are provided for in a separate agreement with the federal defendants.

3. Section 404 of the Clean Water Act, 33 U.S.C. 1344, authorizes the Secretary of the Army, acting through the Chief of the U.S. Army Corps of Engineers, to issue permits for the discharge of dredged or fill material into the waters of the United States, applying guidelines developed by the Environmental Protection Agency in conjunction with the Secretary of the Army.

4. Within 15 days of the Court's approval of this agreement, the Department of the Army and the Corps of Engineers (collectively referred to hereinafter as "Army") will issue a regulatory guidance letter in the form appended hereto as "Appendix A."

5. Within 45 days of the Court's approval of this agreement, the Army will submit proposed regulations to the Federal Register for publication which if made final would amend existing Army permit regulations, 47 Fed. Reg. 31793 et seq. (July 22, 1982); (referred to hereinafter as "Army Regulations") so as to adopt the measures described in paragraphs 12 through 22 of this agreement.

6. The proposed regulations will undergo the usual steps for rulemaking under the Administrative Procedure Act (APA), 5 U.S.C. § 551, et seq., and the Army will proceed in good faith to consider all comments received on the proposed regulations.

7. Within 90 days of the close of the public comment period on the proposed regulations, the Army will submit final regulations to the Federal Register.If all of the requirements of this agremeent have been fulfilled, and the measures described in paragraphs 12 through 22 of this agreement are adopted by the final regulations or the final regulations contain provisions that are substantially similar but not identical to such measures and plaintiffs concur that such provisions effectively implement such measures, theCourt will dismiss this action with prejudice, except as otherwise noted in paragraphs 24 and 25 of this agreement and except in respect to Counts XI, XII, and XIII of plaintiffs' complaint, which shall be dismissed at such time without prejudice. If plaintiffs do not concur that such provisions effectively implement such measures, and federal defendants disagree, the parties agree to request the Court to determine whether such provisions are substantially similar to and effectively implement such measures and to dismiss with prejudice, except as otherwise noted in this agreement, or retain jurisdiction of this action in accordance with that determination. To the extent that the plaintiffs concur or the Court determines that the final regulations submitted by the Army pursuant to this paragraph effectively implement paragraphs 12 through 22 of this agreement, the plaintiffs are precluded from challenging such final regulations.

8.For good reason and upon 10 days prior notice to the Court and the parties, the Army may extend the 90 day time period in paragraph 7; provided that final regulations will be submitted to the Federal Register no later than 210 days after the Court's approval of this agreement. The 210 day period may only be extended by order of the Court, upon a showing of events beyond the control of the parties and for good cause shown; within such extended period, the plaintiffs may reactivate this lawsuit for good cause upon order of the Court.

9. The parties agree to seek to have the Court hold this litigation in abeyance pending the implementation of this agreement. Attached is a proposed order for entry by the Court to hold this litigation in abeyance.

10. In the event of any breach of this agreement, except as noted in paragraph twenty-four, or in the event of federal defendants' failure to adopt final regulations in the form and time limits specified in paragraphs 7 and 8 hereof, all parties agree to seek to have the Court decide this case expeditiously.

11. Upon dismissal of this action pursuant to this agreement, the Court shall retain jurisdiction to consider any motion for costs and any application for attorneys fees which any party, including the federal defendants, may make within 30 days of such order of dismissal. Each party expressly reserves all defenses and objections to any such motion and application by any other party.

12. The headwaters and the isolated waters general permits found in the Army Regulations at § 330.4, 47 Fed. Reg. 31832, will be modified to incorporate the following limitations:

a) Pre-discharge notice to the appropriate Corps District Office will be required for any discharge activity which will cause the loss or substantial adverse modification of more than one acre but less than 10 acres of waters of the United States, including wetlands. The predischarge notice must state the name and address of the general permittee, the nature and location of the discharge and the approximate size of the waters to be lost or substantially adversely modified as a result of the discharge. Within the time frames established in and subject to the terms of paragraph 12b, District Engineers will notify the Environmental Protection Agency, the Fish and Wildlife Service, the National Marine Fisheries Service (if applicable in respect to a particular proposed discharge), and the appropriate state natural resource agencies of those pre-discharge notifications involving classes of discharges or categories of waters of particular interest to those agencies and [14 ELR 20264] afford those agencies an adequate opportunity before such discharge occurs to consider such notification and express their views, if any, to the Army concerning whether individual permits should be required. These classes and categories include those identified in advance by the resources agencies, and any others which the District Engineer believes may be of importance to the resource agencies. Because notice may be filed out of an abundance of caution, it shall not be considered an admission that the discharge will cause such loss or substantial adverse modification.

b) The general permittee covered by this paragraph shall not begin the discharge:

(1) until notified by the District Engineer that the discharge may proceed under the general permit with any special conditions he may impose; or

(2) if notified by the Division Engineer that an individual permit may be required; or

(3) unless 20 days have passed from receipt by the District office and the general permittee has received no notice from the District Engineer.

(4) Following notification as provided in (b)(1) or upon the expiration of the 20 day period provided in (b)(3) the general permittee will be authorized to conduct his discharge in accordance with the terms and conditions of the general permit. The proposed regulation will also reflect that the permittee's right to proceed under the general permit may be modified, suspended or revoked by the Army only in accordance with the procedure set forth in 33 C.F.R. § 325.7.

c) If the discharge will cause the loss or substantial adverse modification of 10 or more acres of any waters of the United States, including wetlands, an individual permit will be required;

d) The Division Engineer will require individual permits for discharges which have more than minimal adverse environmental effects on the aquatic environment when viewed either separately or cumulatively or when he otherwise deems that an individual permit would be appropriate pursuant to these regulations. In deciding whether to require an individual permit for discharges causing the loss or substantial adverse modification of between one and ten acres, the Division Engineer shall give full consideration to the views, if any, of the Environmental Protection Agency, the Fish and Wildlife Service, the National Marine Fisheries Service (if applicable in respect to a particular proposed discharge), and the appropriate state natural resource agencies. Should the Division Engineer decide after a review of the factors pertinent to a determination of the environmental effects of the proposed discharges, including those set forth in the § 404(b)(1) guidelines, not to require an individual permit even though a consulting agency has indicated in writing that an activity may result in more than minimal adverse environmental impacts, the Division Engineer must prepare a written statement, available to the public on request, which sets forth his response to the specific points raised by the consulting agency.

13. The Environmental Protection Agency, the Fish and Wildlife Service, the National Marine Fisheries Service (if applicable in respect to a particular proposed discharge) and the appropriate state natural resource agencies will be given notice and an adequate opportunity to express their views, if any, on proposed discharge activities under the surface mining general permit, small hydropower project general permit, and outfall structure general permit found at 33 C.F.R. § 330.5(a)(21), (17) and (7). The requirements of the preceeding sentence are satisfied by 30 C.F.R. § 773.13(a)(3)(ii) (48 Fed. Reg. 44393), 18 C.F.R. § 4.61(d)(2) (1982) and 40 C.F.R. § 124.10(c) (1982), as in effect on the date this settlement agreement is signed, provided that the Army shall revise its regulations, as necessary, to ensure that EPA and the appropriate state water quality agency are given notice of proposed discharge activities under the surface mining general permit. The outfall structure, small hydropower project, and surface mining general permits will be modified to require the Division Engineers to give full consideration to the views, if any, of the Environmental Protection Agency, the Fish and Wildlife Service, the National Marine Fisheries Service (if applicable in respect to a particular proposed discharge), and the appropriate state natural resource agencies. Should the Division Engineer decide after a review of all pertinent factors, including those set forth in the § 404(b)(1) guidelines, not to requre an individual permit even though a consulting agency has indicated in writing that an activity may result in more than minimal adverse environmental impact, the Division Engineer must prepare a written statement, available to the public on request, which sets forth his responses to the specific points raised by the consulting agency.

14. The categorical exclusions general permit found at § 330.5(a)(23) of the Army regulations will be revised to require public notice and opportunity for comment before the categorical exclusions of any federal agency are approved by the Office of the Chief of Engineers pursuant to such permit.

15. Section 325.3 of the Army Regulations will be revised to provide that, at the time of proposing any future general permit, the Army will make available to the public the information which reveals the basis for the Army's provisional determination that the discharge activities are in accordance with the requirements for issuance of general permits.

16. Section 325.4 will be revised to provide that District Engineers shall add special conditions to § 404 and ocean dumping permits when such conditions are necessary to satisfy legal requirements, including compliance with the § 404(b)(1) guidelines and ocean dumping criteria, or to otherwise satisfy the public interest requirement. Should the District Engineer determine that such conditions would be necessary to make permit issuance in the public interest but those conditions would not be reasonably implementable and enforceable he shall deny the permit. Permit conditions shall be directly related to the impacts of the proposal, appropriate to the scope and degree of the impacts of concern, and reasonably enforceable. Such conditions may be accomplished on-site, or may be accomplished off-site for mitigation of significant losses which are specifically identifiable, reasonably likely to occur, and of importance to the human or aquatic environment. Where appropriate, the District Engineer may take into account the existence of controls imposed under another federal, state, or local program or the existence of an enforceable agreement between the applicant and another party concerned with the resource in question, in making his findings that a proposal complies with the § 404(b)(1) guidelines or ocean dumping criteria and is in the public interest. In such cases, it shall be a condition of the permit that material changes in, or failure to implement and enforce, such program or agreement shall be grounds for modifying, suspending, or revoking the Department of the Army permit.

17. The Army regulations will be revised to state that with respect to Army decisions on the issuance, denial or conditioning of individual or general permits, the Army will give full consideration to the views of the Fish and Wildlife Servie, the National Marine Fisheries Service, and the state agency responsible for fish and wildlife for the state in which work is to be performed, on fish and wildlife considerations.

18. The Army regulations will be revised to state that subject to consideration of any economic impact on navigation and anchorage pursuant to 33 U.S.C. § 1344(b)(2) a permit application will be denied if the discharge that would be authorized by such permit would not comply with the EPA § 404(b)(1) guidelines. If the District Engineer determines that the proposed discharge would comply with the § 404(b)(1) guidelines the permit will be granted unless the District Engineer determines that it would be contrary to the public interest.

19. The Army regulations under § 320.4(j)(2) of the proposed May 1983 regulations will be revised to add "preservation of special aquatic areas, including wetlands, with significant interstate importance" to the list of "significant issues of overriding national importance."

20. Section 320.4(b)(4) of the Army Regulations will be revised to read as follows:

(4) No permit will be granted which involves the alteration of wetlands identified as important by paragraph (b)(2) of this section or because of provisions of paragraph (b)(3) of this section, unless the district engineer concludes, on the basis of the analysis required in paragraph (a), of this section, that the benefits of the proposed alteration outweigh the damage to the wetlands resource. In evaluating whether a particular discharge activity should be permitted, the district [14 ELR 20265] engineer shall apply the § 404(b)(1) Guidelines (40 C.F.R. § 230.10(a)(1), (2), (3)).

21. Section 320.4(g)(1) of the Army Regulations will be revised to insert the following two sentences at the beginning thereof:

An inherent aspect of property ownership is a right to reasonable private use. However, this right is subject to the rights and interests of the public in the navigable waters and the waters of the United States, including the federal navigation servitude and federal regulations for environmental protection.

22. The irrigation exemption in Section 323.4(a)(3) will be revised to state:

Construction or maintenance of farm or stock ponds or irrigation ditches or the maintenance (but not construction) of drainage ditches. Discharges associated with siphons, pumps, headgates, wingwalls, wiers, diversion structures, and such other facilities as are appurtenant and functionally related to irrigation ditches are included in this exemption.

23. Plaintiffs agree that upon dismissal without prejudice of Counts XI, XII, and XIII of plaintiffs' complaint as provided for in paragraph 7 of this agreement plaintiffs will not assert the claims contained in such counts in any action except in the context of a challenge to one or more particular general permits.

24. Within 90 days of approval of this agreement by the court, the Army and EPA will propose through rulemaking a joint definition of "fill material" and within 120 days thereafter will publish a final joint definition. In the event that federal defendants fail to propose or adopt such a joint definition within such periods, such failure shall be deemed a breach of this agreement as to this paragraph only and plaintiffs may at any time thereafter move the Court to rule on Count XV of the complaint. Notwithstanding any other provision of this agreement, the parties reserve the right to challenge any joint definition of "fill material" hereafter promulgated.

25. Within 45 days of approval of this agreement by the court, the Army will issue a Regulatory Guidance Letter (RGL) explaining the decision of the United States Court of Appeals for the Fifth Circuit in Avoyelles Sportsmen's League v. Alexander, Nos. 79-2653, 82-3231 [13 ELR 20942] (Sept. 26, 1983), and adopting such explanation as the Army's interpretation of its obligations nationwide. Nothing contained in the Agreement shall limit any right the parties may have to challenge such new Regulatory Guidance Letter or any action based upon it.

Appendix A

TO: Corps Division and District Engineers

FROM: Director of Civil Works, Office of the Chief of Engineers

Re: Regulatory Guidance Letter 84-? Criteria for Individual Permit Review of Discharge Activities Subject to Certain Nationwide General Permits

1. The purpose of this letter is to emphasize our policy that clear and effective criteria be used in determining when to require individual permit review for discharge activities otherwise subject to the two nationwide general permits for certain classes of waters, 33 C.F.R. § 330.4.

2. Section 330.7 of the Corps regulations, 47 Fed. Reg. 31834, authorizes Division Engineers to modify nationwide permits by adding regional conditions or to override such permits by requiring individual permit applications on a case-by-case basis. In addition, § 325.7(a) authorizes District Engineers to modify any permit as may be made necessary by considerations of the public interest.

3. A fundamental purpose of the above authorities is to insure that activities authorized by nationwide or other general permits do not result in more than minimal individual or cumulative adverse environmental impacts.

4. The development of specific quantitative criteria is desirable to guide the discretion of District and Division Engineers in exercising such authorities. Such criteria should, for discharge activities occurring in waters subject to the § 330.4 nationwide permits, specify that where a particular discharge activity is likely to cause the loss or substantial adverse modification of more than a specified area of waters of the United States, individual permits will be required. Such criteria should also specify that where a particular discharge activity is likely to cause the loss or substantial adverse modification of more than a specified smaller area of waters of the United States, prospective dischargers will be required to give prior notice to the Corps of their intention to discharge so that the Corps may undertake any necessary consultation with state and federal resource agencies to insure that the discharge will not have more than minimal individual or cumulative adverse environmental impacts.

5. In exercising their discretion, Division and District Engineers are encouraged, through the promulgation of regional conditions or other appropriate means, to develop promptly such specific criteria to govern when activities otherwise subject to the general permits of § 330.4 will be made subject to prior notice or individual permitting requirements.