Petition for Writ of Certiorari — Water Works & Sewer Board of Birmingham v. Department of the Army, Corps of Engineers

rome Courf, U.S

L.ED

99 3483 AUG25 1599

No.

a a nn

IN THE

Supreme Court of the United States

THE WATER WORKS AND SEWER BOARD OF THE

CITY OF BIRMINGHAM, an Alabama public corporation,

Petitioner,

VS.

UNITED STATES DEPARTMENT OF THE ARMY, CORPS OF

ENGINEERS; THE CITY OF BESSEMER, ALABAMA; TOGO

D. WEST, JR.; LIEUTENANT GENERAL A.E. WILLIAMS;

AND COLONEL WILLIAM S. VOGEL,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

ne

K. MARK PARNELL

Counsel of Record

Mary H. THOMPSON

GORHAM & WALDREP, P.C.

Attorneys for Petitioner

2101 6" Avenue North

Suite 700

Birmingham, Alabama 35203

(205) 254-3216

154703 q Counsel Press LLC

FORMERLY LUTZ APPELLATE SERVICES

(800) 274-3321 » (800) 359-6859

QUESTIONS PRESENTED

Did the United States Department of the Army Corps of

Engineers improperly narrow the scope of its review of a

permit application under section 404 of the Clean Water Act

and Section 10 of the Rivers and Harbors Act to construct

an intake structure and pipeline on the Black Warrior River

to withdraw up to 25 million gallons of water per day, thereby

failing to consider the extent of the need for such water as

required by the Clean Water Act, the National Environmental

Policy Act, and its own regulations?

Did the United States Department of the Army Corps of

Engineers improperly narrowly define the project purpose

SO as to eliminate reasonable alternatives under the Clean

Water Act, the National Environmental Policy Act, and its

own regulations?

il

PARTIES TO THE PROCEEDING

The Water Works and Sewer Board of the City of

Birmingham, an Alabama public corporation; The United

States Department of the Army, Corps of Engineers; The

City of Bessemer, Alabama, an Alabama municipal

corporation; Togo D. West, Jr, in his official capacity as

Secretary of the Army; Lieutenant General A. E. Williams

in his official capacity as Chief of Engineers; Colonel

William S. Vogel in his official capacity as District Engineer;

and The Governmental Utility Services Corporation of the

City of Bessemer, Alabama, an Alabama public corporation.

lil

TABLE OF CONTENTS

Page

ESA see i

Parties to the Proceeding ..................... il

eer Oe il

Table of Cited Authorities .................... Vv

pe Vii

a ee l

Statement of Jurisdiction ..................... l

Statutory Provisions and Regulations Involved ... 2

Statement of the Case ........................ 2

A. Course of Proceedings and Disposition in the

ica ae 5 VwiGh dw 0s sos ces <e 2

B. Statement of Material Facts.............. 5

Reasons for Granting the Writ ................. 7

I. The Decision By The Court Below Raises

Important Questions Of Federal Law

Regarding Whether The Scope Of The Corps’

Public Interest Review Regulation Is Limited

By The Corps NEPA Implementation

SS 7

iv

Contents

Page

II. The Decision By The Court Below Raises

Important Questions Of Federal Law

Concerning Whether Section 101(g) Of The

Clean Water Act Limits The Corps From

Considering The Extent Of The Need Under

Its Public Interest Review Regulations. .... 10

III. The Decision By The Court Below Raises

Important Questions Of Federal Law

Regarding Whether The Corps May Narrowly

Define A Project’s Purpose To Eliminate

Reasonable Alternatives. ............... 12

Ce ole pana ee aa eae ie 14

V

TABLE OF CITED AUTHORITIES

Page

Cases:

Chevron, U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984) ........... 7

PUD No. | of Jefferson County v. Washington Dept.

of Ecology, 511 U.S. 700 (1994) ............. 11

Save the Bay, Inc. v. United States Corps of Eng'rs,

GIO F268 Dae CO” Cm. 90RD oon ccc cccevnnvecs 8

Simmons v. United States Army Corps of Engineers,

120 8.30 G4 (7° Cir, 1997) .. oc ncccveccccce 13

Sylvester v. United States Army Corps of Eng 'rs, 884

Pode FPO OO" CW. BSGF) nev cwnnnvcsecvesevs 8

Sylvester v. United States Army Corps of Eng 'rs, 882

ee hk A) 8, 13

Van Abbema v. Fornell, 807 F.2d 633 (7™ Cir.

CE Ses capes cena ceureed aca 13

Winnebago Tribe v. Ray, 621 F.2d 269 (8" Cir.

FOE cv Gus raul aneeeeheen es eae Teer 8

vi

Cited Authorities

Page

Statutes:

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ear as LED vv be need bh eek l

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es RROD. 4556 5s pane veeeveneaces 2, 10, 11

OS 8 ol 2h | Serre rere eee ie i, 2, 5,9

ae ala OF BUTEA 6k cx ew kk cesses dhewess 2, 10, 11

Oe ors PMR) Riko.5k chen erheesuneenens 2,9

Alabama Code §§ 11-50-230 through 241 (1975) . 5

Other Authorities:

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DPS ae B SOE 6 vv eve Udine seeeeveseen 9

Ce gst BR? Cy: rege Amano 9,10, 11

(gee ee Bs . Se re rrr 2,9

Matthew C. Porterfield, Rippling Puddles, Small

Handles and Links of Chain: The Scope of

Environmental Review for Army Corps of

Engineers Permit Decisions, 10 Tul. Envtl. L.J.

Be COPE WHUED 0.44.64 0000<becceteuaeuseees 9

ee ee eee ern ey

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TABLE OF APPENDICES

Appendix A — Opinion Of The United States Court

Of Appeals For The Eleventh Circuit Dated And

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Appendix B — Memorandum Opinion Of The

United States District Court For The Northern

District Of Alabama, Southern Division Dated

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Appendix C — Opinion Of The United States Court

Of Appeals For The Eleventh Circuit Denying

Petition For Rehearing Dated, Entered And Filed

Wt i PU on cebawenas seis teueeeee weal:

Appendix D — Relevant Statutes And Regulations

ese eeeecoeuvu oe eceeeee eo eweeeweee eases ea Ce Be eee eee 6 e

Appendix E — Excerpts From Brief Of Defendant-

Appellee, The City Of Bessemer, Alabama ....

Appendix F — Excerpts From Brief Of Defendant-

Appellee, United States Department Of Army,

Comps OF Baeimeers .. 2... ccc ccc ccessccccees

Appendix G — Statement Of Findings Of The City

Of Bessemer, Application Number AL95-02252-U

Bre enn

98a

l

Petitioner, The Water Works and Sewer Board of the City

of Birmingham, an Alabama public corporation, respectfully

requests this Court to issue a writ of certiorari to review the

judgment of the United States Court of Appeals for the Eleventh

Circuit in this case.

OPINIONS BELOW

lhe decision, without opinion, of the United States Court

of Appeals for the Eleventh Circuit is reported at The Water

Works and Sewer Board of the City of Birmingham vy. United

States Department of Army, Corps of Engineers, 162 F.3d 98

(11" Cir. 1998). The unpublished decision of the United States

Court of Appeals for the Eleventh Circuit on rehearing is The

Water Works and Sewer Board of the City of Birmingham v.

United States Department of Army, Corps of Engineers, No.

97-6882, (11" Cir. May 28, 1999). The opinion of the United

States District Court for the Northern District of Alabama is

reported at The Water Works and Sewer Board of the City of

Birmingham v. United States Department of Army, Corps of

Engineers, 983 F. Supp. 1052 (N.D. Ala. 1997). These

proceedings arise from a final agency action by United States

Department of Army Corps of Engineers dated March 17, 1997,

These decisions and opinion are reproduced in the Appendix at

pages la, 2a-80a and 81a-82a and the final agency action is

reproduced in the Lodging Appendix.

STATEMENT OF JURISDICTION

The judgment of the United States Court of Appeals for

the Eleventh Circuit was entered on October 13, 1998. The Court

of Appeals denied the timely petition for rehearing on May 28,

1999.

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

2

STATUTORY PROVISIONS AND

REGULATIONS INVOLVED

The statutes involved are: Section 10 of The Rivers and

Harbors Act, 33 U.S.C. § 403; Section 404 of the Clean Water

Act, 33 U.S.C. § 1344; Section 101(g) of the Clean Water

Act, 33 U.S.C. § 1251(g); Section 510(2) of the Clean Water

Act, 33 U.S.C. § 1370(a)(2); and the National Environmental

Policy Act (“NEPA”), 42 U.S.C. § 4332(2)(E).

The regulations involved are 33 C.F.R. § 320.4; and

33 C.F.R. Part 325, App. B.

Each is set forth in pertinent part, in the Appendix at

83a-97a.

STATEMENT OF THE CASE

A. Course of Proceedings and Disposition in the Courts

Below.

Petitioner, The Water Works and Sewer Board of the

City of Birmingham (the “Water Works”), filed its Complaint

against the United States Department of Army Corps of

Engineers, Togo D. West, Jr., in his official capacity as

Secretary of the Army, Lieutenant-General A. E. Williams,

in his official capacity as Chief of Engineers, Colonel

William S. Vogel, in his official capacity as District Engineer

(collectively, the “Corps”), and the City of Bessemer,

Alabama (“Bessemer”), on November 16, 1995, in the United

States District Court for the Northern District of Alabama,

Southern Division (“District Court”). The Compliant sought

judicial review of a final agency action pursuant to 5 U.S.C.

§§ 701-06, and alleged that the defendants violated the Clean

Water Act, the National Environmental Policy Act, and its

Ni i iia,

3

own regulations in issuing Bessemer a permit to construct

an intake structure and pipeline in the Black Warrior River.

Subsequently, the Water Works amended its Complaint to

add the Governmental Utility Services Corporation of the

City of Bessemer, Alabama, as a defendant.

Bessemer filed its Answer on D .cember 8, 1995, and

filed its Amended Answer on December 21, 1995. The Corps

filed its Answer on January 16, 1996. On December 22, 1995,

Bessemer filed its Motion for Summary Judgment and on

January 22, 1996, the Corps filed its Motion for Summary

Judgment. On January 31, 1996, the Water Works filed its

Opposition to Bessemer’s Motion for Summary Judgment,

Motion for Limited Discovery and Hearing or, in the

Alternative, Cross Motion for Summary Judgment and filed

its Opposition to the Corps’ Motion for Summary Judgment,

Motion for Limited Discovery and Hearing or, in the

Alternative, Cross Motion for Summary Judgment on

February 12, 1996. On February 29, 1996, the parties jointly

moved for a stay in the District Court’s proceedings so that

the Corps could conduct additional studies of the

environmental impacts of the intake structure and pipeline.

The proceedings were stayed on March 4, 1996.

On March 17, 1997, the Corps issued its Revised

Statement of Findings concerning Bessemer’s permit.

See Lodging Appendix. On June 30, 1997, the Water Works

filed its Second Amended Complaint challenging the revised

findings and the permit issuance. Bessemer filed its Answer

to the Second Amended Complaint on July 17, 1997, and

the Corps filed its Answer on July 18, 1997. On July 30,

1997, Bessemer and the Corps filed their second Motions

for Summary Judgment. On August 29, 1997, the Water

Works filed its Opposition to the Corps’ and Bessemer’s

4

Motions for Summary Judgment, Motion for Limited

Discovery and Hearing or in the Alternative Cross Motion

for Summary Judgment. On October 22, 1997, the District

Court entered its Order and Memorandum Cpinion granting

both Bessemer’s and the Corps’ Motions for Summary

Judgment and denying the Water Works’ Motion for Limited

Discovery and Hearing or in the Alternative Cross Motion

for Summary Judgment. On October 31, 1997, the Water

Works filed its Notice of Appeal to the United States Court

of Appeals for the Eleventh Circuit (the “Court of Appeals”).

Subsequently, Bessemer filed its Motion to Amend

Judgment and Motion for Preliminary Injunction Pending

Appeal on November 4, 1997, in the District Court. On

November 12, 1997, Bessemer filed its Notice of Withdrawal

of Motion seeking to withdraw its Motion to Amend

Judgment and Motion for Preliminary Injunction Pending

Appeal and the District Court granted said Motion on

November 14, 1997. The Water Works filed its Re-Notice

of Appeal with the Court of Appeals on December 3, 1997.

On October 13, 1998, the Court of Appeals affirmed, without

opinion, the ruling by the District Court. On November 25,

1998, the Water Works filed a Petition for Rehearing with

the Court of Appeals which was denied on May 28, 1999.

This petition for a writ of certiorari followed. Because the

Court of Appeals did not issue a written opinion in this case,

all references to the holdings and rulings relate to the written

opinion issued by the District Court and affirmed by the

Court of Appeals.

3

4

5

B. Statement of Material Facts.

The Water Works is an Alabama public corporation

organized and existing pursuant to Alabama Code §§ 11-

50-230 through 241 (1975) for the purpose of supplying water

to the Birmingham metropolitan area. The Water Works has

four separate sources for withdrawals of water: the Cahaba

River, the Mulbery Fork of the Black Warrior River, the

Sipsey Fork of the Black Warrior River, and Inland Lake.

The Water Works is permitted to withdraw from the

combination of its Mulberry and Sipsey Fork sources on the

Black Warrior River, up to 155 million gallons per day

(“mgd”) of water. Thus, the Black Warrior River

(the “River”) is a major source of water supply for the Water

Works.

Since 1951, the Water Works has supplied Bessemer

with wholesale potable water for its system pursuant to a

water purchase contract. Bessemer then resells the water to

its own customers. Currently, the Water Works provides

Bessemer with approximately 10 to 13 mgd of potable water.

On June 2, 1995, Bessemer submitted an application for a

Corps of Engineers permit pursuant to section 10 of the

Rivers and Harbors Act (33 U.S.C. § 403) and section 404

of the Clean Water Act (33 U.S.C. § 1344) to construct a

water intake structure on the River, along with a thirty-inch

diameter transmission pipeline to connect to a proposed water

treatment plant for withdrawal of up to 25 mgd of water.

The Corps issued a public notice requesting comments

from interested persons regarding Bessemer’s permit

application. On August 11, 1995, the Water Works filed

written comments in response to the public notice and

requested a public hearing. In its comments, the Water Works

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6

raised questions concerning the need for the project and the

availability of alternatives to the project. The Water Works

pointed out that the River is over stressed due to the many

current uses of its waters. The Water Works also pointed

out that it has the ability to supply Bessemer with an

additional 15 mgd of water and has the capability of

providing another 15 mgd of water in a short period of time,

thereby meeting all of Bessemer’s water supply needs.

Further, because the Water Works can supply Bessemer from

its four separate sources of supply, it can conserve water in

the Black Warrior River, while withdrawing water from one

or more of its other sources. Under its proposed project,

Bessemer would have only one source, the Black Warrior

River, and all of its demand would be withdrawn from the

River.

On October 30, 1995, the Corps denied the Water Works’

request for a public hearing, and on November 13, 1995, the

Corps issued the permit to Bessemer. The Water Works

argued in the District Court and the Court of Appeals that

the Corps failed to consider numerous important factors and

criteria in issuing Bessemer’s permit. These factors included

the public need for Bessemer’s project, the evaluation of the

impacts of the intended use of the project, and the availability

of alternatives to the project. Because the River is a major

source of water supply for the Water Works, the Water

Works’ concerns in this case center around the impacts that

Bessemer’s proposed project will have upon the River. The

River is also an important natural resource for many uses

other than water supply, including navigation and electric

power supply. Thus, any decision to allow additional

withdrawals should be carefully evaluated to determine the

actual need for the water as well as any available alternatives

to the additional withdrawal.

7

REASONS FOR GRANTING THE WRIT

I.

THE DECISION BY THE COURT BELOW RAISES

IMPORTANT QUESTIONS OF FEDERAL LAW

REGARDING WHETHER THE SCOPE OF THE

CORPS’ PUBLIC INTEREST REVIEW REGULATION

IS LIMITED BY THE CORPS NEPA

IMPLEMENTATION PROCEDURES.

The District Court found, and the Court of Appeals

affirmed, that “the scope of the overall project review that

the Corps is to undertake is governed by the National

Environmental Policy Act (“NEPA”) implementation

procedures for the regulatory program that are contained at

33 C.F.R. Pt. 325 App. B § 7.b.” (the “Appendix B

regulations”) Water Works, 983 F. Supp. at 1067. The District

Court also found that “the extent of the entire project

reviewable by the Corps under its public interest review is

essentially the same as the extent of review permitted under

the NEPA analysis.” /d. This decision is based upon an

impermissible construction of both the public interest review

regulations and the Appendix B regulations. See Chevron,

U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467

U.S. 837, 843 (1984). Further, the decision is contrary to

the purposes of the public interest review regulations which

provide for a broad review and consideration of a wide range

of factors. See generally 33 C.F.R. § 320.4.

In reaching its decision, the District Court relied upon

several decisions which determined the scope of the Corps’

review under NEPA for projects containing both federal and

non-federal activities. Water Works, 983 F. Supp. at 1068-

8

69. These cases held that the scope of the Corps’ review

under NEPA was limited to the “federally controlled or

regulated aspects of such projects.” See Sylvester v. United

States Army Corps of Eng’rs, 884 F.2d 394, 398 (9" Cir.

1989) (“Sylvester I’); Winnebago Tribe v. Ray, 621 F.2d 269,

273 (8" Cir. 1980); Save the Bay, Inc. v. United States Corps

of Eng’rs, 610 F.2d 322, 327 (5™ Cir. 1980). In Sylvester J,

the Ninth Circuit held that the Appendix B regulations limited

the scope of the Corps’ NEPA review to the federally

controlled aspects of a project. Sylvester I, 884 F.2d at 398-

99. However, all of these cases concerned the issue of the

scope of the Corps’ review under NEPA, not its public

interest review. In fact, the Ninth Circuit pointed out that

the Corps’ public interest review encompasses more factors

than its NEPA review. Sylvester v. U's:eed States Army Corps

of Eng’rs, (“Sylvester IT’) 882 F.2c %°°, 410, n.4 (9™ Cir.

1989). The Ninth Circuit stated:

[t]he Corps regulations require it to consider a broad

range of interests that are not included under the

‘reasonable alternatives’ analysis under the

NEPA. ... Further, under the [Clean Water Act],

the Corps is not limited by regulation similar to 33

C.F.R., Pt. 325, App. B., § 7. As a consequence, the

Corps could properly consider a wider range of facts

in conducting its Public Interest Analysis than the

reasonable alternatives analysis.

Id.

The District Court based its holding on the determination

that “the language of the regulation defining the focus of the

public interest review limits that focus to the effects of the

‘proposed activity.’ Water Works, 983 F. Supp. at 1067.

9

However, the public interest review requires an evaluation

of not only the impacts of the “proposed activity,” but also

an evaluation of the impacts of “the proposed activity and

its intended use on the public interest.” 33 C.F.R.

§ 320.4(a)(1) (emphasis added). The Corps’ Appendix B

regulations were implemented to set out the parameters of

the Corps’ review under NEPA for proposed activities that

are components of larger projects. See 33 C.F.R., Part 325,

App. B., § 7(b). NEPA requires the Corps to “study, develop,

and describe” alternatives to proposed projects. See 42 U.S.C.

§ 4332(2)(E). The public interest review also requires the

Corps to evaluate alternatives to the proposed project but

further requires the Corps to evaluate the impacts of the

“proposed activity and its intended use,” and the “relative

extent of the public and private need for the proposed

structure or work.” 33 C.F.R. § 320.4(a)(1),(2). Accordingly,

the public interest review regulations require the Corps to

consider factors beyond NEPA’s requirements. See generally

Matthew C. Porterfield, Rippling Puddles, Small Handles

and Links of Chain: The Scope of Environmental Review for

Army Corps of Engineers Permit Decisions, 10 Tul. Envtl.

L.J. 31 (Winter 1996). Thus, the two reviews are parallel

and separate.

The District Court’s decision as affirmed by the Court

of Appeals, serves to narrow the scope of the Corps’ public

interest review for projects requiring permits under Section

404 of the Clean Water Act, and Section 10 of the Rivers

and Harbors Act by applying the Corps’ NEPA Appendix B

regulations to the public interest review. Because this

decision raises important questions of federal law regarding

whether the Appendix B regulations for NEPA apply to the

public interest review, the Court should grant this petition

to resolve this issue.

10

THE DECISION BY THE COURT BELOW RAISES

IMPORTANT QUESTIONS OF FEDERAL LAW

CONCERNING WHETHER SECTION 101(g) OF THE

CLEAN WATER ACT LIMITS THE CORPS FROM

CONSIDERING THE EXTENT OF THE NEED UNDER

ITS PUBLIC INTEREST REVIEW REGULATIONS.

The District Court held, and the Court of Appeals

affirmed, that the Corps was not required to evaluate the

extent of the need for the water withdrawals in this case

because such an evaluation amounts to an allocation of water

prohibited by Section 101(g) of the Clean Water Act. Water

Works, 983 F. Supp. at 1076. The District Court stated “the

only activity to be considered 1n this case is the construction

of the intake structure and the associated pipeline

crossings... .” /d. This holding conflicts with the public

interest review regulations which require the Corps to

evaluate “the relative extent of the public and private need

for the proposed structure or work.” 33 C.F.R. § 320.4(a)(2).

On appeal to the Court of Appeals, the Corps and

Bessemer argued that pursuant to sections 101(g) and 510(2),

the Corps’ role under the Clean Water Act “is limited to

addressing water quality.” App. at 99a-109a. Thus, the Corps

argued that its needs analysis was limited to the need to

construct the intake structure and pipeline along with

associated water quality concerns, and it could not consider

whether there was a need for the additional water withdrawals

from the River, because this amounted to an “allocation” of

water. App. at 103a-109a.

‘ii

1]

This Court has previously held that the Clean Water Act

does not make a “sharp distinction” between water quantity

and water quality. PUD No. | of Jefferson County v.

Washington Dept. of Ecology, 511 U.S. 700, 719 (1994).

This Court recognized that issues of water quantity are

closely related to issues of water quality, and the continued

lowering of the amount of water in a river could eliminate

its uses for drinking water, navigation or other uses.

PUD No. 1, 511 U.S. at 719. Further, this Court stated that

the limitations on allocations of water set out in sections

101(g) and 510(2) of the Clean Water Act should be read

narrowly. /d. at 720. The public interest review regulations

clearly require the Corps to evaluate the extent of the

need for proposed projects. 33 C.F.R. § 320.4(a)(2).

Any meaningful evaluation of a project cannot merely rest

upon whether there is a need to construct a structure as if it

will not function after the construction is complete, but must

further evaluate the extent of the need for the intended use

of the structure. In the present case, the intake structure was

constructed to withdraw water from the River; thus, the

Corps’ needs analysis should have considered whether there

was a need for the additional withdrawals from the River.

Under this Court’s narrow reading of sections 101(g) and

510(2), an evaluation of the need for the withdrawals should

not amount to an “allocation” of water.

The opinion below interprets sections 101(g) and 510(2)

of the Clean Water Act to prohibit the Corps from evaluating

the extent of the need for which projects will be used. Based

on this ruling, an infinite number of intake structures could

be constructed on a water course without regard for whether

there was an actual need for the water withdrawals, thereby

depleting a precious resource. This Court should grant this

petition to resolve this important issue.

12

THE DECISION BY THE COURT BELOW RAISES

IMPORTANT QUESTIONS OF FEDERAL LAW

REGARDING WHETHER THE CORPS MAY

NARROWLY DEFINE A PROJECT’S PURPOSE TO

ELIMINATE REASONABLE ALTERNATIVES.

The District Court held, and the Court of Appeals

affirmed, that the Corps had properly defined the project

purpose and had properly examined all reasonable

alternatives to the project in light of the purpose. The District

Court found that the alternative of purchasing water from

the Water Works did not conform to the project purpose and

thus was not an available alternative. Water Works, 983

F. Supp. at 1083. The District Court also found that the Corps

had not impermissibly narrowed the project purpose so as to

eliminate the alternative of continued purchase of water from

the Water Works. /d.

Bessemer’s permit application stated its project purpose

was “future public water supply for the City of Bessemer.”

In its initial environmental assessment, the Corps restated

Bessemer’s purpose as “to provide the City of Bessemer with

a supply source for their [sic] municipal water system.” The

Corps found that Bessemer’s “basic project purpose” was

simply “public water supply.” However, in its revised

environmental assessment, the Corps redefined Bessemer’s

project purpose as “to provide the City of Bessemer with an

independent water system.” It is only under this final, narrow

project definition that continued purchase of water from the

Water Works was not a reasonable alternative.

13

In Sylvester v. United States Army Corps of Engineers,

882 F.2d 407, 409 (9" Cir. 1989), the court held that “an

applicant cannot define a project in order to preclude the

existence of any alternative sites and thus make what is

practicable appear impracticable.” Likewise, in Simmons vy.

United States Army Corps of Engineers, 120 F.3d 664, 666

(7" Cir. 1997), the court held that the Corps cannot “contrive

a purpose so slender as to define competing reasonable

alternatives out of consideration (and even out of existence).”

The court explained that the consideration of alternatives is

one of the most important evaluations an agency performs,

and the beginning point must be defining the project’s

purpose. Simmons, 120 F.3d at 666. The court noted

“the broader the purpose, the wider the range of alternatives;

and vice versa.” /d. The court stated further that if an agency

narrows the definition of the project purpose to exclude

reasonable alternatives, then the agency fails to satisfy its

Statutory mandates. Jd. The court held that the alternatives

analysis which the Corps should have performed was

“an evaluation of alternative means to accomplish the general

goal of an action.” /d. at 669 (citing Van Abbema v. Fornell,

807 F.2d 633, 638 (7" Cir. 1986)). The Corps should not

confine its analysis to merely the “alternative means by which

a particular applicant can reach his goals.” /d. (citing Van

Abbema, 807 F.2d at 638).

The Court of Appeal’s ruling in affirming the opinion

of the District Court allows the Corps to define and redefine

a project’s purpose until it is so narrow that it eliminates

any undesirable alternatives. Neither the applicant nor the

Corps should be allowed to redefine a project’s purpose to

eliminate reasonable alternatives and circumscribe statutory

and regulatory mandates. Thus, this Court should resolve

this important issue.

id

CONCLUSION

For the foregoing reasons, the Court should issue a writ

of certiorari to review the judgment of the United States Court

of Appeals for the Eleventh Circuit, reverse the judgment

and remand the case with directions to enter an order to

require the Corps withdraw the permit issued to Bessemer

and enjoin the construction, until such time as the Corps has

completed the appropriate analysis as required by the Clean

Water Act, the Rivers and Harbors Act, and the National

Environmental Policy Act.

Respectfully submitted,

K. MARK PARNELL

Counsel of Record

Mary H. THOMPSON

GORHAM & WALDREP, P.C.

Attorneys for Petitioner

2101 6" Avenue North

Suite 700

Birmingham, Alabama 35203

(205) 254-3216