District Court Overturns Agency Decisions on King William Reservoir

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SandBar 8:3, October, 2009 Recommended citation: Sims, Misty A. , District Court Overturns Agency Decisions on King William Reservoir , 8:3 SandBar 1 (2009). District Court Overturns Agency Decisions on King William Reservoir Alliance to Save the Mattaponi v. United States Army Corps of Eng’rs, 2009 U.S. Dist. LEXIS 57217 (D.D.C. Mar. 31, 2009). *Misty A. Sims, JD, LL.M* Limiting the Environmental Protection Agency’s (EPA) discretion under the Clean Water Act (CWA), the U.S. District Court for the District of Columbia recently held that the EPA is obligated to veto a CWA permit if “adverse effects” are likely to result.1 The ruling relates to the King William Reservoir project in Virginia, a 1,526-acre project that would provide additional water to the region and, according to the EPA, “… would represent the largest single permitted wetland loss in the Mid-Atlantic region in the history of the Clean Water Act Section 404 program.”2 Background In 1984, the Norfolk District of the U.S. Army Corps of Engineers (Corps) conducted a nine-year study which forecasted that the Lower Peninsula of Virginia would require 40 million gallons per day of additional water by 2030. In response, the City of Newport News submitted an application to the Corps for permits to construct the King William Reservoir, which would be created by building a dam across Cohoke Creek. The project would require the excavation, fill, destruction, and flooding of approximately 403 acres of freshwater wetlands. The Virginia State Water Control Board (Board) issued the City a permit for the proposed project in December 1997. A group of organizations led by the Alliance to Save the Mattaponi (Alliance) and the Mattaponi Indian Tribe (Tribe) brought an action against the Board for issuing a building permit for the project, claiming the project would cause extensive environmental damage. The Virginia Supreme Court in Alliance to Save the Mattaponi v. Virginia upheld the issuance of permits for the reservoir in 2005.3 Also in 2005, the Corps issued its final record of decision (ROD) and issued a CWA permit for the company to place dredged or fill material into wetlands. The Corps found the project was in the public interest and would not cause or contribute to significant degradation of the waters of the United States, given Newport News’ wetland mitigation plan that included the restoration and creation of 806 acres of wetlands. Although the EPA has the authority to veto the Corps’ issuance of a permit, it abstained. The Alliance and the Tribe filed suit in the U.S. District Court for the District of Columbia, claiming that the Corps’ approval of the permit and the EPA’s failure to veto it were arbitrary and capricious. The plaintiffs challenged the Corps’ issuance of the permit “on the grounds that the determinations of the Corps that the Project was the least damaging practicable alternative, that it would not cause or contribute to significant degradation of the waters of the United States, and that it was in the public interest were arbitrary and capricious”4 Corps’ Permit The CWA prohibits the Corps from issuing a permit if there is a less damaging practicable alternative. The plaintiffs argued that the Corps’ issuance of the permit was arbitrary and capricious because it rejected less damaging and otherwise practicable alternatives by relying on an outdated analysis in the final EIS. The court found that before determining that a project which would flood 403 acres of functioning wetlands is the least damaging practicable alternative, the Corps must do more than give vague explanations about the potential adverse effects of other alternatives. Given that the CWA “compels that the [least damaging] alternative be considered and selected unless proven impracticable,”5 the court found that the Corps acted arbitrarily and capriciously when it determined that the project was the least damaging practicable alternative based on mere assertions that other alternatives may not meet needs and could be more damaging. The court ordered the Corps to adequately explain why there is no less damaging practicable alternative, or reconsider its determination based on an adequate analysis of the alternatives. In addition, the court found the Corps’ determination that the project would not cause or contribute to significant degradation of the waters of the United States to be arbitrary and capricious. The CWA prohibits the Corps from issuing § 404 permits if the proposed discharge of dredged or fill material “will cause or contribute to significant degradation of the waters of the U.S.”6 The Corps found that Newport News’ proposed mitigation plan would adequately compensate for lost wetlands. However, the court asserted that the Corps cannot simply state that it is not required to replicate the destroyed wetlands; instead, it must explain how the mitigation plan will adequately compensate for lost wetland functions and values, which would result in “no net loss” of wetland functions and values. Congruent with the plaintiffs’ argument that the issuance of the permit violates the Corps’ public interest requirement, the court found that the district engineer did not weigh the benefits that reasonably may be expected to accrue from the project against its reasonably foreseeable detriments, considering all relevant factors. Therefore, the court held that the Corps’ decision that issuance of the permit was in the public interest was arbitrary and capricious. However, the court found the Corps’ decision not to supplement the final environmental impact statement (EIS) was not arbitrary and capricious. In order to challenge the Corps’ decision not to issue a supplemental EIS, the plaintiffs had to present information that is both new and would provide a “seriously different picture of the environmental landscape.” But here, the plaintiffs did not point to any new practicable alternative not considered in the final EIS. Although the plaintiffs highlighted new information, such as the unavailability of a mitigation site included in the mitigation plan, which opened the possibility that the mitigation plan would not produce the promised benefits, the court could not conclude that the Corps’ decision not to supplement the final EIS was arbitrary and capricious. The court noted that the mitigation plan contained other contingency sites; therefore, the court found that the Corps did not violate NEPA by failing to supplement the EIS. EPA Veto The court held that by considering factors outside of the scope of its statutory authority when it decided not to veto the permit, the EPA acted arbitrary and capriciously. The court found that the EPA Administrator’s decision not to veto the permit was not based on his determination that the permit was unlikely to have unacceptable adverse effects, but on reasons completely divorced from the Guidelines promulgated by EPA pursuant to § 404(b) of the CWA. Specifically, the Administrator determined that engaging in the required notice and comment proceedings would divert resources; that additional process would be unlikely to add any new information; and that there was a water supply shortfall that needed to be addressed. The court found that the Administrator must base his decision solely on whether the issuance of a permit has unacceptable adverse effects. Conclusion The Corps erred in approving, and EPA erred in failing to veto, a CWA permit authorizing the construction of the project that would flood over 1,500 acres of land and require the excavation, fill, destruction, and flooding of approximately 403 acres of freshwater wetlands and over 100 archaeological sites, the elimination of 21 miles of free-flowing streams, and drawing up to 75 million gallons of water a day from the Mattaponi River. Although the U.S. Department of Justice (DOJ) filed an appeal on behalf of the Corps and EPA in early June 2009, on June 25 the DOJ announced its plans to drop the appeal.7 In effect, according to officials, the project “has no future.”8 Endnotes 1. Court Limits EPA Discretion under CWA when Vetoing Corps Permits, inside epa, May 1, 2009, http://www.aswm.org/news/court_limits_ 050109_inside_epa.pdf . 2. Alliance to Save the Mattaponi v. United States Army Corps of Engineers, 2009 U.S. Dist. LEXIS 57217 at 11. Mar. 31, 2009). 3. Alliance to Save the Mattaponi v. Virginia, 621 S.E.2d 78, 87 (Va. 2005); Stephanie Showalter, Virginia Supreme Court Upholds Issuance of Permits for King William Reservoir, 4:4 The Sandbar 1 (2006). 4. Alliance to Save the Mattaponi,* 2009 U.S. Dist. Lexis 57217 at 11. 5. Id.* at 24. 6. 40 C.F.R. § 230.10(c). 7. Press Release, Southern Environmental Law Center, Federal government drops its appeal of the court ruling overturning the permit, June 26, 2009, available at* http://www.southernenvironment.org/virginia/king_william_reservoir_va/updates/ . 8. Id.
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SandBar 8:3, October, 2009
Recommended citation: Sims, Misty A. , District Court Overturns Agency Decisions on King William Reservoir , 8:3 SandBar 1 (2009).

Alliance to Save the Mattaponi v. United States Army Corps of Eng’rs, 2009 U.S. Dist. LEXIS 57217 (D.D.C. Mar. 31, 2009).

Misty A. Sims, JD, LL.M

Limiting the Environmental Protection Agency’s (EPA) discretion under the Clean Water Act (CWA), the U.S. District Court for the District of Columbia recently held that the EPA is obligated to veto a CWA permit if “adverse effects” are likely to result.1 The ruling relates to the King William Reservoir project in Virginia, a 1,526-acre project that would provide additional water to the region and, according to the EPA, “… would represent the largest single permitted wetland loss in the Mid-Atlantic region in the history of the Clean Water Act Section 404 program.”2

Background
In 1984, the Norfolk District of the U.S. Army Corps of Engineers (Corps) conducted a nine-year study which forecasted that the Lower Peninsula of Virginia would require 40 million gallons per day of additional water by 2030. In response, the City of Newport News submitted an application to the Corps for permits to construct the King William Reservoir, which would be created by building a dam across Cohoke Creek. The project would require the excavation, fill, destruction, and flooding of approximately 403 acres of freshwater wetlands. The Virginia State Water Control Board (Board) issued the City a permit for the proposed project in December 1997.
      A group of organizations led by the Alliance to Save the Mattaponi (Alliance) and the Mattaponi Indian Tribe (Tribe) brought an action against the Board for issuing a building permit for the project, claiming the project would cause extensive environmental damage. The Virginia Supreme Court in Alliance to Save the Mattaponi v. Virginia upheld the issuance of permits for the reservoir in 2005.3
      Also in 2005, the Corps issued its final record of decision (ROD) and issued a CWA permit for the company to place dredged or fill material into wetlands. The Corps found the project was in the public interest and would not cause or contribute to significant degradation of the waters of the United States, given Newport News’ wetland mitigation plan that included the restoration and creation of 806 acres of wetlands. Although the EPA has the authority to veto the Corps’ issuance of a permit, it abstained.
      The Alliance and the Tribe filed suit in the U.S. District Court for the District of Columbia, claiming that the Corps’ approval of the permit and the EPA’s failure to veto it were arbitrary and capricious. The plaintiffs challenged the Corps’ issuance of the permit “on the grounds that the determinations of the Corps that the Project was the least damaging practicable alternative, that it would not cause or contribute to significant degradation of the waters of the United States, and that it was in the public interest were arbitrary and capricious”4

Corps’ Permit
The CWA prohibits the Corps from issuing a permit if there is a less damaging practicable alternative. The plaintiffs argued that the Corps’ issuance of the permit was arbitrary and capricious because it rejected less damaging and otherwise practicable alternatives by relying on an outdated analysis in the final EIS.
      The court found that before determining that a project which would flood 403 acres of functioning wetlands is the least damaging practicable alternative, the Corps must do more than give vague explanations about the potential adverse effects of other alternatives. Given that the CWA “compels that the [least damaging] alternative be considered and selected unless proven impracticable,”5 the court found that the Corps acted arbitrarily and capriciously when it determined that the project was the least damaging practicable alternative based on mere assertions that other alternatives may not meet needs and could be more damaging. The court ordered the Corps to adequately explain why there is no less damaging practicable alternative, or reconsider its determination based on an adequate analysis of the alternatives.
      In addition, the court found the Corps’ determination that the project would not cause or contribute to significant degradation of the waters of the United States to be arbitrary and capricious. The CWA prohibits the Corps from issuing § 404 permits if the proposed discharge of dredged or fill material “will cause or contribute to significant degradation of the waters of the U.S.”6 The Corps found that Newport News’ proposed mitigation plan would adequately compensate for lost wetlands. However, the court asserted that the Corps cannot simply state that it is not required to replicate the destroyed wetlands; instead, it must explain how the mitigation plan will adequately compensate for lost wetland functions and values, which would result in “no net loss” of wetland functions and values.
      Congruent with the plaintiffs’ argument that the issuance of the permit violates the Corps’ public interest requirement, the court found that the district engineer did not weigh the benefits that reasonably may be expected to accrue from the project against its reasonably foreseeable detriments, considering all relevant factors. Therefore, the court held that the Corps’ decision that issuance of the permit was in the public interest was arbitrary and capricious.
      However, the court found the Corps’ decision not to supplement the final environmental impact statement (EIS) was not arbitrary and capricious. In order to challenge the Corps’ decision not to issue a supplemental EIS, the plaintiffs had to present information that is both new and would provide a “seriously different picture of the environmental landscape.” But here, the plaintiffs did not point to any new practicable alternative not considered in the final EIS. Although the plaintiffs highlighted new information, such as the unavailability of a mitigation site included in the mitigation plan, which opened the possibility that the mitigation plan would not produce the promised benefits, the court could not conclude that the Corps’ decision not to supplement the final EIS was arbitrary and capricious. The court noted that the mitigation plan contained other contingency sites; therefore, the court found that the Corps did not violate NEPA by failing to supplement the EIS.

EPA Veto
The court held that by considering factors outside of the scope of its statutory authority when it decided not to veto the permit, the EPA acted arbitrary and capriciously. The court found that the EPA Administrator’s decision not to veto the permit was not based on his determination that the permit was unlikely to have unacceptable adverse effects, but on reasons completely divorced from the Guidelines promulgated by EPA pursuant to § 404(b) of the CWA. Specifically, the Administrator determined that engaging in the required notice and comment proceedings would divert resources; that additional process would be unlikely to add any new information; and that there was a water supply shortfall that needed to be addressed. The court found that the Administrator must base his decision solely on whether the issuance of a permit has unacceptable adverse effects.

Conclusion
The Corps erred in approving, and EPA erred in failing to veto, a CWA permit authorizing the construction of the project that would flood over 1,500 acres of land and require the excavation, fill, destruction, and flooding of approximately 403 acres of freshwater wetlands and over 100 archaeological sites, the elimination of 21 miles of free-flowing streams, and drawing up to 75 million gallons of water a day from the Mattaponi River.
Although the U.S. Department of Justice (DOJ) filed an appeal on behalf of the Corps and EPA in early June 2009, on June 25 the DOJ announced its plans to drop the appeal.7 In effect, according to officials, the project “has no future.”8

Endnotes
1. Court Limits EPA Discretion under CWA when Vetoing Corps Permits, inside epa, May 1, 2009, http://www.aswm.org/news/court_limits_ 050109_inside_epa.pdf .
2. Alliance to Save the Mattaponi v. United States Army Corps of Engineers, 2009 U.S. Dist. LEXIS 57217 at *11. Mar. 31, 2009).
3. Alliance to Save the Mattaponi v. Virginia, 621 S.E.2d 78, 87 (Va. 2005); Stephanie Showalter, Virginia Supreme Court Upholds Issuance of Permits for King William Reservoir, 4:4 The Sandbar 1 (2006).
4. Alliance to Save the Mattaponi, 2009 U.S. Dist. Lexis 57217 at *11.
5. Id. at *24.
6. 40 C.F.R. § 230.10(c).
7. Press Release, Southern Environmental Law Center, Federal government drops its appeal of the court ruling overturning the permit, June 26, 2009, available at http://www.southernenvironment.org/virginia/king_william_reservoir_va/updates/ .
8. Id.