Creppel v. United States Army Corps of Engineers

No. 77-25 (E.D. La. June 30, 1988)

The court rules that the Environmental Protection Agency's (EPA's) definition of "unacceptable adverse effect" under Federal Water Pollution Control Act (FWPCA) § 404(c) is valid, and holds that EPA's decision to veto a flood control project pursuant to § 404(c) was not arbitrary or capricious. The court first upholds EPA's regulation defining "unacceptable adverse effect" as an impact likely to result in significant environmental damage. Neither the plain language of the statute nor the legislative history indicates that EPA must balance environmental and economic concerns in making a § 404(c) determination. The court next holds that federal flood control projects authorized under 33 U.S.C. § 701(c) do not override EPA's FWPCA § 404(c) veto authority, since Congress has not unequivocally elevated flood control over environmental concerns. The court holds that EPA's decision to exercise its veto authority was not arbitrary or capricious. The agency followed proper procedures by adequately summarizing the facts underlying its proposed determination and considering the corrective action proposed by plaintiffs. That the veto might work a taking does not render EPA's action invalid, but rather gives rise to a possible claim for compensation under the Tucker Act. Furthermore, EPA's regulations do not require that § 404(c) hearings be conducted by a board with industrial or local representation. In addition, there was adequate evidence tosupport EPA's finding that the project would have an unacceptable adverse effect on shellfish beds, fishery areas, wildlife, and recreational areas. Finally, the court holds that challenges to various requirements of the Army Corps of Engineers and EPA with respect to the project are either time-barred or fail to demonstrate that the agencies' actions were arbitrary or capricious.

Counsel for Plaintiffs
Harold L. Molaison
230 Huey P. Long Ave., Gretna LA 70053
(504) 366-4336

Counsel for Defendants
Michael M. Wenig, David E. Dearing
Environmental Defense Section
U.S. Department of Justice, Washington DC 20026
(202) 786-4787

[19 ELR 20134]

Mitchell, J.: Opinion

I. Reconsideration

This decision arises from a motion filed by the Environmental Protection Agency (hereinafter "EPA") to reconsider this Court's August 28, 1987, decision. The federal defendants in this suit originally filed a Motion for Summary Judgment based upon EPA's exercise of its section 404(c) restriction power under the Clean Water Act, 33 U.S.C. § 1344(c), over a certain land reclamation/flood protection project originally known as the Harvey Canal-Bayou Barataria Flood Control Project. Plaintiffs filed an Opposition and Cross-Motion for Summary Judgment to authorize the completion of the original project in question. This Court denied the Motions for Summary Judgment based primarily on the contention that there were material facts at issue which precluded granting summary judgment concerning the appropriateness of the EPA "veto."

This Court recognizes that its power to review the EPA's actions is limited in scope under the Administrative Procedures Act (hereinafter "APA"), 5 U.S.C. §§ 706 et seq. We may only determine whether the agency acted in an arbitrary or capricious fashion, abused its discretion or otherwise acted not in accordance with law, or whether the agency's actions failed to meet statutory, procedural or constitutional requirements. APA section 10(e), 5 U.S.C. § 706; Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897, 905 [13 ELR 20942] (CA5-1983); Buttrey v. United States, 690 F.2d 1170, 1183-85 [13 ELR 20085] (CA5-1982), cert. denied, 461 U.S. 927, 103 S. Ct. 2087 (1983); Bersani v. United States Environmental Protection Agency, 674 F. Supp. 405 [18 ELR 20001] (N.D.N.Y. 1987). When an agency's determination is based on an administrative record, the decision should be reviewed in light of that record. Camp v. Pitts, 411 U.S. 138, 142, 93 S. Ct. 1241, 1244 (1973); Bowles v. United States Army Corps of Engineers, 841 F.2d 112, 116 [18 ELR 20838] (CA5-1988), Avoyelles, 715 F.2d at 905; Buttrey, 690 F.2d at 1184. If the case cannot be sustained on the administrative record, then the case should go back to the agency for further consideration. Camp, 411 U.S. at 142-43, 93 S. Ct. at 1244 (1973); Bowles, 811 F.2d at 116. Therefore, this court recognizes that any sort of de novo review would be improper and, thus, reconsiders its previous decision and hereby grants defendants' Motion to Reconsider.

Based upon a careful review of the administrative record in this case, we hereby vacate our order of August 28, 1987, denying the cross-motions for summary judgment and sustain EPA's decision to restrict the subject area from the discharge of dredge or fill material and remand the case to the United States Army Corps of engineers (hereinafter "the Corps").

II. Procedural Background

This court takes up this decision not unlike Sisyphus; once more we shall attempt to dispose of this rocky case. Hopefully, it will not roll down the judicial mountain again.

This case was remanded to this Court by the Fifth Circuit, Creppel v. United States Army Corps of Engineers, 670 F.2d 564 (CA5-1982). Its factual and procedural history to that point is well chronicled therein and need not be repeated here. See Creppel, 670 F.2d at 566-71. The appellate court made clear that the case was not ripe at that time to be resolved on cross-motions for summary judgment; in particular, two areas of concern were delineated.¹

First, because local assurances had not been obtained for the modified flood control project which this Court had approved in Creppel v. United States Corps of Engineers, 500 F. Supp. 1108 (E.D. La. 1980), there existed a possibility that the federal government would have to defray the cost of completing the modified project. This problem was magnified because of a permanent injunction affirmed by the Fourth Circuit Court of Appeal of the State of Louisiana whereby Jefferson Parish was enjoined from any activity other than the completion of the original project. Creppel v. Parish of Jefferson, 384 So. 2d 853 (La. App. 4th Cir. 1980), cert. denied, 392 So. 2d 689 (La. 1980). However, the state appellate court affirmed the Jefferson Parish district court's injunction predicated on the fact that a bond issue had been passed and taxes assessed on the representation to taxpayers that those funds would be used to construct the flood control/reclamation project. Because of that representation, the appellate court stated:

. . . [T]he pumping station construction cannot be abandoned merely on the threat of stoppage by federal authority, but must be continued until the authority with supremacy exercises that power (which has never been used previously in any case.) Abandonment based on heresay cannot be approved, and the citizens of the drainage district are entitled to injunctive relief.

Creppel v. Parish of Jefferson, 384 So. 2d at 856.

In a footnote, the court explained that if a federal veto of the project occurred, the Jefferson Parish Council need not attempt to overturn the veto. However, it was necessary that the Council proceed at least to the point of a veto. Creppel, 384 So. 2d at 856 n.5. Furthermore, the court expressly stated:

Thus we do not reach the issue of whether plaintiffs are entitled to injunctive relief as grantors of servitudes of defendants' contention that damages in this respect caused by abandonment of the project can be compensated in money and are not a basis for injunction.

Id. at n.6. This decision was rendered on May 16, 1980; rehearing was denied on July 3, 1980; writs were denied on October 6, 1980. Creppel, 392 So. 2d 689 (La. 1980).²

[19 ELR 20135]

A second issue raised by the Fifth Circuit was whether section 404 of the Clean Water Act might prevent completion of the project. In the late 1960's and early 1970's, an environmental watershed had occured concerning the value of America's wetlands. What once had been considered a menace to health was now recognized as a boon, if not a necessity, for the maintenance of a stable ecological environment. The Clean Water Act of 1972 is but one manifestation of that change.

Faced with these issues, we remanded the case back to the Corps on September 17, 1982, to ascertain whether the Parish of Jefferson was willing and able to furnish the necessary assurances of local cooperation to implement the modified project as described in the "Wilson Order," whether section 404 of the Clean Water Act prohibited the completion of the Wilson Order project, and whether EPA would exercise its veto authority under section 404(c) of the Clean Water Act to prevent completion of the modified project.

The federal defendants filed their first status report on January 17, 1983. Contained therein was a letter from Jefferson Parish dated July 28, 1982, which stated that the Parish's preference was to complete the original project, but that it had been willing to consider the modified project. However, as a result of the state litigation previously discussed, the Council Chairman wrote:

In view of this judgment, the Parish of Jefferson is presently enjoined from taking any action which would be an indicia, or a step towards, abandonment of the original project. Such an action would obviously place the Parish of Jefferson in the position of being in contempt of Court. Colonel Sands, in his aforementioned Findings of Fact, LMNOD-SP (L.T.M.A.e 767 dated 19 October 1979, recognized that the Parish of Jefferson was not free to voluntarily adopt the modified project because of the existing State Court judgment.³

Bayou Aux Carpes Rec. at 296. As to the question whether EPA would invoke its veto over the modified project, by letter of February 4, 1983, the Court was informed that it would not. Bayou Aux Carpes Rec. at 332-333.

Because of the explicit instructions of the Fifth Circuit with respect to the necessity of gaining local assurances and the apparent lack thereof, we signed an Order on August 9, 1984, requiring the original project (the only project for which there were assurances) to be completed. On September 19, 1984, we granted defendants' motion for reconsideration. By order dated December 14, 1984, we stayed the Order of August 13, 1984, to allow EPA to decide whether to commence section 404(c) proceedings. If proceedings were commenced by December 18, 1984, the Order of August 13, 1984, would be stayed an additional nine months for the EPA to make its determination. Indeed the EPA exercised its power under section 404(c) and, because of certain difficulties, was given until October 18, 1985, to make its Final Determination.

On October 17, 1985, that Final Determination was filed with this Court. The area which EPA chose to evaluate is a certain area which the EPA called "The Bayou Aux Carpes Site." This area consists approximately of 3000 acres of wetlands which is the location of the original Harvey Canal-Bayou Barataria Flood Control Project. Bayou Aux Carpes Rec. at 1393. In its Final Determination, the EPA, inter alia, specifically restricted any discharges for the purpose of completing the original project but did not restrict discharges necessary for the completion of the modified Harvey Canal-Bayou Barataria Levee Project as described in the Wilson Order of November 16, 1976.

Based on EPA's Final Determination, government defendants filed a Motion for Entry of Order of Dismissal which was opposed by plaintiffs. We reserved our ruling on this motion on April 2, 1986, in order for EPA to be brought into the suit. An Amended Complaint was filed which added not only a new defendant — EPA — but new issues with respect to the Lafitte-Larose Highway and the Lafitte-Marerro Waterline Project.

It was at this point that Cross-Motions for Summary Judgment were filed and which we now address.

III. Statutory and Regulatory Framework

Congress in 1972 enacted the basic legislation which is now known as the Clean Water Act (hereinafter "CWA") for the purpose of restoring and maintaining the chemical, physical and biological integrity of the Nation's waters. 33 U.S.C. § 1251(a). Section 301(a) of the CWA, 33 U.S.C. § 1311(a), forbids the discharge of any pollutant into navigable waters unless permitted by the Corps pursuant to section 404 of the CWA, 33 U.S.C. § 1344. The definition of "navigable waters" has been given the broadest possible interpretation and includes wetlands. 40 C.F.R. § 230.3(t); 33 C.F.R. § 323.2(c); United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S. Ct. 455 [16 ELR 20086] (1985).⁴ Congress added another safeguard, that being the authority granted to EPA to veto the action of the Corps or to restrict certain areas.

This discharge of dredged or fill material is therefore regulated under section 404 by the Army Corps of Engineers. Under the statutory framework, EPA's Administrator has the authority to veto a Corps permit or to restrict or prohibit discharges in certain areas. CWA, section 404(c), 33 U.S.C. § 1344(c); Bersani v. United States Environmental Protection Agency, 674 F. Supp. 405 [18 ELR 20001] (N.D.N.Y. 1987). See United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S. Ct. 455 [16 ELR 20086] (1985). Section 404(c) grants the Administrator of EPA authority to prohibit, deny or restrict a Corps-issued permit for the use of a specific site when the Administrator determines that the proposed discharge "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) (emphasis added). The EPA has defined "unacceptable adverse effect" as one which has an "impact on an aquatic or wetland ecosystem which is likely to result in significant degradation of municipal water supplies (including surface or ground water) or significant loss of or damage to fisheries, shellfishing, or wildlife habitat or recreation areas." 40 C.F.R. § 231.2(e). The procedures for the exercise of this power are contained in 40 C.F.R. Part 231. The regulation defines "unacceptable adverse effects" as follows:

"Unacceptable adverse effects" means impact on an aquatic or wetland ecosystem which is likely to result in significant degradation of municipal water supplies (including surface or ground water) or significant loss of or damage to fisheries, shellfishing or wildlife habitat or recreational areas. In evaluating the unacceptability of such impacts, consideration should be given to the relevant portions of the section 404(b)(1) Guidelines (40 CFR Part 230).

40 C.F.R. § 231.2(e).

IV. Discussion

A. Summary of Arguments as to the Section 404(c) Restrictions on the Bayou Aux Carpes Area

Plaintiffs maintain that section 404(c) cannot prohibit completion of the original project and have moved this Court to authorize the completion of the original project. They argue that the EPA's section 404(c) power is discretionary in relation to restricting a potential site whereas "[f]lood control projects fall under the auspices of the Army Corps of Engineers, [sic] Section 701-c,⁵ is a congressional directive requiring completion of the original project due to lack of local assurances for the proposed modified project." Memorandum in Support of Plaintiff/Landowners' Motion For Summary Judgment at 4. Plaintiffs also question whether the regulations under section 404(c) are valid because the regulation's definition of "unacceptable adverse effect" on the environment is too narrow. They argue that there is no authority for the exercise of a "veto" in this case, and that even if the regulations were valid, that EPA's actions were arbitrary, capricious and not supported by the evidence.

The federal defendants contend that EPA acted within its discretion in making the section 404(c) determination, and that its determination is amply supported by the record. Furthermore, they maintain that Jefferson Parish's agreement to construct the pumping [19 ELR 20136] station is subordinate to the requirements of the Clean Water Act. Also defendants argue that plaintiffs may not be awarded injunctive relief on a "taking" claim; they may only seek monetary relief in the United States Court of Claims under the Tucker Act.

B. Standard of Review

With these cross-motions for summary judgment, under Fed. R. Civ. P. 56(c), we may grant summary judgment when there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. As discussed in the opening section of this opinion, since we are reviewing the action of an administrative agency, we must look to its record. If the agency's decision cannot be sustained on that record, the case must be remanded to the agency. (See discussion above at 1-2).

The test for a trial on this matter has not been met. Although the plaintiffs have attempted to raise material questions of fact, we find as a matter of law that as to EPA's § 404(c) determination, there are no material questions of fact. The administrative record sets out in great detail the long and arduous task undertaken by the EPA.

In Avoyelles Sportsmen's League, 715 F.2d at 905, the Fifth Circuit delineated the test for a district court to set aside agency action.

In "certain narrow, specifically limited situations," agency action may also be set aside if it is not supported by "substantial evidence," 5 U.S.C. § 706(2)(E), or, in "other equally narrow circumstances" a court may engage in de novo review of the action and set it aside if it is "unwarranted by the facts," 5 U.S.C. § 706(2)(F) . . . . De novo review is authorized only "when the action is adjudicatory in nature and the agency fact finding procedures are inadequate," or "when issues that were not raised before the agency are raised in a proceeding to enforce non-adjudicatory agency action."

For this proposition, the Fifth Circuit relied on Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S. Ct. 814, 823 [1 ELR 20110] (1971). We find that none of these factors is present and thus shall confine our review of EPA's actions to an arbitrary and capricious standard. The Supreme Court in discussing this standard as to the promulgation of rules by an agency stated:

[A] reviewing court may not set aside an agency rule that is rational, based on consideration of the relevant factors, and within the scope of the authority delegated to the agency by the statute . . . . The scope of review under the "arbitrary and capricious" standard is narrow and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made. Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 s. Ct. 239, 245-46, 9 L. Ed. 2d 207 (1962). In reviewing that explanation, we must "consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., [419 U.S. 281, 285; ]95 S. Ct. 438, 442, 42 L. Ed. 2d 447 (1974)[]; Citizens to Preserve Overton Park v. Volpe, [401 U.S. 402, 416, 91 S. Ct. 814, 824, 28 L. Ed. 2d 136 ]1 ELR 20110[ (1971)]. Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to agency expertise.

Motor Vehicle Mfrs. Ass'n. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42-43, 103 S. Ct. 2856, 2866-67, [13 ELR 20672] (1983); Bersani v. United States Environmental Protection Agency, 674 F. Supp. 405, 413 [18 ELR 20001] (N.D.N.Y. 1987). Accord, Sierra Club v. United States Army Corps of Engineers, 772 F.2d 1043, 1051 [15 ELR 20998] (CA2-1985); Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897, 904; Great Salt Lake Minerals and Chems. v. Marsh, 596 F. Supp. 548, 553 (D. Utah 1984). With this instruction in mind, we shall first decide the question of whether the implementing regulations are valid.

V. Findings of Fact and Conclusion of Law

A. Validity of the Regulations

Plaintiffs have argued that the definition contained in the regulations formulated by EPA at 40 C.F.R. § 231.2(e) is so narrow "that it precludes the type of balancing process essential to a determination of whether effects are unacceptable or not." The thrust of this contention is that the term "unacceptable adverse effect" demonstrates congressional intent that a balancing process be used in "which significant adverse environmental effects must be weighed and balanced along with all other considerations of public interest to determine whether such effects are 'acceptable' under the circumstances." Plaintiffs cite City of New York v. United States Environmental Protection Agency, 543 F. Supp. 1084 [12 ELR 21003] (S.D.N.Y. 1981) for this proposition which involves statutes and regulations inapposite to those which we interpret herein.

The plain language of section 404(c) does not require a balancing of environmental concerns against "the public interest." There is no mention of this kind of "statutory balancing" that is present in City of New York.⁶ Furthermore, as EPA noted in the preamble to the regulation in question, "[w]hen Congress intended EPA to consider [nonenvironmental] costs under the Clean Water Act, it said so (see, for example, section 304(b)(2)(B)). It is significant that in paraphrasing the criteria for section 404(c), the Conference Report merely referred to activities which 'adversely affect' the listed resources." 44 Fed. Reg. 58078.

Indeed the legislative history of this statute reflects congresional intent to allow the Corps to continue to have jurisdiction over discharge and dredge permits. However, EPA was given specific "veto" power. Senator Muskie, discussing the three "clear responsibilities" of the Administrator under this statute and in describing the compromise reached in Conference Committee, stated:

Third, prior to the issuance of any permit to dispose of spoil, the Administrator must determine that the material to be disposed of will not adversely affect the municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas) wildlife or recreational areas in the specified cite. Should the Administrator so determine, no permit may issue.

See Conference Report and Debates reprinted in 1 Legislative History of the Water Pollution Control Act Amendments of 1972 at 177 (emphasis added) (hereinafter "Leg. History"). Thus, according to the legislative history, no economic arguments require consideration. Indeed, in discussing the disposal of dredged spoil into fresh water under section 404, Senator Muskie stated,

The only justification for continuing to utilize open water disposal is the cost of the alternatives. The Conferees believe that the economic argument alone is not sufficient to override the environmental requirements of fresh water lakes and streams. Therefore, early action should be taken by the Administrator to develop alternative site and alternative methods for disposal.

1 Leg. History at 178 (emphasis added). It could be argued that this statement was not intended to apply to the filling of wetlands; however, the Supreme Court in Riverside determined that the Corps had not been unreasonable in its decision that adjacent wetlands are inseparably bound up with the waters of the United States, considering the Corps' and EPA's technical expertise.

. . . . In view of the breadth of the federal regulatory authority contemplated by the [CWA] itself and the inherent difficulties of defining precise bonds to regulable waters, the Corps' ecological judgment about the relationship between waters and their adjacent wetlands provides an adequate basis for a legal judgment that the adjacent wetlands may be defined as waters under the Act.

[19 ELR 20137]

United States v. Riverside Bayview Homes, Inc., 106 S. Ct. 455, 463 [16 ELR 20086] (1985).

An agency's construction of a statute it is charged with enforcing is entitled to deference if it is reasonable and not in conflict with the expressed intent of Congress. United States v. Riverside Bayview Homes, Inc., 474 U.S. at __, 160 S. Ct. at 461; Chemical Manufacturers Assn. v. Natural Resources Defense Council, Inc., 470 U.S. 116, 105 S. Ct. 1102, 84 L. Ed. 2d 90 [15 ELR 20230] (1985); Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. __, 104 S. Ct. 2778 [14 ELR 20507] (1984). This Court's review is limited to questioning whether it is reasonable, in light of the language, policies and legislative history of the CWA for EPA to promulgate the regulations at issue herein. Riverside, 474 U.S. at __, 106 S. Ct. at 461. After having examined these factors, we find that the disputed regulations of EPA contained at 40 C.F.R. Part 231 are valid and that there is ample authority for an exercise of its "veto" in this case.

As concerns plaintiffs' contention that under 33 U.S.C. 701c, the original flood control project overrides EPA's veto authority, plaintiffs' characterization misses the mark. Even in evaluating a potential flood control project, Congress has stated its "sense" that flood control is a proper federal activity in conjunction with the states, and it should participate in projects if "the benefits to whomever they may accrue are in excess of the estimated costs and if the lives and social security of people are otherwise diversely affected" 33 U.S.C. § 701a. Obviously, Congress has not put flood control unequivocally over environmental concerns; a balancing is contemplated by virtue of that language. The Wilson Order exemplifies the federal government's concern in balancing both of these vital, important areas. Furthermore, provided that we find EPA's actions not arbitrary and capricious, the problem with local assurances may be overcome as will be discussed later. Nonetheless, the language cannot be seen as a congressional mandate for the completion of the original project, nor can it override the obvious power granted to EPA by Congress.

B. Arbitrary and Capricious Actions

Our next inquiry is whether EPA's actions under this regulation were arbitrary and capricious. Under section 404(c), EPA is charged with two duties: it must provide for notice and public hearings, and it must evaluate the possible effects a discharge will have on municipal water supplies, shellfish beds and fishery areas, wildlife or recreation areas. 33 U.S.C. § 1344(c); Bersani v. United States Environmental Protection Agency, 674 F. Supp. 405, 413 [18 ELR 20001] (N.D.N.Y. 1987).

We must then determine whether EPA acted properly. As stated by the Fifth Circuit Court of Appeals in Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897 [13 ELR 20942] (CA5-1983),

. . . This standard of review is highly deferential. A final agency decision is "entitled to a presumption of regularity." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S. Ct. 814, 823, 28 L. Ed. 2d 136 [1 ELR 20110] (1971). While the court "must consider whether the decision was based on a consideration of the relevant factors and whether there has been an error of judgment," and while "this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one." Id., at 416, 91 S. Ct. at 824. In Overton Park, the Supreme Court stated unequivocally that the "court is not empowered to substitute its judgment for that of the agency." Id.; accord Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285, 290, 95 S. Ct. 438, 442, 444, 42 L. Ed. 2d 447 (1974); Louisiana environmental Society Inc. v. Dole, 707 F.2d 116, 118-19 [13 ELR 20693] (5th Cir. 1983); City of Houston v. FAA, 679 F.2d 1184, 1190 (5th Cir. 1982).

Avoyelles, 715 F.2d at 904.

1) Notice and Public Hearing

Under the applicable regulations, EPA, through the Regional Administrator (hereinafter "RA"), initiates the § 404(c) process by notifying the Corps District Engineer, the record owners of the property, and the applicant, when appropriate, in writing, of the intent to issue public notice of the proposed determination to prohibit or otherwise restrict the use of a defined site as a disposal area for dredged or fill material.⁷ If satisfactory corrective measures are not proposed within 15 days, then public notice of the proposed restriction must issue in compliance with 33 C.F.R. § 231.3(b) and (d). In the event there is a public hearing, public notice of that hearing must be made as well in compliance with 33 C.F.R. § 231.3(c) and (d).

Plaintiffs contend that two infirmities in EPA's compliance with these regulations demonstrate that the agency's handling of this case has been unreasoned, biased and arbitrary. The first problem deals with the fact that although "a summary of the facts on which the proposed determination was based" is required under 33 C.F.R. § 231.3(b)(1), "the EPA had not yet completed its gathering and review of the facts" and thus the proposed determination was tainted. We are unpersuaded by this argument.

First, there is ample evidence in the record that EPA substantially complied with these regulations. Because of difficulties concerning the identification of landowners of the entire tract, the notice of publication of the proposed determination and the hearing were published simultaneously. Bayou Aux Carpes Rec. 429-439. It would appear "a summary of facts on which the proposed determination was based" was not included in the newspaper notices; however, in the announcement contained in the Federal Register, those facts are extensively revealed.

Plaintiffs claim that since "EPA had not yet completed its gathering and review of the facts, "EPA 'rushed to publication,' in an obvious expression of pre-determined and pre-judged decision that it had made." Such an argument disregards the historical involvement of EPA in this area and, frankly, the fact that the document of which they speak was a proposed determination. EPa and the Corps had ample evidence to support EPA's proposal by virtue of the proceedings in the late 1970's regarding the land reclamation project and EPA's involvement in reviewing Environmental Impact Statements and § 404 permit applications for the Marrero-Lafitte Waterline and Lafitte-Larose Highway projects. We find that the fact that studies were not completed and reported at the time of publication is not evidence of arbitrary and capricious actions on the part of EPA. EPA even responded to this argument before its final determination was issued, and we find it highly persuasive and conclusive proof that this "factor" is irrelevant.

Plaintiffs next argue that 40 C.F.R. § 231.4(a) "mandates that comments also be solicited upon 'corrective action that could be taken to reduce the adverse impact of the discharge . . . .'" Plaintiffs' interpretation is clearly erroneous. Section 231.4(a) has nothing to do with the procedures for solicitation of comments to be contained in a public notice. This section is merely instructive as to what interested persons' comments should contain. Indeed, comments are to include corrective action proposals and the RA or his designee must consider them in preparing his Recommended Determination.

The only specific "corrective action" proposed by plaintiffs was for the United States Park Service to purchase the plaintiffs' land. See Letter from Joseph E. Leblanc, Jr. to the Secretary of the Interior dated May 23, 1985, Bayou Aux Carpes Rec. pp. 893-99. This proposal was considered by the RA, and this area is only a fraction of the Bayou Aux Carpes study area and would not adequately resolve the broader ecological concern with respect to the entire hydrologically linked area. Furthermore, even though the Park Service and EPA are government agencies, they are independent of each other. See Responsiveness Summary prepared by the EPA, dated August 30, 1985, Bayou Aux Carpes Rec. at 798 and 1411.

Plaintiffs argue that there is a "Constitutional requirement" that corrective action be considered and that section 404(c) authority be exercised in the least intrusive manner possible. First, the only proposed corrective action was considered as discussed above. Second, the holding of the Supreme Court in United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S. Ct. 455, [16 ELR 20086] (1985), defeats this contention. The Supreme Court reversed the Sixth Circuit's narrow construction of section 404 which the Sixth Circuit had rendered in order to avoid a taking problem. The Supreme Court reversed because "neither the imposition of a permit requirement itself nor the denial of a permit necessarily constitutes a taking." The Court continued:

[T]he possibility that the application of a regulatory program [19 ELR 20138] may in some instances result in the taking of individual pieces of property is no justification for the use of narrowing constructions to curtail the program if compensation will in any event be available in those cases where a taking has occurred. * * * Because the Tucker Act, 28 U.S.C. § 1491, which presumptively supplies a means of obtaining compensation for any taking that may occur through the operation of a federal statute, see Ruckelshaus v. Monsanto Co., supra, at __, 104 S. Ct. at __, is available to provide compensation for takings that may result from the Corps' exercise of jurisdiction over wetlands, the Court of Appeals' fears that application of the Corps' permit program might result in a taking did not justify the court in adopting a more limited view of the Corps' authority than the terms of the relevant regulation might otherwise support.

Id. at 460 (footnotes omitted). Thus, the taking question is not properly before us. If plaintiffs believe that with EPA's action, they are entitled to compensation for some kind of taking, that is a matter to be brought before the United States Claims Court under the Tucker Act, 28 U.S.C. § 1491, and is not within the jurisdiction of this Court. Bowles v. U.S. Army Corps of Engineers, 841 F.2d 112, 113 [18 ELR 20838] (CA5-1988). On this basis, we cannot find EPA's actions to be arbitrary and capricious.

Plaintiffs have also argued that there was some fould play at the public hearings because "[i]ndividuals present at [it] were met by a hastily assembled 'board' of 'Kangaroo Court' ecological activists pre-set in their determinations of the issues to be aired publicly that evening." The regulations clearly do not require section 404(c) hearings be conducted by, or decisions be made by, a board with "industrial or public interest or parish members." A section 404(c) public hearing under 33 C.F.R. § 231.4(c) "shall be conducted by the Regional Administrator, or his designee, in an orderly and expeditious manner." This requirement was met.

Therefore, we find that the notice and hearing requirements were fulfilled by EPA and are not grounds for finding its actions arbitrary and capricious.

2. EPA's Evaluation of Unacceptable Adverse Effects

Plaintiffs have urged in their Memorandum in Opposition to Federal Defendants' Motion for Summary Judgment and Incorporated Facts numerous reasons why the Final Determination is not supported by the evidence relied upon by EPA. Plaintiffs claim that the evidence was too general in nature and not site specific as concerns the EPA study area and its value as a viable wetland; furthermore, samplings allegedly were too limited in nature. Plaintiffs also take issue with the findings concerning adverse effects with respect to the recreational value of the area as well as harmful effects on Jean Lafitte National Park in the event of draining the subject area. Also, issues were raised concerning EPA's "ignoring" the historical actions which precipitated this suit and the "unauthorized" Final Determination because of its lack of regard for "public interest." Finally, they allege that EPA has ignored the need to complete the original project to alleviate flooding in the Crown Point area.

Each of these arguments was raised practically verbatim by the plaintiffs in a letter dated August 19, 1985, from their attorney, Joseph LeBlanc, Jr., to EPA, which was received during the comment period between the public hearings and the publication of the Recommended Determination. Bayou Aux Carpes Rec., at 748-65. EPA responded reasonably to each of the plaintiffs' concerns therein and thus acknowledged and considered these arguments. Bayou Aux Carpes Rec., at 791-98. This evidence persuades us that EPA's action concerning the Bayou Aux Carpes area was not arbitrary and capricious. We are not empowered to substitute our judgment for that of the agency unless there is no support in the record for EPA's findings. Buttrey v. United States, 690 F.2d at 1184. In each instance, EPA provided a rational basis for its decision. In addition, we find the record amply supports EPA's decision. See Bayou Aux Carpes Rec. at 27-228.

Basically, EPA had to determine whether the draining of the Bayou Aux Carpes area would have an unacceptable adverse effect on municipal water supplies, shellfish beds, fishery areas, wildlife, or recreational areas. If the original Harvey Canal-Bayou Barataria Flood Control Project would harm the wetland and would result in significant degradation of any one of the environmental interests listed above, EPA would be empowered to restrict the site. Because EPA adjudged the area as a valuable environmental resource whose destruction would significantly harm all of the enumerated factors except for municipal water supplies, it restricted the Bayou Aux Carpes study area.

The record supports EPA's findings that the study area contributes plant biomass and nutrients to the Barataria Bay Estuary, has valuable shellfish beds, and plays a distinct role as a fisheries resource. Bayou Aux Carpes Rec. at 36, 55-56 and 132. There is also evidence that this area has value for its wildlife resources. See Fish and Wildlife Resources of the Bayou Aux Carpes Drainage Area, Jefferson Parish, Louisiana, June, 1985, U.S. Fish and Wildlife Service — Division of Ecological Services, Lafayette, Louisiana, Bayou Aux Carpes Rec. at 114-138.

There is ample evidence that the study area provides recreational value of its own because of the public access by way of the Southern Natural Gas Pipeline Canal that connects Bayou Barataria with the water courses within the site. Furthermore, the hydrologic interdependency between the Jean Lafitte National Historical Park and the study area is amply demonstrated in the record. Bayou Aux Carpes Rec. at 822. Thus, EPA's conclusions concerning the value of all of these resources are reasonable.

The next inquiry is whether the record supports EPA's finding that the drainage project would result in various unacceptable, adverse impacts on these resources. Again, EPA's conclusion in this regard is reasonable. As stated above, even if only one of the resources would be affected, EPA is authorized to restrict an area. The record reflects without question that the drainage of this area would have a devastating effect on the Jean Laffitte National Historical Park and thus on the recreational value of the area, in general. Bayou Aux Carpes Rec. at 160-170. Furthermore, it is unquestionable and logical that if an area which supports and breeds wildlife, fish and crustaceans is drained, it can no longer support those same species. Additionally, this area, by virtue of its being a wetland, helps to purify urban run-off and creates biomass that is a necessary part of the food chain for the aquatic species in the Barataria Basin; it cannot be drained and still perform the same function. These conclusions are supported throughout the record. Therefore, we find that EPA did not act arbitrarily or capriciously in its invocation of its section 404(c) power over the Bayou Aux Carpes area.

C. Remaining Issues Raised by Defendants' Motion for Summary Judgment

Having denied plaintiffs' Motion for Summary Judgment with respect to the review of EPA's actions, we now turn to the remaining issues raised by defendants' Motion for Summary Judgment. We first review those claims added by plaintiffs' Amended Complaint. In the Amended Complaint, plaintiffs raised claims concerning the Marrero-Lafitte Waterline and the Lafitte-Larose Highway.

The Marrero-Lafitte Waterline was a project approved by the Corps of Engineers to install and maintain a waterline to increase the water supply from Marrero to Lafitte in order to solve a severe water shortage in the area. Originally, the pipeline was to be 36 inches in diameter in Marrero decreasing gradually to 18 inches in diameter in Lafitte. EPA objected to such a large supply of water in the area citing probable harm to the wetlands in the same region as the Harvey Canal-Bayou Barataria Flood Control Project. Because the funds to be expended on this line were Department of Housing and Urban Development ("HUD") funds, the project properly was reviewed and commented on by EPA. See 42 U.S.C. § 1857h-7(a); 40 C.F.R. § 1503.2 (1985).

EPA found the proposed 18-inch line to be larger than required by virtue of the present population and argued vehemently for the line to be reduced to 16 inches. The reasoning was that a larger line would induce growth in an area of wetlands that needed protection. Finally, after years of negotiations, a plan was approved to reduce the line to 16 inches. Part of the final arrangement was a Memorandum of Agreement ("MOA") between EPA and Jefferson Parish which became part of the Corps' final permit. In the agreement, which was executed on November 30, 1979, Jefferson Parish agreed not to provide service from the waterline to the Bayou Aux Carpes area without prior approval of the Corps and EPA. Administrative Excerpts Relating to the Marrero-Lafitte Waterline Rec. at 103-06 (hereinafter "Marrero-Lafitte Waterline Rec.")

Out of these transactions, plaintiffs have amended their Complaint and have alleged the following:

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a) that the EPA acted arbitrarily and capriciously "in reducing the 36-inch waterline to 16-inch below the V-shaped Levee, and took plaintiffs' land out of commerce and restricted and stopped future development of the 40,000 acres in lower Barataria/Lafitte areas." Amended Complaint PXI.

b) that EPA "refused to allow the Water Department of Jefferson to have any interconnecting lines along plaintiffs' property, although plaintiffs are paying taxes in the water district." Amended Complaint PXII.

c) that the MOA between EPA and Jefferson Parish contained "conditions" to make "plaintiffs' land wetlands and out of commerce, which acts are arbitrary and capricious." Amended Complaint PXV.

d) that EPA took "certain steps with HUD to stop the waterline by stopping Jefferson Parish from receiving any HUD grants which action was arbitrary and capricious." Amended Complaint PXVI.

e) that the Corps permit for the 16-inch waterline was arbitrary and capricious in that it issued the permit only after EPA approval of a 16-inch waterline "ignoring the bond issue for a 36" water line, the application of Jefferson Parish for the 36" water line, and did bring in other factors, namely rules, regulations, conditions and supervisory impositions, and threats of penalties . . . [as] set forth in the January 28, 1980, letter by Col. Thomas A. Sands [of the Corps] to the Jefferson Parish Department of Public Utilities . . . ." Amended Complaint PXVII.

Furthermore, plaintiffs did not state what relief is sought with regard to the waterline. Defendants argue that these allegations are barred by the statute of limitations and by the doctrine of laches.

Without commenting upon the appropriateness of reviewing these accusations, we find that these additions are time barred. Under 28 U.S.C. § 2401, any action brought against the United States is barred unless the complaint is filed within six years after the right of action first accrues. The Fifth Circuit has held that this statute of limitations applies to APA-based challenges to administrative actions. Geyen v. Marsh, 775 F.2d 1303, 1306-7, reh'd denied, 782 F.2d 1351 (CA5-1985). The EPA's agreement with Jefferson Parish was signed on November 30, 1979.¹¹ [sic] Marrero-Lafitte Rec. at 100. The Corps issued the permit on January 28, 1980. HUD was informed of the resolution of the EPA objections by letter dated April 14, 1980. The Amended Complaint was filed on May 8, 1986. Thus the statute bars these amendments.

Plaintiffs have offered no response to counter the arguments raised by defendants; however, if under Fed. R. Civ. P. 15, these amendments related back to those activities covered in the original Complaint, they may not be time barred. The first criterion under Rule 15 is that the new claim asserted "arose out of the conduct, transaction or occurrence set forth . . . in the original pleading." The conduct covered in the original pleading concerned the Harvey Canal-Bayou Barataria Flood Control Project. Albeit these allegations have something to do with the same geographical area and the same environmental concerns, and EPA examined each project in that context, we cannot find that the Lafitte-Marrero waterline Project arose out of the same conduct, transaction, or occurrence as the actions concerning the Flood Control Project and the allegations contained in the Original Complaint.

Therefore, any claims raised by plaintiffs against EPA or the Corps of Engineers arising from the negotiations and construction of the waterline is barred by the statute of limitations, thus we do not reach the laches argument.

As concerns the Lafitte-Larose Highway Project, plaintiffs have argued that the requirement of the Corps and EPA that four culverts be placed under the highway keeping plaintiffs' land "in a wetland status" was arbitrary and capricious. Also, they contend that EPA

used its influence with the U.S. Corps of Engineers to permit the digging of a wide canal along the Lafitte Highway property of plaintiffs, leaving earthen dams in the canal, thus causing the water to flow from the highway right-of-way into the wide canal into plaintiffs property, endeavoring to keep it in a wetland status.

Amended Complaint PXIII. Again, note that plaintiffs do not request any specific remedial action concerning these claims.

The Lafitte-Larose Highway permit was issued in October of 1976. Lafitte-Larose Highway Excerpts Rec. at 69. Under 28 U.S.C. § 2401, any allegations concerning the appropriateness of the Corps' or EPA's actions are barred. Furthermore, as noted above, if plaintiffs allege some kind of taking by virtue of agency action, their remedy would be under the Tucker Act and must be brought in the Court of Claims.

Finally, there remains three allegations contained in plaintiffs' Amended Complaint for which defendants moved for summary judgment.

Plaintiffs' "averred" in the Amended Complaint that EPA's Final Determination was arbitrary and capricious by virtue of EPA's prohibiting the Corps to use the Bayou Aux Carpes site as a disposal site for material resulting from Corps dredging of Bayou Barataria. EPA's decision in this instance is no more arbitrary and capricious than in its other findings. The same reasons it provided for the general prohibition apply to this dredging. We find it reasonable. Bayou Aux Carpes Rec. at 798, 1414-15 and 1445.

As to plaintiffs' contention in the Amended Complaint that the EPA's exception granted to Southern Natural Gas Company's discharge, which requires the company to place dredge material in piles with breaks in between to allow sheet flow to adjacent wetlands, is a reason to find the Final Determination arbitrary and capricious is specious at best. Continually, EPA demonstrated in the record the necessity to allow for "sheet flow" of the water in this ecosystem. EPA has amply supported this determination, and we find it reasonable.

Finally, plaintiffs in the Amended Complaint allege that the granting of a permit to discharge fill from the Harvey Canal on the Shushan property is a reason for the Final Determination to be found arbitrary and capricious. This "permit" has nothing to do with the Final Determination at issue herein and in fact is a notice of a servitude allowing disposal on the Shushan property. Plaintiffs' argument is without merit. See Amended Complaint, Exhibit 7.

Therefore, we find defendants' Motion for Summary Judgment as concerns plaintiffs' Amended Complaint and EPA's section 404(c) Final Determination meritorious, and thus we will grant defendants' Motion to that extent.

This leaves the Original Complaint still in question. We cannot order the completion of the original project since we have sustained EPA's restrictions with respect to this area. We cannot order the completion of the project under the Wilson Order since local assurances do not exist. Therefore, we will remand this case again to the Corps in order to see if Jefferson Parish will not grant local assurances. We take judicial notice that the factors under which the initial injunction was granted have so materially changed that Jefferson Parish should be able to have the injunction lifted and thus grant local assurances. By doing so, at least the flood control project could be properly completed and the present residents could benefit from it. If Jefferson Parish grants these assurances, then we will order the completion of the project pursuant to the Wilson Order. If not, we will have no other recourse but to grant defendants' Motion to Dismiss since the completion of the original project is an impossibility, and the Wilson Order project cannot be ordered to completion without assurances.

Order

This matter having come before this Court on Federal Defendants' Motion for Reconsideration of the Court's August 28, 1987 Decision, and this Court having considered the memoranda submitted by counsel along with the applicable law, and for the reasons set forth in our Opinion issued this date,

It is now ORDERED:

1. That Federal Defendants' Motion for Reconsideration be, and hereby is, GRANTED.

2. That this case be remanded to the United States Army Corps of Engineers in order to supplement the record as to whether the Parish of Jefferson will now grant local assurances to defray the cost of completing the Harvey Canal/Bayou Barataria Levee Project (the "Project") pursuant to the directives contained in the Order issued by Brigadier General Drake Wilson on November 16, 1976, in connection with the Project.

3. This Court shall retain jurisdiction to issue any and all orders or rulings necessary in aid of the proceedings upon remand.

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4. The Court further directs counsel for the parties to furnish the Court with periodic reports concerning the status of the proceedings upon remand every thirty days from the date of this Order.

1. It should be noted that the Fifth Circuit did not disturb this Court's findings concerning the propriety of the Corps' decision to modify the Harvey Canal-Bayou Barataria Project. It found ample support for the modification contained in the Wilson Order of November 16, 1976. Creppel, 670 F.2d at 571-74.

2. It is important to note here that Jefferson Parish did attempt at that time to obtain a permit to complete essentially the original project independently of any federal project. Bayou Aux Carpes Rec. 235. This permit was denied on August 28, 1980. That proposed project called for reclamation of 3,100 acres of wetlands as well as flood protection. The Corps, in 1980, believed that there was nonwetlands acreage that would be suitable for the growth of Jefferson Parish and denied Jefferson Parish a permit under section 404 of the Clean Water Act.

3. Note that at the time this letter was written, the Corps had vetoed the completion of the original project. Arguably, with that veto, the circumstances of the injunction had so materially changed that it might have been lifted then.

4. It is not contested that these lands are subject to these regulations; however, there is a small tract located within the subject area which the EPA admitted was not wetlands and, therefore, is not subject to regulation. Bayou Aux Carpes Rec. at 1383-85, 1517. This fact was noted in the Final Determination, and this tract is specifically not included in EPA's determination. Bayou Aux Carpes Rec. at 1401.

5. 33 U.S.C. 701c simply deals with the mechanics of a federal flood control project and harkens back to the need for local assurances. (See discussion above at 3)

6. City of New York dealt with the interpretation of a particular section of the Marine Protection, Research and Sanctuaries Act, Pub. L. 92-532, 86 Stat. 1052 (1972), 33 U.S.C. § 1412(a), that set out in detail criteria that EPA was to consider with respect to dumping public waste into the ocean. "By enumerating several factors that inevitably conflict — such as the need for dumping and its effectsupon the environment — and requiring the Administrator to consider them, the Act forces the EPA to balance statutory factors." City of New York, 543 F. Supp. at 1089 (emphasis added).

7. 33 C.F.R. § 23.3(a).

11. [sic] There are certain discrepancies concerning when the MOA was signed. According to the various documents in the record, it was signed on November 20, 1979 (See Marrero — Lafitte Rec. at 101 and 116); however, the stamped date on the document is November 30, 1979, and we find that this is the correct date.