# Appendix — Water Works & Sewer Board of Birmingham v. Department of the Army, Corps of Engineers

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1999
- **Citation:** 528 U.S. 951

## Text

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APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENT H CIRCUIT
DATED AND FILED OCTOBER 13, 1998

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

No. 97-6882
D.C. Docket No. CV95-PT-2956-S

WATER WORKS & SEWER BOARD OF THE CITY OF
BIRMINGHAM, an Alabama public corporation,

Plaintiff-Appellant,

versus

UNITED STATES ARMY CORPS OF ENGINEERS, THE,
a federal agency; CITY OF BESSEMER, ALABAMA, THE,
a municipal corporation, et al.,

Defendants-Appellees.

Appeal from the United States District Court for the
Northern District of Alabama

(October 13, 1998)

Before HATCHETT, Chief Judge, BIRCH, Circuit Judge,
and KEITH*, Senior Circuit Judge.

—_—

* Honorable Damon J. Keith, Senior U.S. Circuit Judge for
the Sixth Circuit, sitting by designation.

2a
Appendix A
PER CURIAM: AFFIRMED. See 11th Cir. R. 36-1.'
“Costs taxed against plaintiff-appellant.”

Entered: October 13, 1998
For the Court: Thomas K. Kahn, Clerk

By: s/ Matt Davidson
Deputy Clerk

ISSUED AS MANDATE: JUNE 10 1999

1. 11th Cir. R. 36-1 provides:

When the court determines that any of the following
circumstances exist:

(a) the judgment of the district court is based
on findings of fact that are not clearly
erroneous;

(b) the evidence in support of a jury verdict
is sufficient;

(c) the order of an administrative agency is
supported by substantial evidence on the
record as a whole;

(d) a summary judgment, directed verdict,
or judgment on the pleadings is
supported by the record;

(e) the judgment has been entered without a
reversible error of law;

and an opinion would have no precedential value, the

judgment or order may be affirmed or enforced without
opinion.

lammntemeimmeisameseisintiiataiitiaii ital

3a

APPENDIX B — MEMORANDUM OPINION OF THE

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ALABAMA, SOUTHERN
DIVISION DATED OCTOBER 22, 1997

THE WATER WORKS & SEWER BOARD OF
THE CITY OF BIRMINGHAM, Plaintiff,
v.
UNITED STATES DEPARTMENT OF ARMY,
CORPS OF ENGINEERS, et al., Defendants.

No. CV 95-PT-2956-S.

United States District Court,
N.D. Alabama,

Southern Division.

Oct. 22, 1997.

s * *

Memorandum Opinion
PROPST, Senior District Judge.

This cause comes on to be heard on a motion for
summary judgment filed by defendant City of Bessemer
(“Bessemer”) on July 30, 1997; a motion for summary
judgment filed by defendants United States Army Corps of
Engineers, Togo D. West, Jr., Lt. Gen. A. E. Williams, and
Col. William S. Vogel (collectively, “Corps”) on July 30,
1997; and a motion to allow limited discovery and a hearing,
and cross motion for summary judgment filed by the plaintiff
Water Works & Sewer Board of the City of Birmingham
(“Water Works”) on August 29, 1997. The issues raised by

4a
Appendix B

Bessemer and the Corps in their separate motions are
substantially the same. The parties’ dispute concerns the
validity of a Department of the Army Permit for work in
“waters of the United States” issued by the Corps on March
17, 1997. The plaintiff contends that the permit was
improperly issued (1) because the Corps failed to have a
requested hearing on the validity of the permit in violation
of the Corps’ regulations, the statutes governing the Corps’
permitting process and the Due Process Clause of the Fifth
Amendment; (2) because the Corps failed to adequately
consider the substantial adverse effects of the permitted
activity on the public interest; (3) because the Corps
erroneously failed to require preparation of an environmental
impact statement in violation of the National Environmental
Policy Act, 42 U.S.C. § 4321, et seq.; and (4) because the
permitted activity of Bessemer will not comply with the
Environmental Protection Agency’s Guidelines for
Specification of Disposal Sites for Dredged or Fill Material,
40 C.F.R. § 230.1, et seq. The defendants contend that the
Corps properly permitted a prospective intake structure and
pipeline intended to provide water for an independent water
treatment and distribution system in Bessemer and that its
decision is properly supported by the administrative record.
The plaintiff asserts that it should be granted an opportunity
for discovery outside of the administrative record and that it
should be granted a hearing on the basis of the discovery
results.

Facts
The Water Works & Sewer Board of the City of

Birmingham (“Water Works”), originally the Birmingham
Waterworks Company, is an Alabama public corporation that

5a
Appendix B

was initially “chartered for public service by legislative act
approved February 13, 1885. Sess. Acts 1884-85, p. 415.”
Birmingham Waterworks Co. v. City of Birmingham, 58 So.
204, 204, 176 Ala. 301, 301 (Ala.1912); State ex rel.
Weatherly v. Birmingham Waterworks Co., 64 So. 23, 26-
27, 185 Ala. 388 (1913). The purpose of the Water Works,
as first stated, was to “greatly promote the health and comfort
of the citizens of Birmingham, in Jefferson county, Alabama,
and its suburbs, to have an ample supply of good and pure
water....” Birmingham Waterworks Co. v. City of
Birmingham, 58 So. at 204. The Water Works describes itself
as being “the largest water utility in the State of Alabama,
serving approximately 25 million gallons per day of raw
water to industrial customers, and approximately 108
[million gallons per day] of potable water to approximately
one million people... .” Plaintiff's Brief in Response to
Bessemer’s Motion for Summary Judgment at 2-3; also,
Administrative Record at 209. The Water Works has four
sources of water: the Cahaba River, the Mulberry Fork of
the Black Warrior River, the Sipsey Fork of the Black
Warrior River and Inland Lake.

The City of Bessemer has, for forty-six years, purchased
water from the Water Works to sell to its residents. At
present, ten to thirteen million gallons of water per day are
purchased by Bessemer from the Water Works for residential,
agricultural and industrial purposes. Bessemer has, however,
grown weary of its reliance on the Water Works and seeks
to develop its own water supply, treatment and distribution
system.’ To develop the independent water system, Bessemer

1. The decision to cancel the contract with the Water Works
and build an independent water system was made after the Water
Works threatened Bessemer with a five percent rate hike.

6a

Appendix B

would build an intake structure on the Black Warrior River
at Taylor’s Ferry, downstream from Bankhead Lake; a water
treatment plant at which the withdrawn water would be made
potable; and an associated thirty-inch diameter pipe that
would connect the intake structure to the treatment plant and
the treatment plant to the water distribution system of
Bessemer. At full operating capacity, the intake system
would be capable of removing twenty-five million gallons
of water per day from the Black Warrior River.” From the
treatment plant, the water would be channeled through pre-
existing pipes to end-line customers.

On June 2, 1995, Bessemer submitted an application for
a Corps of Engineers’ permit pursuant to section 10 of the
Rivers and Harbors Appropriation Act of 1899 (33 U.S.C.
§ 403) and section 404 of the Clean Water Act (33 U.S.C.
§ 1344) to construct the water intake structure on the Black
Warrior River and associated pipeline crossings. On June
28, 1995, the Army Corps of Engineers (“Corps’’) issued
public notice of the permit application and provided a thirty
day period ending on July 28, 1995, within which comments

2. It should not be inferred from this that twenty five million
gallons per day would be drawn from the Black Warrior River
through the intake structure. Although the court does not intend to
supplement to the record, it notes that use may, in fact, go down.
Evidence submitted by the Water Works and addressed by the Corps
indicates that initially at least, the cost to Bessemer of producing
water than it would be greater if the water was purchased from
Birmingham and resold. Although the market for water use is
relatively inelastic, the higher price needed to cover costs of
production (even if Bessemer chooses not to set price to maximize
profits) might reduce the amount of gallons consumed.

7a

Appendix B

on the proposed project were to be submitted. The Corps
received comments from various state, local and federal
agencies, in addition to private individuals. On July 28, 1995,
the Corps extended the comment period in response to a
request for an extension of time and for a public hearing by
the Water Works. On August 11, 1995, the Water Works
submitted “extensive” comments setting forth its objections
to the permit and reiterated its request for a hearing.

On October 30, 1995, the Corps formally denied the
Water Works’ request for a public hearing, stating that “a
public hearing would not provide any additional information
which would assist in making a final decision in this request
for a permit.” Administrative Record (“A.R.”’) at 308. On
the next day, the Corps issued a Statement of Findings, which
included an environmental assessment and an evaluation of
compliance with the EPA’s Clean Water Act Guidelines and
which addressed the comments received, including,
allegedly, those of the Water Works. On November 13, 1995,
the Corps issued a permit to Bessemer authorizing
construction of the water intake structure and associated
pipeline. Three days later, the Water Works filed suit in this
court seeking review of the Corps’ action.

Around March 1, 1996, the Corps suspended its permit
to consider in more depth the impacts associated with the
intake structure and the pipeline route proposed by Bessemer.
At the same time, the parties moved jointly to stay the case
while such consideration was taking place. On March 4,
1996, the court granted the stay. According to the Corps,
while the stay was in effect, it considered issues raised by
the Water Works, as contained in the affidavits of Bruce

8a
Appendix B

Schwenneker and Gene Hanson that were submitted to the
court in February 1996.

A year after the stay went into effect, on March 17, 1997,
the Corps issued a revised Statement of Findings on the
permit application, accompanied by an environmental
assessment and an evaluation of compliance with the EPA’s
Clean Water Act Guidelines. On the same day, it reissued
Bessemer’s permit. The issues raised in the various motions
are now before the court.

Contentions & Analysis

The court assumes, without deciding, that the Water
Works has standing to raise its various complaints. It may
have standing as to some and not as to others.

I. THE BENEFIT OF A HEARING.

The plaintiff's first contention is that it was denied a
hearing in violation of (1) the regulations issued by the Corps
governing the circumstances under which a hearing is to be
granted; (2) the Administrative Procedure Act and the
relevant sections of the statutes under which the Corps’
authority to regulate is described; and (3) Fifth Amendment
due process, even if the Corps in fact complied with the
regulations and statutes. The defendants dispute all of these
arguments.

A. Compliance with the Regulations.

The Corps’ regulations elucidating the criteria for the
grant of a public hearing, 33 C.F.R. § 327.4, state:

9a
Appendix B

(a) A public hearing will be held in connection
with the consideration of a DA [Department of
the Army] permit application or a Federal project
whenever a public hearing is needed for making
a decision on such permit application or Federal
project. In addition, a public hearing may be held
when it is proposed to modify or revoke a permit.
(See 33 CFR 325.7).

(b) Unless the public notice specifies that a public
hearing will be held, any person may request, in
writing, within the comment period specified in
the public notice on a DA permit application or
on a Federal project, that a public hearing be held
to consider the material matters at issue in the
permit application or with respect to Federal
project. Upon receipt of any such request, stating
with particularity the reasons for holding a public
hearing, the district engineer may expeditiously
attempt to resolve the issues informally.
Otherwise, he shall promptly set a time and place
for the public hearing, and give due notice thereof,
as prescribed in § 327.11 of this Part. Requests
for a public hearing under this paragraph shall be
granted, unless the district engineer determines
that the issues raised are insubstantial or there is
otherwise no valid interest to be served by a
hearing. The district engineer will make such a
determination in writing, and communicate his
reasons therefor to all requesting parties.
Comments received as form letters or petitions
may be acknowledged as a group to the person or

10a

Appendix B

organization responsible for the form letter or
petition.

(c) In case of doubt, a public hearing shall be
held. ...

(d) In fixing the time and place for a hearing, the
convenience and necessity of the interested public
will be duly considered.

The Eleventh Circuit has interpreted the Corps’ regulations
to mean that the grant of a public hearing by the Corps is
discretionary.

The applicable regulations provide the Corps
discretion to hold hearings on permit applications
on an “as needed” basis. 33 C.F.R. § 327.4. If the
Corps determines that it has the information
necessary to reach a decision and that there is “no
valid interest to be served by a hearing,” the Corps
has the discretion not to hold one. Id. § 327.4(b).

Fund for Animals v. Rice, 85 F.3d 535, 545 (1 1th Cir.1996).
In reviewing whether an agency’s decision to decline public
hearing request comports with the agency’s regulations, an
arbitrary and capricious standard is to be employed by the
court. Id.

In considering [whether an agency’s action is
arbitrary and capricious] the Court may not
substitute its judgment for that of the agency and
can set aside an agency’s decision only if the

lla
Appendix B

agency relied on improper factors, failed to
consider important relevant factors, or committed
a clear error of judgment that lacks a “rational
connection between the facts found and the choice
made.” Motor Vehicle Mfrs. Ass’n, Inc. v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103
S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983) (internal
quotations and citations omitted); Preserve
Endangered Areas of Cobb’s History, Inc. v.
United States Army Corps of Engineers, 87
F.3d 1242, 1246 (11th Cir.1996); Florida
Manufactured Hous. Ass’n, Inc. v. Cisneros, 53
F.3d 1565, 1572 (11th Cir.1 995).

While we must conduct a “searching and careful”
inquiry to assess whether the decision bears the
requisite connection to the relevant facts, our
ultimate standard of review is narrow and
deferential to the agency’s conclusions. Citizens
to Preserve Overton Park, Inc. v. Volpe, 401 U.S.
402, 416, 91 S.Ct. 814, 823-24, 28 L.Ed.2d 136
(1971). Agency action must be presumed valid
and rejected only for “ ‘substantial procedural or
substantive reasons ... not simply because the
court is unhappy with the result reached.’ ”
Manasota-88, Inc. v. Thomas, 799 F.2d 687, 691
(11th Cir.1986) (quoting Vermont Yankee
Nuclear Power Corp. v. Natural Resources
Defense Council, Inc., 435 U.S. 519, 558, 98 S.Ct.
1197, 1219, 55 L.Ed.2d 460 (1978)).

Arango v. United States Department of the Treasury, 115

F.3d 922, 928 (11th Cir.1997).

12a
Appendix B

The Water Works argues that it properly requested in
writing a public hearing within the time period prescribed
by the regulation and that it clearly elucidated its reasons
for requesting the hearing. In its letter to the Corps, the Water
Works detailed concerns related to public needs and welfare,
the economic impact of the project, water supply and
conservation, property rights and practicable alternatives to
the project. In addition, the Water Works requested a public
hearing:

to more specifically consider the following
matters including, but not limited to:
conservation, economics, aesthetics, general
environmental concerns, wetlands, historic
properties, fish and wildlife values, land use,
navigation, shore erosion and accretion,
recreation, water supply and conservation, water
quality, energy needs, safety, food and fiber
production, mineral needs, property ownership
considerations and general welfare needs of the
public. In addition, this hearing is requested so
that the public and in particular the citizens and
customers of Bessemer and the customers of the
[Water Works] Board, will have the opportunity
to respond to the issues set out above that have a
direct effect on economy and lifestyle.

A.R. at 218. In short, the Water Works raised, in addition to
particularized reasons for a public hearing, the laundry list
itemized in 33 C.F.R. § 320.4(a)(1). Characterizing its listing
of concerns as satisfaction of a “threshold burden,” the
plaintiff argues that “the burden” shifted to the Corps to either

‘
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13a
Appendix B

informally resolve its concerns, deny the hearing in a writing
stating why a hearing would be unhelpful, or grant a hearing.
Maintaining that the Corps failed to properly pursue the first
two options, the Water Works reasons that the Corps was
required to grant a hearing.’

3. Characterizing the obligations of the Water Works and the
Corps as a set of demonstrative “burdens” is questionable. The use
of the term “burden” in this context implies that the party who carries
the obligation must perform to the demonstrative satisfaction of some
adjudicator. This is not the case. A petitioner, as a precursor to a
Corps’ hearing determination, must merely request a hearing in an
appropriate form. Once that antecedent condition is satisfied, the
Corps is obligated either (1) to resolve the issues raised informally,
(2) to deny a hearing in writing, stating reasons why the hearing
would be unhelpful or (3) to grant the hearing, where such would
be of aid. Although describing the Corps as having a burden to show
that a hearing is unhelpful, it makes little sense to state that it has a
“burden” of granting a hearing — a hearing is either properly granted
or it is not.

The point is grammatical. The language used by the Water
Works implies that action by the Corps is to be taken in anticipation
of litigation rather than as executing a statutory duty. However, the
procedures followed by the Corps are not followed as pre-litigation
behavior, but are obligations meant to insure reasoned determinations
by the Corps. The court is, therefore, not required to find that the
Corps satisfied or failed to satisfy some demonstrative burden.
Instead, it is required only to determine whether the Corps carried
out its statutory or regulatory obligations in a non-arbitrary and non-
capricious manner. It is only where an agency fails to perform its
procedural and substantive obligations — such as where it fails to
give genuine reasons for a decision where those reasons are due —
that an agency’s behavior will be arbitrary and capricious. Reasons,
however, are not and are not expected to be, proof.

14a
Appendix B

The Water Works first asserts that the Corps did not
attempt to resolve the matter informally. It next avers that
the Corps’ written denial of a hearing was given on an
insufficient basis because the Corps’ decision “simply set
forth the Corps’ rationale for justifying the ultimate issuance
of the permit to Bessemer . . .” The defendants answer that
the Corps concluded that the Water Works sufficiently
articulated its concerns to the Corps in its comments and
informal discussions and that, therefore, no additional
information was required.*

In its written statement denying a hearing, the Corps
District Engineer addressed the Water Works’ reasons for
the grant of a public hearing:

The U.S. Army Corps of Engineers jurisdiction
in this permit application relates to the
construction of the water intake structure in
navigable waters of the U.S. The primary focus
of our evaluation will be on the direct impacts of
the structure (e.g. navigation, water quality,
threatened/endangered species, and cultural
resources). Our regulations at 33 CFR 320.4(m)
and guidance contained in Regulatory Guidance
Letter 85-6 states that the primary responsibility
for water allocation rests with the states.

In response to the public notice[,] letters of no
objection or authorization were received from the

4. It apparently found the laundry list, on the other hand,
insufficiently ‘particular’ as required under 33 C.F.R. § 327.4 to
merit an extended response.

1Sa

Appendix B

U.S. Fish and Wildlife Service, National Marine
Fisheries Service, Alabama Department of
Conservation and Natural Resources, Alabama
Department of Environmental Management,
Alabama State Docks, and the Alabama Historical
Commission. Coordination with these agencies
indicates that the proposed project will not
adversely impact fish and wildlife, threatened and
endangered species, properties on or eligible for
the National Register of Historic Places,
navigation, and water quality.

The decision of the City of Bessemer to seek its
own water supply and the consequences of the
decision (higher prices, and reliability) are the
responsibility of the locally elected officials, not
the Corps. Policy at 33 CFR 320.4(q) states that
“... It will generally be assumed that appropriate
economic evaluations have been completed, the
proposal is economically viable, and is needed in
the market place”.

Although the granting of Bessemer’s requested
permit will provide a new-water withdrawal point
on the Black Warrior River, it should not increase
the demand for water in the short term. The water
to be withdrawn by Bessemer is currently being
withdrawn by the [the Water Works] at other
locations and sold to Bessemer. If [the Water
Works] developed new customers to replace
Bessemer, additional demands on water resources
would result. It is estimated that up to 70 per cent

16a
Appendix B

of the water withdrawn by Bessemer would be
returned to Black Warrior River as treated waste
water thus reducing the net withdrawal to 7.5
[million gallons per day].

The proposed Bessemer intake is downstream of
all the [Water Works] intakes and will probably
not impact the [Water Work’s] withdrawal except
during droughts when the Bankhead Lake level
is low. Future increases in water withdrawals will
likely impact navigation depths during droughts,
however, the allocation of water for multi-purpose
use is primarily a State issue. If navigational
servitude is impaired, Federal authority to protect
navigation preempts the State’s right to allocate
water use.

A.R. at 307-08. Based upon his analysis of the concerns
raised by the Water Works, the district engineer concluded
that sufficient data existed with respect to the issues raised
by the Water Works such that no hearing would be necessary.
Given the reasons stated and the factors considered, the
district engineer reasonably concluded that no additional
information would be useful in evaluating the
appropriateness of granting a permit to Bessemer.

The Water Works insists that the affidavit later filed by
Dr. Bruce W. Schwenneker (which was addressed by the
Corps in its final permitting decision) demonstrates that a
public hearing was needed to flush out the concerns stated
by the Water Works. The Corps needed only to consider
whether the issues raised by the party requesting a public

17a
Appendix B

hearing were sufficiently undefined as to require that hearing.
On the basis of the concerns stated by the Water Works in
its letter, the Corps, within its appropriate range of discretion,
determined that the problems were adequately presented and
did not require public hearing for additional statement and
clarification in accordance with its regulations. The decision
to deny a public hearing was neither arbitrary nor capricious.

B. Statutory Hearing Requirements.

The Water Works avers that, even supposing the refusal
to hold a public hearing were not a violation of the Corps’
regulations on the grant of public hearings, the Corps’ refusal
nonetheless violated the Administrative Procedure Act and
the Due Process Clause of the Fifth Amendment. On the issue
of whether a hearing determination that conforms to the
regulations complies with section 5 of the Administrative
Procedure Act, section 10 of the Rivers and Harbors Act of
1899 and section 404 of the Clean Water Act, no case directly
addressing the issue has emerged.’ However, cases that have
broached the issue lead this court to the conclusion that the
denial of a hearing was not violative of the above-listed
statutes. The Fifth Circuit Court of Appeals commented in
Buttrey v. United States, 690 F.2d 1170, 1176 (Sth Cir.1982),
that a public hearing “ ‘usually means a speechmaking
hearing rather than a (trial-type) hearing with a determination
on the record.’ 2 K. DAVIS, ADMINISTRATIVE LAW
TREATISE § 12:7, at 434 (2d ed.1979).” See also Taylor v.
District Engineer, 567 F.2d 1332, 1338 (Sth Cir.1978). The

5. Most cases on involve the denial of a formal hearing, not a
public hearing.

18a
Appendix B

Fifth Circuit also noted that, in general, the purpose of the
speechmaking hearing for federal agencies was to gain input
to assist the agency in making decisions, id., implying that
if an agency found that sufficient input was had from
comments submitted a public hearing was unnecessary. “A
Federal agency is not required to conduct public hearings
before making a threshold determination as to the need for
an EIS so long as members of the public are given the
opportunity to submit facts which might bear upon the agency
decision.” Sierra Club v. Alexander, 484 F.Supp. 455, 471
(N.D.N.Y.1980) (citing WATCH (Waterbury Action, etc.)
v. Harris, 603 F.2d 310, 326 n. 36. (2d Cir.1979)) aff'd 633
F.2d 206 (2d Cir.1980). See also AJA Assoc. v. Army Corps
of Engineers, 817 F.2d 1070, 1073-74 (3d Cir. 1987). In Fund
for Animals, Inc. v. Rice, 85 F.3d 535, 545 (11th Cir.1996),
the Eleventh Circuit Court of Appeals implied that the
opportunity for public hearing crafted by the Corps in its
regulations adequately complied with the Clean Water Act.

The CWA mandates an “opportunity for public
hearings.” See 33 U.S.C. § 1344(a). However, the statute
does not state that the Corps itself must hold its own public
hearings regardless of how many other hearings have been
held on a project. The applicable regulations provide the
Corps discretion to hold hearings on permit applications on
an “as needed” basis. 33 C.F.R. § 327.4. If the Corps
determines that it has the information necessary to reach a
decision and that there is “‘no valid interest to be served by a
hearing,” the Corps has the discretion not to hold one. Id.
327.4(b).

19a
Appendix B

C. Due Process.

In resolving whether the Corps decision to deny a hearing
violated due process, this court is to apply a de novo standard
of review. Summary judgment is appropriate only if this court
concludes that no genuine issue of material fact exists and
that the moving party is entitled to judgment as a matter of
law. Fed.R.Civ.P. 56(c). See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d
202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322,
106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The party
seeking summary judgment bears the initial responsibility
of informing this court of the grounds for its motion, and
identifying those portions of the record, pleadings,
depositions, answers to interrogatories, admissions on file,
and any affidavits that it believes prove the absence of a
genuine issue of material fact. Id. at 323, 106 S.Ct. at 2552-
53. Once the moving party has met this burden, the
nonmoving party “must produce evidence that shows there
exists a genuine issue of material fact.” Cottle v. Storer
Communication, Inc., 849 F.2d 570, 575 (11th Cir.1988).
Rule 56(e) requires the nonmoving party to go beyond the
pleadings and by affidavits, or by the depositions, answers
to interrogatories, admissions on file and, in this case, the
administrative record designate specific facts showing the
presence of a genuine issue for trial. Celotex, 477 U.S. at
324, 106 S.Ct. at 2553. The court may consider the offered
“pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if ee
in deciding whether to grant or deny a summary judgment
motion. Fed.R. Civ. P. 56(c). In resolving whether a given
factual dispute requires submission to a jury, the court must

20a
Appendix B

view the presented evidence through the prism of the
substantive evidentiary burden. Anderson, 477 U.S. at 254-
55, 106 S.Ct. at 2513-14. The court, however, must avoid
weighing conflicting evidence for probity or making
credibility determinations. Welch v. Celotex Corp., 951 F.2d
1235, 1237 (11th Cir.1992).

With respect to whether the denial of a public hearing is
consistent with modern understandings of Fifth Amendment
Due Process, the Fifth Circuit Court of Appeals has held, in
a case involving an earlier version of the Corps regulations
regarding public hearings, that “the procedures set forth in
the regulations of the Corps easily satisfy the requirements
of due process.” Taylor v. District Engineer, 567 F.2d 1332,
1338 (Sth Cir.1978).° Any decision comporting with those
regulations would, therefore, satisfy due process, even if the
resulting decision was substantively incorrect.

In the absence of a fundamental interest, to be entitled
to due process protection, a plaintiff must have a protected
life, liberty or property interest, the deprivation of which is
to be afforded due process. Logan v. Zimmerman Brush Co.,
455 U.S. 422, 428, 102 S.Ct. 1148, 1153-54, 71 L.Ed.2d
265 (1982); Zipperer v. City of Fort Myers, 41 F.3d 619,
623 (11th Cir.1995). Two potential sources exist for the
Water Works’ claimed entitlement to due process: (1) the
regulations stating that interested parties are entitled, in
certain circumstances, to a hearing and (2) the Water Works’

6. Decisions of the Fifth Circuit Court of Appeals made prior
to the circuit split are binding as precedent upon this court unless
otherwise overruled by the Eleventh Circuit Court of Appeals.

21a
Appendix B

riparian rights and economic interests in the outcome of the
permitting decision. The first basis for an interest, that the
Statute or regulations entitle it to a hearing in certain
circumstances, fails, as there is no protected interest in a
procedural right. In Olim v. Wakinekona, 461 U.S. 238, 250-
51, 103 S.Ct. 1741, 1748-49, 75 L.Ed.2d 813 (1983), the
Supreme Court stated:

[a]s the United States Court of Appeals for the
Seventh Circuit recently stated in Shango v.
Jurich, 681 F.2d 1091, 1100-1101 (1982), “fa]
liberty interest is of course a substantive interest
of an individual; it cannot be the right to demand
needless formality.” Process is not an end in itself.
Its constitutional purpose is to protect a
substantive interest to which the individual has a
legitimate claim of entitlement. . . . The State may
choose to require procedures for reasons other
than protection against deprivation of substantive
rights, of course, but in making that choice the
State does not create an independent substantive
right... .

See also Merritt v. Broglin, 891 F.2d 169, 172 (7th
Cir.1989)(“State created procedural rights are insufficient
to create a substantive liberty interest.”). The interest of the
Water Works in the regulation and statute is a mere right to
procedure, i.e., a hearing, created with the purpose of
protecting the substantive interests of the permit applicant
and the public. However, the interests of the public, and in
this case the Water Works, being protected by the Corps’
procedures are far broader than the interests that the Corps
is constitutionally required to protect through its procedures.

22a
Appendix B

The deprivations of substantive interests —- economic
loss and infringement of riparian rights —- which the Water
Works maintains will occur if a hearing is denied are indirect
consequences of a decision by the Corps to permit Bessemer
to build the intake structure, pipeline and water treatment
plant. Indirect deprivations of interests are, however, outside
of the purview of the due process clause. O’ Bannon v. Town
Court Nursing Center, 447 U.S. 773, 787, 100 S.Ct. 2467,
2476, 65 L.Ed.2d 506 (1980); Dumas v. Kipp, 90 F.3d 386,
391 (9th Cir. 1996); and Rivers v. Schweiker, 684 F.2d 1144,
1158 (Sth Cir.1982).’

7. The court is uncertain whether a municipal corporation 1s
entitled to the due process protections of the Fifth Amendment at
all. In State of South Carolina v. Katzenbach, 383 U.S. 301, 323-
24, 86S.Ct. 803, 815-16, 15 L.Ed.2d 769 (1966), the Supreme Court
Stated:

The word ‘person’ in the context of the Due Process
Clause of the Fifth Amendment cannot, by any
reasonable mode of interpretation, be expanded to
encompass the States of the Union, and to our
knowledge this has never been done by any court. See
International Shoe Co. v. Cocreham, 246 La. 244, 266,
164 So.2d 314, 322, n. 5, cf. United States v. City of
Jackson, 318 F.2d 1, 8 (Sth Cir.1963). Likewise, courts
have consistently regarded the Bill of Attainder Clause
of Article I and the principle of the separation of powers
only as protections for individual persons and private
groups, those who are peculiarly vulnerable to non-
judicial determinations of guilt. See United States v.
Brown, 381 U.S. 437[, 85 S.Ct. 1707, 14 L.Ed.2d 484];
Ex parte Garland, 4 Wall. 333[, 18 L.Ed. 366]. Nor does
(Cont'd)

ee

23a

‘ Appendix B
(Cont'd)

a State have standing as the parent of its citizens to
invoke these constitutional provisions against the
Federal Government, the ultimate patens patriae of every
American citizen. Com. of Massachusetts v. Mellon, 262
U.S. 447, 485-486[, 43 S.Ct. 597, 600-01, 67 L.Ed.
1078] State of Florida v. Mellon, 273 U.S. 12, 18{, 47
S.Ct. 265, 266-67, 71 L.Ed. 511).

At issue is whether, like a state, a municipality enjoys no
protection of the Due Process Clause of the Fifth Amendment. In
the past, the Supreme Court has held that a municipal corporation
could not assert federal constitutional rights against their progenitors,
the states. See Williams v. Mayor and City Council of Baltimore,
289 U.S. 36, 40, 53 S.Ct. 431, 432, 77 L.Ed. 1015 (1933) and cases
cited therein. In City of Safety Harbor v. Birchfield, 529 F.2d 1251,
1254-55 (Sth Cir.1976) (footnotes omitted), the Fifth Circuit Court
of Appeals elaborated on this basis for denying municipal
corporations the protections of federal rights as against the states:

Ever since the Supreme Court's landmark decision in
Dartmouth College v. Woodward, 17 U.S. (4 Wheat.)
518, 4 L.Ed. 629 (1819), it has been apparent that public
entities which are political subdivisions of states do not
possess constitutional rights, such as the right to be free
from state impairment of contractual obligations, in the
same sense as private corporations or individuals. 17
U.S. (4 Wheat.) at 660-61 [ ]. Such entities are creatures
of the state, and possess no rights, privileges or
immunities independent of those expressly conferred
upon them by the state. Id.; Williams v. Mayor and City
Council of Baltimore, 289 U.S. 36, 40, 53 S.Ct. 431,
432, 77 L.Ed. 1015 (1933); see Railroad Commission
v. Los Angeles R.R., 280 U.S. 145, 156, 50 S.Ct. 71,
(Cont'd)

24a

Appendix B

(Cont'd)

73-74, 74 L.Ed. 234[ ] (1929); Risty v. Chicago, R.I. &
P.R.R., 270 U.S. 378, 390, 46 S.Ct. 236, 241, 70 L.Ed.
641 (1926); City of New York v. Richardson, 473 F.2d
923, 929 (2nd Cir.1973) cert. denied sub nom. Lavine
v. Lindsay, 412 U.S. 950, 93 S.Ct. 3012, 37 L.Ed.2d
1002 (1973). Thus, in Trenton v. New Jersey, 262 U.S.
182, 43 S.Ct. 534, 67 L.Ed. 937 (1923), the Supreme
Court held that a city which had obtained its water
resources by acquiring a private water company through
proper exercise of its proprietary authority could not
assert the right to freedom from impairment of
contractual obligations because of the difference in the
relation of private and public entities to the state. In
contrast to private individuals and entities, municipal
corporations have repeatedly been denied the right to
challenge state legislation allegedly violative of the
Federal Constitution. Williams v. Mayor and City
Council of Baltimore, supra; Pawhuska v. Pawhuska Oil
& Gas Co., 250 U.S. 394, 398, 39 S.Ct. 526, 527-28,
63 L.Ed. 1054 (1919) (‘as respects grants of political
governmental authority to cities, towns, counties, and
the like the legislative power of states is not restrained
by the contract clause of the Constitution’); City of New
Orleans v. New Orleans Water-Works Co., 142 U.S.
79, 12 S.Ct. 142, 35 L.Ed. 943 (1891).

See also Appling County v. Municipal Electric Authority of Georgia,
621 F.2d 1301, 1307-08 (Sth Cir. 1980).

An apparent corollary of the argument given by the Fifth Circuit,
that a municipality derives all of its rights, privileges and immunities
from the state’s conference of those rights on the municipality, is
that it is impossible for the municipality to have any rights, privileges

(Cont'd)

eK —

s
}
}
t

25a

Appendix B

(Cont'd)

or immunities that cannot be conferred by the state. The State, as an
entity not enjoying the protections of the Due Process Clause may
not be able to confer Fifth Amendment Due Process rights upon the
municipality. See City of Sault Ste. Marie, Michigan v. Andrus,
532 F.Supp. 157, 167-68 (D.C.D.C.1980). The weakness of this
argument is that constitutional rights are supposedly non-
transferrable (read “inalienable”) and, therefore, cannot be imparted
on an individual or organization by the state, a citizen or anything
else, aside from the Constitutional provisions.

Apparently, the resolution to the problem is not to be found in
consideration of what rights are conferred by whom, but through an
examination of the meaning of the term “person” in the Fifth
Amendment to determine if municipal corporations are directly
protected. Here, though, there exists conflicting guidance. The
relevant portion of the Fifth Amendment states:

... nor shall any person be subject for the same offense
to be twice put in jeopardy of life or limb; nor shall be
compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property
without due process of law; nor shall private property
be taken for public use, without just compensation.

U.S. CONST., AMENDMENT V. As a structural matter, given that
the rights enumerated are all granted to the same subject, “any
person,” a determination of who is a person for any one the
enumerated rights should extend equally to any other rights in the
clause. One provision of the Fifth Amendment, the takings clause,
has been held by the Supreme Court to bestow a right upon a
municipality. See Thorpe v. Housing Authority of the City of
Durham, 393 U.S. 268, 278 n. 31, 89 S.Ct. 518 n. 31, 21 L.Ed.2d
474 (1969). At the same time, the Supreme Court has held that “the

(Cont'd)

26a

Appendix B

Il. THE PUBLIC INTEREST REVIEW.

The second grounds for remand raised by the plaintiff is
that the Corps inadequately considered the impact of
Bessemer’s proposed water project on the public interest.
The Water Works contents that the Corps failed to conduct
an adequate public interest review because (1) the Corps’
analysis was too narrow in scope; (2) the Corps did not
conduct an adequate consideration of the need of the project;
(3) the Corps did not appropriately consider alternatives to
the construction of the project; (4) the Corps did not consider
water supply in making its decision; (5) the Corps failed to
address the economic impacts of the project, (6) the Corps

(Cont'd)
privilege against compulsory self-incrimination should be ‘limited
to its historic function of protecting only the natural individual from
compulsory incrimination through his own testimony or personal
records.’ ” Bellis v. United States, 417 U.S. 85, 89-90, 94 S.Ct. 2179,
2183, 40 L.Ed.2d 678 (1974)(quoting United States v. White, 322
U.S. 694, 701, 64 S.Ct. 1248, 1252, 88 L.Ed. 1542 (1944)).

Perhaps the issue can be resolved by affiliating the Due Process
Clause with the self-incrimination provision of the Fifth Amendment
because the two are part of the same phrase, whereas the Takings
Clause exists as an entirely separate phrase. However, this argument
borders on hair-splitting, as its conclusion rests entirely on the
emphasis placed on the comma resting between the self-
incrimination language and the Due Process Clause as compared to
the semicolon placed between the Due Process Clause and the
Takings Clause. A thorough resolution of the issue is only to be
found in a careful historical analysis of the clause and its common
law ancestry. However, such analysis is not necessary to this court’s
conclusion.

27a

Appendix B

insufficiently addressed the issue of water quality; and
(7) the Corps did not fully consider the impacts of the project
on threatened and endangered species. Before addressing the
substance of this extended argument, however, the court will
examine the plaintiff's argument that in evaluating the Corps’
decision to permit the Bessemer project the court should
consider not only the administrative record, but should allow
the plaintiff to conduct discovery and introduce materials
extraneous to the record in a hearing before the court.

A. Hearings and Discovery.

“The focal point for judicial review of an administrative
agency’s action should be the administrative record.”
Preserve Endangered Areas of Cobb’s History Inc. v. United
States Army Corps of Engineers, 87 F.3d 1242, 1246 (11th
Cir.1996). The Water Works contends that, although the
administrative record is the focus in reviewing administrative
action, where insufficient information exists in the record
for the court to determine whether the agency’s action is
arbitrary and capricious, it should look beyond the record,
allowing discovery and an in-court hearing. In Camp v. Pitts,
411 U.S. 138, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973), the
Supreme Court addressed the twin issues of when and to
what extent a district court may conduct a hearing on a matter
decided by an administrative agency. On the issue of when
a district court may hold a hearing on review of a case from
an agency, the Court stated that a hearing may be appropriate
if an agency fails to adequately explain its decision. Id. at
142, 93 S.Ct. at 1243-44. However,

[i]f the record before the agency does not support
the agency action, if the agency has not considered

28a
Appendix B

all relevant factors, or if the reviewing court
simply cannot evaluate the challenged agency
action on the basis of the record before it, the
proper course, except in rare circumstances, Is to
remand to the agency for additional investigation
or explanation. The reviewing court is not
generally empowered to conduct a de novo inquiry
into the matter being reviewed and to reach its
own conclusions based on such an inquiry.

Florida Power & Light Company v. Lorion, 470 U.S. 729,
744, 105 S.Ct. 1598, 1607, 84 L.Ed.2d 643 (1985); Preserve
Endangered Areas of Cobb’s History, Inc. [PEACH] v.
United States Army Corps of Engineers, 87 F.3d at 1246
(quoting Florida Power & Light). In PEACH, the Eleventh
Circuit Court of Appeals in passing noted four circumstances
(elaborated by the Ninth Circuit Court of Appeals in Animal
Defense Council v. Hodel, 840 F.2d 1432, 1436-37 (9th
Cir.1988)), that could potentially support a decision by a
district court to hold a hearing:

The Ninth Circuit has specified that a court may
go beyond the administrative record only where:
1) an agency’s failure to explain its action
effectively frustrates judicial review; 2) it appears
that the agency relied on materials not included
in the record; 3) technical terms or complex
subjects need to be explained; or 4) there is a
strong showing of agency bad faith or improper
behavior. (Citation omitted) We need not consider
these exceptions as none of them apply in the
instant case.

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29a
Appendix B

Preserve Endangered Areas of Cobb’s History, Inc. [PEACH]
v. United States Army Corps of Engineers, 87 F.3d at 1246
n. |. Even were the court to accept the four listed exceptions
as an accurate statement of the law of this circuit, the plaintiff
has not shown that the Corps’ decision is flawed for any of
the listed reasons. The only basis argued by the Water Works
as justifying a hearing is that, in giving “abstract and
conclusory” grounds for granting Bessemer’s permit, the
Corps failed to adequately explain its decision and thereby
frustrated judicial review. Far from being abstract and
conclusory, however, the district engineer’s permitting
decision is thorough and thoughtful. The explanations given
by the district engineer are sufficiently clear and developed
to allow this court to review the record and determine whether
the decision was arbitrary and capricious.

The Water Works asserts, as an additional reason for
the grant of a hearing, that because the Corps was required
to undertake an environmental assessment In accordance with
the National Environmental Policy Act (“NEPA”), this court
is not obligated to confine its review to the administrative
record. Instead, the plaintiff argues, the court is authorized
to look beyond the administrative record to consider factors
that the district engineer may have ignored. The impact
of this argument is, however, confined to the Corps’
environmental assessment and will be taken up in more detail
when the court reviews the Corps’ environmental assessment
of the Bessemer project. At this point, the court simply notes
that any NEPA provision permitting the submission of new
evidence for examining the adequacy of the Corps’
environmental assessment does not extend to the Corps’
public interest review and the Corps’ review under the

30a
Appendix B

Environmental Protection Agency’s Guidelines governing
permits for discharges of dredged or fill material promulgated
through section 404(b)(1) of the Clean Water Act.

B. Scope of Review.

In considering any permit application, the Corps is
required to follow, at a minimum, the regulations set out in
33 C.F.R. Parts 320-329. The regulations contained in this
section obligate the Corps to consider certain general factors
in every permitting decision and, depending upon the activity
being permitted, other more specific factors and policies.
See 33 C.F.R. § 320.1(b) & § 320.4. The review conducted
under these regulations is deemed the “public interest review”
and is elaborated in detail in 33 C.F.R. § 320.4(a)(1):

(a) Public Interest Review.

(1) The decision whether to issue a permit will
be based on an evaluation of the probable impacts,
including cumulative impacts, of the proposed
activity and its intended use on the public interest.
Evaluation of the probable impact which the
proposed activity may have on the public interest
requires a careful weighing of all those factors
which become relevant in each particular case.
The benefits which reasonably may be expected
to accrue from the proposal must be balanced
against its reasonably foreseeable detriments. The
decision whether to authorize a proposal, and if
so, the conditions under which it will be allowed
to occur, are therefore determined by the outcome

3la

Appendix B

of this general balancing process. That decision
; should reflect the national concern for both
} protection and utilization of important resources.
: All factors which may be relevant to the proposal

must be considered including the cumulative
effects thereof: among those are conservation,
economics, aesthetics, general environmental
concerns, wetlands, historic properties, fish and
wildlife values, flood hazards, floodplain values,
land use, navigation, shore erosion and accretion,
recreation, water supply and conservation, water
quality, energy needs, safety, food and fiber
production, mineral needs, considerations of
property ownership and, in general, the needs and
welfare of the people. For activities involving 404
discharges, a permit will be denied if the discharge
that would be authorized by such permit would
not comply with the Environmental Protection
Agency’s 404(b)(1) guidelines. Subject to the
preceding sentence and any other applicable
guidelines and criteria (see §§ 320.2 and 320.3),
a permit will be granted unless the district
engineer determines that it would be contrary to
the public interest.

See also Van Abbema v. Fornell, 807 F.2d 633, 636 (7th
Cir.1986). Certain criteria are to be evaluated in every
application for a permit:

(i) The relative extent of the public and private
need for the proposed structure or work;

AU RP aa RCN et mo He

32a
Appendix B

(ii) Where there are unresolved conflicts as to
resource use, the practicability of using reasonable
alternative locations and methods to accomplish
the objective of the proposed structure or work;
and

(iii) The extent and permanence of the beneficial
and/or detrimental effects which the proposed
structure or work is likely to have on the public
and private uses to which the area is suited.

-33 C.F.R. § 320.4(a)(2). In addition, certain factors, such as
conservation, economics, aesthetics, general environmental
concerns, wetlands, historic properties, fish and wildlife
values, etc., are to be considered and evaluated based upon
their relative importance to the project at hand. 33 C.F.R.
§ 320.4(a)(3).

In conducting the public interest review, the Corps is
limited in the aspects of the entire project on which it may
focus. The Water Works first questions the limitations the
Corps placed on the scope of its public interest review.
According to the Water Works, the Corps, in conducting its
public interest review, impermissibly confined itself to
examining the impacts of the construction and maintenance
of the intake facility and the construction and maintenance
of the pipeline across various streams and other waters and
wetlands. Allegedly, it did not review the consequences of
the entire project, including construction and maintenance
of the proposed water treatment plant. The Water Works
contends that examination of these aspects of Bessemer’s
proposed project was required under the public interest

SOR eae | Onaga! re NS SL Iam at apt LS ONPG: LOR Sah

lta Ae an Ta ay Bins Fee Chg tile Bhs 2% ELL Aly ae ie MOR

33a
Appendix B

review. Although the Water Works cites no law to support
its contention, it argues that because the public interest
review is a “broad review,” not only should the structures
affecting the navigable waters of the United States be
evaluated, but also those structures that help fulfill the
purposes of the project.

The defendants respond that the plaintiff's contention
that a “broad review” is required is mistaken, Stating 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 plaintiff counters that 33 C.F.R. Pt. 325 App. B
§ 7 does not apply to the public interest review because its
only stated purpose is to guide the NEPA review of the action.
The defendants dispute this contention and point to 33 C.F.R.
Pt. 325, App. B § 7.a, which states that “(t]he EA [NEPA
environmental assessment] should normally be combined
with other required documents (EA/404(b)(1)/SOF/FONSI).
‘EA’ as used throughout this Appendix normally refers to
this combined document.” According to the defendants,
because the environmental assessment as described in
appendix B includes the other documents involved in other
evaluations, the regulations governing the jurisdictional
scope of the NEPA review by definition govern the
jurisdictional scope of the public interest review.’

8. The court here notes that the arguments garnered by the
plaintiff in support of its positions tend to be a mish-mash of statutory
and regulatory provisions assembled without contextual or other
guides. The plaintiff manages to confuse, conflate and combine

regulations and laws governing all three forms of review throughout
its briefs.

34a
Appendix B

In Sylvester v. Army Corps of Engineers (Sylvester II),
882 F.2d 407, 410 n. 4 (9th Cir., 1989), the Ninth Circuit
Court of Appeals noted a distinction between the scope of
the public interest review and the NEPA review:

[U]nder the C.W.A. [Clean Water Act], the Corps
is not limited by a 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.

The language in Sylvester II notwithstanding, the court is
convinced 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. First, the language of the regulation defining the
focus of the public interest review limits that focus to the
effects of the “proposed activity”:

The decision whether to issue a permit will be
based on an evaluation of the probable impacts,
including cumulative impacts, of the proposed
activity and its intended use on the public
interest. .. . The decision whether to authorize a
proposal, and if so, the conditions under which it
will be allowed to occur, are therefore determined
by the outcome of this general balancing process.

33 C.F.R. § 320.4. The above makes it clear that what is
meant by “proposal” is that which the Corps has the capacity
to authorize. However, only the portion of an overall project
that occurs in the navigable waters of the United States can

35a
Appendix B

be authorized by the Corps. The Corps has no authority to
permit or even regulate any other activity, although it may
consider the direct, indirect and cumulative impacts of the
proposed activity. The Corps’ public interest review is not
to cover the totality of all activities, however.

Further, the results of the public interest review are to
be recorded in a statement of findings, in conjunction with
the other review documents. 33 C.F.R. § 325.2. That the
regulations, in the same section in which the scope of analysis
for the environmental assessment (“EA”) is described, state
that the “EA” refers to the combined document containing
the statement of findings indicates to the court that the scope
of analysis considered in 33 C.F.R. Pt. 325 App. B. § 7 is
the same as the activity to be considered under 33 C.F.R.
§ 320.4(a)(1).’

The Corps drafted its first set of regulations governing
the scope of review in cases involving both federal and non-
federal actions in 1980. See Sylvester v. U.S. Army Corps
of Engineers, 884 F.2d 394, 398 (9th Cir.1989). The same
year, the Fifth Circuit Court of Appeals, in Save the Bay,

9. Not that it makes any considerable difference whether the
“proposed action” considered in the public interest review and the
“scope” of the NEPA review overlap as a matter of regulatory
definition. Even if the focus of the two reviews are not necessarily
co-extensive, they are contingently coextensive in this case. The
proposed activity as defined by the district engineer in his statement
of findings, see infra at 1070-71, is precisely the same as the scope
of analysis decided by the district engineer in the environmental
assessment attachment. See discussion of district engineer’s
jurisdiction determination, infra at 1070-73.

36a
Appendix B

Inc. v. United States Corps of Engineers, 610 F.2d 322, 327
(Sth Cir.1980),'° held that the Corps’ regulations limited its
public interest review in certain cases to the federal aspects
of a project and that the Corps was not required to consider
the entire proposed project in conducting its review. In Save
the Bay v. United States Corps of Engineers, proposed to
build a titanium dioxide plant in Delisle, Mississippi, a town
located near Bay St. Louis (an inlet from the Mississippi
Gulf Coast). Associated with the building of the plant was
construction of a 24-inch pipeline that would extend 2,000
feet and discharge industrial wastewater into the Bay of St.
Louis. Id. at 323-24. The Corps permitted the construction
of the pipeline and, in deciding to do so, considered solely
the consequences of the pipeline construction and discharge,
not of the construction and maintenance of the titanium
dioxide plant as a whole.

The plaintiffs objected to the Corps permitting decision
in the district court, arguing, among other things, that the
Corps had an obligation to consider the effects of the entire
project. In support of its contention, the plaintiffs argued
that if any portion of the proposed activity was enabled by
the pipeline, the consequences of the enabled activity should
be considered in addition to the impacts of the construction
and maintenance of the pipeline itself. Because, the plaintiffs
alleged, the pipeline enabled the plant to discharge its waste
water, the plant was enabled by the pipeline and the impacts
of its construction and maintenance should have been

10. This case and the one discussed after it (Winnebago) are
both principally National Environmental Policy Act cases and the
issue of the scope of review is centered on what the scope of review
1s in developing an environmental assessment.

2 eevee

CN ents aR lOO op the Blt

37a
Appendix B

considered. The Fifth Circuit Court of Appeals stated that if
the “enablement theory” was correct, the plant should have
been considered in Corps’ review of the permit. However,
the Fifth Circuit Court of Appeals rejected the “enablement
theory” of the plaintiffs. Id. at 327. Instead, the Fifth Circuit
merely found that the Corps was only required to consider
the impacts of the pipeline in making its permitting decision.
The court did not elaborate on its basis for finding that the
Corps could confine its review to the Pipeline, but instead
limited itself to explication of why the cases cited by the
plaintiffs did not support the enablement theory. Id. at 327.

In Winnebago Tribe of Nebraska v. Ray, 621 F.2d 269
(8th Cir.1980), the Eighth Circuit Court of Appeals
considered whether the Corps was required to evaluate an
entire project involving the construction of a power line that
crossed the Missouri River and would run through the
Winnebago Indian Reservation. The river crossing would
extend 1.25 miles out of the total sixty-seven miles that the
power line was to-extend. The Corps refused to extend its
analysis beyond that portion of the line crossing the river.
Id. at 270.

The Winnebago Tribe and others brought an action in
the district court to require the Corps to consider the impact
upon the other sixty-five and some-odd miles, and the case
eventually found its way to the Eighth Circuit Court of
Appeals. First, the Eighth Circuit distinguished the case
before it from an earlier case in which an “enablement
theory” was proposed. Id. at 272. Finding that “[i]n
‘enablement’ cases federal action is a legal condition
precedent to accomplishment of an entire nonfederal

38a
Appendix B

project,”'' the Corps’ ability to deny permitting of only a
section of the power line constituted “but-for” veto power
over the project. (That is, but for the denial of the permit of
the section of the line, the entire line could have been built.)
The court then developed and applied three factors by which
to determine if the Corps would have jurisdiction over an
entire project based upon its ability to issue a permit as to a
portion of the project.

The court in NAACP v. Medical Center, 584 F.2d 619
(1978), identified three factors helpful in determining
whether “but for” or factual control requires project-wide
analysis: (1) the degree of discretion exercised by the agency
over the federal portion of the project; (2) whether the federal
government has given any direct financial aid to the project;
and (3) whether “the overall federal invoivement with the
project (is) sufficient to turn essentially private action into
federal action.” Id. at 629 (citation omitted)... .

In the present suit, while the Corps has broad discretion
to consider environmental impacts (see Zabel v. Tabb, 430

11. As the Eight Circuit Court of Appeals considered it, the
Corps would have enablement jurisdiction over the entire project
only when its legal decision governed the entire project This may
very well have been a question-begging answer to the issue of the
“enablement theory” of jurisdiction, i.e., that the Corps has
jurisdiction to review the entire project when it has jurisdiction to
review the entire project.

Another point to note is that while both the Fifth Circuit and
the Eighth Circuit discuss an “enablement theory” of Corps’
jurisdiction, they clearly mean two different things by it.

; 39a

Appendix B

F.2d 199 (Sth Cir.1970), cert. denied, 401 U.S. 910, 91 S.Ct.
i 873, 27 L.Ed.2d 808 (1971)), that discretion must be
i exercised within the scope of the agency’s authority. As noted
above, the Corps’ jurisdiction under section 10 extends only
to areas in and affecting navigable waters. See United States
v. Sexton Cove Estates, Inc., 526 F.2d 1293, 1299 (Sth
Cir.1976); Weiszmann v. District Engineer, United States
Army Corps of Engineers, 526 F.2d 1302, 1304 (Sth
Cir.1976); United States v. Joseph G. Moretti, Inc., 526 F.2d
1306 (Sth Cir.1976). As the Third Circuit observed in United
States v. Stoeco Homes, Inc., 498 F.2d 597, 607 (3d
Cir.1974):

The federal environmental protection statutes did .
not * * * by their terms enlarge the jurisdiction

of the Army Corps of Engineers under the Rivers

and Harbors Appropriation Act of 1899. If there

is no such jurisdiction environmental protection

is still a matter primarily of state concern.

Thus, the Corps’ discretion under section 10 does
not dictate project-wide review.

The factors remaining for consideration under
Medical Center are the presence of direct federal
funding and the degree of federal involvement.
There has been no direct or even indirect federal
funding for this project. Cf. Ely v. Velde, 451 F.2d
1130 (4th Cir.1971)(Law Enforcement Assistance
Administration involvement in and funding for a
state prison amounts to major federal action). As
for federal involvement, the fact that part of the

40a

Appendix B

line will cross the Winnebago Reservation does
not suffice to turn this essentially private action
into federal action. Federal law allows the state
to condemn this land for any public purpose in
the same manner as land owned in fee. 25 U.S.C.
§ 357 (1976). Thus, we conclude that the Corps
did not have sufficient control and responsibility
to require it to study the entire project.

Id. at 272-73 (footnotes omitted).

In 1988, the Corps drafted an amendment to the
regulations that effectively codified Save the Bay and
Winnebago. Sylvester v. U.S. Army Corps of Engineers, 884
F.2d at 398. These regulations now state:

b. Scope of Analysis. (1) In some situations, a
permit applicant may propose to conduct a
specific activity requiring a Department of the
Army (DA) permit (e.g., construction of a pier in
a navigable water of the United States) which is
merely one component of a larger project (e.g.,
construction of an oil refinery on an upland area).
The district engineer should establish the scope
of the NEPA document (e.g., the EA or EIS) to
address the impacts of the specific activity
requiring a DA permit and those portions of the
entire project over which the district engineer has
sufficient control and responsibility to warrant
Federal review.

(2) The district engineer is considered to have
control and responsibility for portions of the

‘i ae,

4la
Appendix B

project beyond the limits of Corps jurisdiction
where the Federal involvement is sufficient to turn
an essentially private action into a Federal action.
These are cases where the environmental
consequences of the larger project are essentially
products of the Corps permit action.

Typical factors to be considered in determining
whether sufficient “control and responsibility”
exists include:

(i) Whether or not the regulated activity
comprises “merely a link” in a corridor
type project (e.g., a transportation or
utility transmission project).

(ii) Whether there are aspects of the
upland facility in the immediate vicinity
of the regulated activity which affect the
location and configuration of the
regulated activity.

(iii) The extent to which the entire
project will be within Corps
jurisdiction.

(iv) The extent of cumulative Federal

control and responsibility.

A. Federal control and responsibility will include
the portions of the project beyond the limits of
Corps jurisdiction where the cumulative Federal

42a

Appendix B

involvement of the Corps and other Federal
agencies is sufficient to grant legal control over
such additional portions of the project. These are
cases where the environmental consequences of
the additional portions of the projects are
essentially products of Federal financing,
assistance, direction, regulation, or approval (not
including funding assistance solely in the form
of general revenue sharing fluids, with no Federal
agency control over the subsequent use of such
funds, and not including judicial or administrative
civil or criminal enforcement actions).

B. In determining whether sufficient cumulative
Federal involvement exists to expand the scope
of Federal action the district engineer should
consider whether other Federal agencies are
required to take Federal action under the Fish and
Wildlife Coordination Act (16 U.S.C. 661 et seq.),
the National Historic Preservation Act of 1966
(16 U.S.C. 470 et seq.), the Endangered Species
Act of 1973 (16 U.S.C. 1531 et seq.), Executive
Order 11990, Protection of Wetlands, (42 U.S.C.
4321 91977), and other environmental review
laws and executive orders.

C. The district engineer should also refer to
paragraphs 8(b) and 8(c) of this appendix for
guidance on determining whether it should be the
lead or a cooperating agency in these situations.

33 C.F.R. Pt. 325, App. B § 7.b. The Corps’ regulations give

examples as a guide to how specific permitting decisions
should be handled.

43a
Appendix B

For those regulated activities that comprise merely
a link in a transportation or utility transmission
project, the scope of analysis should address the
Federal action, i.e., the specific activity requiring
a DA permit and any other portion of the project
that is within the control or responsibility of the
Corps of Engineers (or other Federal agencies).

For example, a 50-mile electrical transmission
cable crossing a | 1/4 mile wide river that is a
navigable water of the United States requires a
DA permit.'? Neither the origin and destination
of the cable nor its route to and from the navi gable
water, except as the route applies to the location
and configuration of the crossing, are within the
control or responsibility of the Corps of
Engineers. Those matters would not be included
in the scope of analysis which, in this case, would
address the impacts of the specific cable crossing.
Conversely, for those activities that requireaDA
permit for a major portion of a transportation or
utility transmission project, so that the Corps
permit bears upon the origin and destination as
well as the route of the project outside the Corps
regulatory boundaries, the scope of analysis
should include those portions of the project
outside the boundaries of the Corps section
10/404 regulatory jurisdiction. To use the same
example, if 30 miles of the 50-mile transmission

ee ee Ree ee ee en a Ee

12. Note the striking similarity to the facts in Winnebago Tribe
of Nebraska v. Ray, 621 F.2d at 270.

44a
Appendix B

line crossed wetlands or other “waters of the
United States,” the scope of analysis should reflect
impacts of the whole 50-mile transmission
lime....

In all cases, the scope of analysis used for
analyzing both impacts and alternatives should
be the same scope of analysis used for analyzing
the benefits of a proposal.

33 C.F.R. Pt. 325, App. B § 7.b(3).

In a description of the project, the district engineer
discussed the intake structure and pipeline as relevant to his
analysis with respect to permitting:

a. Project Description: Construct a water intake
structure, a 30-inch diameter transmission line and
a 25-million-gallons per day (MGD) water
treatment plant. Construction of the intake
structure includes a temporary 240-foot-long
Z-pile cofferdam,"’ controlled blasting and
. dredging of up to 500 cubic yards of silt, sand,
gravel, rock, and debris in the intake structure
channel. The transmission line will generally
follow existing roadways and a natural gas
pipeline, and have a total length of approximately
21 miles. Construction of the transmission line

13. A cofferdam is “[a] temporary watertight enclosure that is
pumped dry to expose the bottom of a body of water so that
construction, as of piers, may be undertaken.” AMERICAN
HERITAGE DICTIONARY, 3D EDITION, at 368.

45a
Appendix B

includes the redeposit of soil material (fallback)
incidental to pipeline excavation (550 cubic
yards), and the discharge of bedding material
(crushed stone) and riprap" at 17 creek/drainway
crossings. The total length of the 17 crossings is
272 feet (0.051 mile or 0.0024% of the pipeline
length)... .

A.R. at 901-02. The Water Works raises the argument that
the district engineer was ambivalent about whether he was
required to consider only the construction of the pipeline
and intake structure or the entire Bessemer project. Because,
the Water Works contends, the district engineer was
ambiguous about the scope of the review, the court should
either interpret the review’s scope to include the entire project
and remand the case because the Corps failed to consider
the entire project at points in the review, or the court should
remand the case to the Corps for it to determine the
appropriate scope of review.'® The Water Works bases its

14. Riprap is “[a] loose assemblage of broken stones erected
in water or on soft ground as a foundation” or a “broken stone[ |
used for such a foundation.” AMERICAN HERITAGE
DICTIONARY, 3D EDITION, at 1556.

15. Of course, as this court realizes, if the Water Works is
unhappy about the determination of the scope of the Corps’ review
on remand, it will file yet another action in this court. In fact, this
court envisions that the plaintiff will continue to resist the Bessemer
project on permitting grounds until a higher federal court than this
one finds that the Corps properly pertained the facility. In this way,
administrative procedure may encourage unfair competition and a

(Cont'd)

46a
Appendix B

argument regarding the district engineer’s apparent
ambivalence on a statement of jurisdiction made in response
to issues raised by the plaintiff concerning practicable
alternatives and water allocation:

The Corps jurisdiction in this permit application
relates to the construction of the water intake
structure and pipeline in jurisdictional waters of
the United States. The Corps does not have
jurisdiction over the withdrawal or allocation of
water from the Black Warrior River. The primary
focus of our evaluation is on the direct impacts
of the intake structure, pipeline and treatment
plant (e.g. navigation, water quality, threatened
and endangered species, and cultural resources).
Corps regulations at 33 CFR 320.4(m) and
guidance contained in Regulatory Guidance Letter
85-6 states that the primary responsibility for
water allocation rests with the states.

(Cont'd)

waste of judicial resources. For example, this case does not once
concern itself in any depth with the substance of the Corps’ decision,
only with whether the Corps followed an elaborate set of procedures
that are likely more difficult for the court to comprehend than the
agency itself. However, given their ornate and convoluted structure,
an individual with enough monetary power who is opposed to a
project of any sort can, by finding some threadbare indication that
the regulations were not complied with or were not reasonable, either
make the project economically unfeasible due to litigation costs or
cause extreme delay in construction of the project sufficient to recoup
the costs invested in litigation.

ne

47a

Appendix B

A.R. at 916 (emphasis added). The Water Works contends
that the district engineer’s statement that its focus was upon
the “direct impacts of the intake structure, pipeline and
treatment plant” constitutes a determination to review the
entire Bessemer project. The defendants, by contrast,
consider the significant portion of the district engineer’s
description of his jurisdiction to be the limitation of
jurisdiction to the intake structure and pipeline.

The district engineer’s elaboration of the directly
relevant impacts of the construction in the navigable waters
in his description of the proposal (at A.R. at 901-02, above)
indicates that his review was likely focused upon the
consequences of that construction. This is further evidenced
by full consideration of the district engineer’s statement of
the Corps’ jurisdiction. The district engineer states quite
clearly that the Corps’ jurisdiction is limited to consideration
of impacts of construction of the intake structure and
pipeline. That the district engineer goes on to state that the
“primary focus of our evaluation is on the direct impacts of
the intake structure, pipeline and treatment plant” is not
meant as an extension of jurisdiction to the treatment plant,
but is instead a description of the district engineer’s analysis
as Concerning the consequences on navigation, water quality,
threatened and endangered species and cultural resources that
the intake structure and pipeline would create based upon
the construction and maintenance of the entire project. In
sum, the district engineer is concerned with the water
treatment plant only insofar as it affects the effects of the
intake structure and pipeline on navigation, etc.

The Water Works next challenges the reasonableness of
the district engineer’s interpretation of the regulations on

48a
Appendix B

the basis that the intake structure and pipeline are
interdependent with the water treatment plant and that,
consequently, the entire project should be considered. This
argument by the Water Works is significantly similar to the
enablement theory raised by the plaintiffs in Save the Bay.
Save the Bay, Inc. v. United States Corps of Engineers, 610
F.2d at 327. According to the Water Works, the project is
interdependent in that one portion of the project will not work
without the other parts, such as the pipeline and intake
structure. So much is true. But the same was the case with
the titanium dioxide plant and industrial wastewater pipeline
in Save the Bay. Id. Even though the reasoning of the Water
Works is correct, legal support is absent. As our predecessor
circuit found in Save the Bay, there is no support for an
enablement theory. Id.'° As the Ninth Circuit Court of
Appeals noted in Sylvester v. U.S. Army Corps of Engineers,
884 F.2d at 398, this reasoning was incorporated into the
regulations presently employed by the Corps in determining
the scope of its jurisdiction.

The district engineer determined that the treatment plant
did not fall under the regulatory contro] of other federal
statutes and that the construction of the intake structure and
the pipeline crossings comprised a link in the chain used to
provide water to Bessemer. See 33 C.F.R. Pt. 325, App. B
§ 7.b(2). Again, the plaintiff argues that the intake structure
and pipeline crossings enable the water treatment plant to
operate and are therefore more than mere links in the chain.

16. As this court noted earlier in this opinion, decisions of the
Fifth Circuit Court of Appeals announce prior to the circuit split are
binding upon this court, unless otherwise overruled by the Eleventh
Circuit Court of Appeals.

49a
Appendix B

The water treatment plant and the aspects of the project
not related to the intake structure and the pipeline crossings
are not within the scope of the Corps’ jurisdiction in
undertaking the public interest review. The intake structure
and pipeline crossings comprise but a small portion of the
entire project. The water treatment plant is far upland from
the intake structure. Perhaps the intake structure and pipeline
are more than mere links, but the Corps’ permitting regulation
over these structures constitutes no more than a “but-for”
veto over the entire project. See Winnebago Tribe of
Nebraska v. Ray, 621 F.2d at 272. Even if the intake structure
and pipeline are essential for the viability of the project, the
district engineer was not acting improperly in determining,
as with the example of the power line crossing the
unavoidable river, that the structures’ necessity did not permit
the Corps to consider the entire project.

C. Needs Analysis.

The Water Works next argues that in failing to
adequately determine if Bessemer needed an additional
supply of water, the Corps improperly conducted its needs
analysis under its general public interest review. The
defendants respond that the Water Works’ argument that the
Corps was required to perform a needs analysis is misguided.

33 C.F.R. § 320.4(a)(2)(i) states:

The following general criteria will be considered
in the evaluation of every application:

(i) The relative extent of the public and
private need for the proposed structure
or work...

50a
Appendix B

The Corps contends that in the decision to permit the
Bessemer project, a needs analysis was not necessary. In
support of its position, the Corps cites 33 C.F.R.
§ 320.4(a)(3):

The specific weight of each factor is determined
by its importance and relevance to the particular
proposal. Accordingly, how important a specific
factor is and how much consideration it deserves
will vary with each proposal. A specific factor
may be given great weight on one proposal, while
it may not be present or as important on another.
However, full consideration and appropriate
weight will be given to all comments, including
those of federal, state, and local agencies, and
other experts on all matters within their expertise.

The defendants reason that because any “specific factor,”
such as a needs analysis, “may not be present” in a public
interest review that, at least in principle, the Corps was not
required to perform a needs analysis in the instant case.
Although the Corps is to be given some leeway in the
interpretation of its own regulations, where the agency’s
action clearly diverges from its regulations, the matter ceases
to be one of interpretation and becomes one of the Corps’
failure to follow its own rules. The language permitting the
district engineer to omit a factor from consideration is in
contrast to the language in section 320.4(a)(2) which states
that every application will contain an evaluation of needs.

Further, the needs analysis is considered a “criterion”
to be considered in making a permitting determination, not

ee NN

Sla
Appendix B

a “factor.” The term “factors” used in section 320.4(a)(3)
more properly refers to the list of considerations contained
at section 320.4(a)(1):

All factors which may be relevant to the proposal
must be considered including the cumulative
effects thereof: among those are conservation,
economics, aesthetics, general environmental
concerns, wetlands, historic properties, fish and
wildlife values, flood hazards, floodplain values,
land use, navigation, shore erosion and accretion,
recreation, water supply and conservation, water
quality, energy needs, safety, food and fiber
production, mineral needs, considerations of
property ownership and, in general, the needs and
welfare of the people.

The regulations envision these factors as not only
standing alone in the analysis of public interest but also as
partaking in the required criteria evaluations. For example,
economic needs, environmental needs, mineral needs and
the like can be considered, if such factors are applicable, in
determining the public and private needs in question.
Therefore, although one or more factors may be irrelevant
in conducting a public interest review, it does not follow
that consideration of a criterion is irrelevant.

The defendants contend that the Corps is to generally
assume the need for a particular project to be genuine when
the permit applicant is a “private applicant.” See 33 C.F.R.
§ 320.4(q). The Corps, argues the defendants, interprets the
term “private applicant” to mean any “non-federal” applicant,

52a

Appendix B

including municipal corporations. Bessemer being a private
applicant, consideration of needs is not required.

33 C.F.R. § 320.4(q) states:

Economics. When private enterprise makes
application for a permit, it will generally be
assumed that appropriate economic evaluations
have been completed, the proposal is
economically viable, and is needed in the market
place. However, the district engineer in
appropriate cases, may make an independent
review of the need for the project from the
perspective of the overall public interest. The
economic benefits of many projects are important
to the local community and contribute to needed
improvements in the local economic base,
affecting such factors as employment, tax
revenues, community cohesion, community
services, and property values... .

There are two reasons that the application of this section for
the determination of whether, as a practical matter, a needs
analysis is required is questionable. First, the regulation
refers specifically to the circumstance in which a “private
enterprise makes an application for a permit” The defendants’
argument that the regulatory history indicates that an
economic needs analysis is inessential when the permit
applicant is a municipal corporation is likewise questionable.
The defendants rely on the interpretive guidance given in
the preamble to 33 C.F.R. Parts 320-330. The relevant section
of the Federal Register states:

|
|

53a
Appendix B

Section 320.4(q): Some commenters believed
that this rule would distort review criteria by
inserting inappropriate economic assumptions and
minimizing environmental criteria. Some
commenters suggested that the Corps revise this
paragraph to include a provision to challenge
an applicant’s economic data and that of
governmental agencies as well. Other commenters
believe that economic factors do not belong in
these regulations since the intent of the Clean
Water Act is: “to restore and maintain the
chemical, physical, and biological integrity of the
nation’s waters”; therefore, any regulation under
the CWA should have, as its primary objective,
provisions which give environmental factors the
greatest weight. They were concerned that this
part may be applied to allow economic benefits
to offset negative environmental effects. Some
commenters, however believed that the Corps
should assume that projects proposed by state and
local governmental interests and private industry
are economically viable and are needed in the
marketplace. They also believed that the Corps
and other governmental agencies should not
engage in detailed economic evaluations.
Economics has been included in the Corps list of
public interest factors since 1970. However, there
has never been a specific policy on economics in
the regulations. The Corps generally accepts an
applicant’s determination that a proposed activity
is needed and will be economically viable, but
makes its own decision on whether a project

54a
Appendix B

should occur in waters of the U.S. The district
engineer may determine that the impacts of a
proposed project on the public interest may
require more than a cursory evaluation of the need
for the project. The depth of the evaluation would
depend on the significance of the impacts and
in unusual circumstances could include an
independent economic analysis. The Corps will
balance the economic need for a project along
with other factors of the public interest.
Accordingly, § 320.4(q) has been modified from
the proposed rule to provide that the district
engineer may make an independent review of the
need for a project from the perspective of the
public interest.

51 Fed.Reg. 41,206, 41,207-08(1986)(emphasis added). The
interpretive guidance in the preamble to 33 C.F.R. §§ 320-
330 does not fully clarify the issue. The portion of the
preamble relied upon by the defendants, that “the Corps
should assume that projects proposed by state and local
governmental interests and private industry are economically
viable and needed in the marketplace” is preceded by the
words “[s]ome commenters . . . believed,” indicating that the
statement relied on by the defendants is merely a comment
made to the Corps by a, perhaps, interested party. In
addressing that comment, the preamble contains no
indication of whether consideration of economic need is
unnecessary for state and municipal permit applicants.

The second reason why section 320.4(q) may not obviate
the requirement of a needs analysis is that it only discusses

55a
Appendix B

the use of an economic needs analysis. However, the needs
analysis described in § 320.4(a)(2)(i) is not limited to
economic need, but is to involve an evaluation of “the extent
of the public and private need” of the project generally. This
includes consideration, where relevant, of such factors as
energy needs, mineral needs, food and fiber production and
community cohesion.'’ The defendants contend that, whether
a needs analysis was required or not, the district engineer
conducted such an analysis. The plaintiff contests this,
asserting that the district engineer failed to determine whether
the need for water could be satisfied from another source
without construction of the structure and pipeline. The Water
Works reasons that because it could have provided the
amount of water required by Bessemer from its own water
supply, no need exists for the project.

The plaintiff relies on the case of State of North Carolina
v. Hudson (Hudson I), 665 F.Supp. 428 (E.D.N.C.1987) to
support its contention that the Corps was required to examine
the extent of Bessemer’s need for water. In Hudson I, the
City of Virginia Beach, Virginia, which had long been
supplied water by the City of Norfolk, found itself in the
position of having grown too large for its water source.
Virginia Beach determined that it would eventually run short
on water if it continued to rely upon the city of Norfolk’s
water supply. Virginia Beach applied for a Department of
Army permit from the Corps, seeking to construct a pipeline
originating at the Pea Hill Creek tributary of Lake Gaston
on the Roanoke River, downstream from a Federal water

17. This is not an exhaustive list, but solely an indicator of the
factors that the Corps may find relevant to consider.

56a
Appendix B

supply at the John H. Kerr reservoir, and extending to
Virginia Beach. The Corps permitted the pipeline and the
case was brought to the district court. The court determined,
among other things, that the Corps had failed to conduct a
proper needs analysis of the pipeline construction:

The Corps cannot accede to Virginia Beach’s
desire to have an autonomous water supply at the
expense of the basin without at least examining
the water supply available from its current source.
No meaningful analysis of the extent of the public
need for the project could otherwise be conducted.
The need for the project depends on how much
water Virginia Beach needs which in turn requires
an analysis of its current supply.

The federal defendants and Virginia Beach
repeatedly argue that as the diversion is only a
a “miniscule” portion of the abundant flow of the
Roanoke River (about 1.2% of average flow) and
the environmental impacts of such a proposal
nearly “nonexistent,” Virginia Beach’s request for
an autonomous water supply must be given
priority in any public interest analysis. Such an
argument, however, ignores the purpose of the
public interest review and the correlative search
for alternative courses of action. Nonsignificant
impact does not equal no impact, and the purpose
of the public interest review is to consider and
balance competing interests, NEPA and non-
NEPA factors, to determine whether the project
is in the interest of the public. It requires the Corps

57a
Appendix B

to search for the least harmful alternative that is
feasible. See River Road Alliance, Inc. v. Corps
of Engineers, 764 F.2d at 452 (7th Cir.1985).

Id. at 446. In Hudson I, the requirement that the Corps show
the precise need for the withdrawals of water stemmed from
the fact that the withdrawals of water would affect, if only
indirectly, the Kerr Reservoir managed by the Corps. The
Corps’ jurisdiction in Hudsen I was, therefore, greater than
the mere construction of the pipeline, extending to water
Storage in and allocation of federally-controlled water
resources under Water Supply Act of 1958, 43 U.S.C. § 390b.
The proposed activity subject to the Corps’ public interest
review reached more than the mere construction of the
pipeline, and had to include a valuation of the need of the
water withdrawal itself.

As the defendants rightly point out, the only activity to
be considered in this case is the construction of the intake
structure and the associated pipeline crossings and its impact
on navigation, etc., not the entire project. The Water Supply
Act of 1958 is not implicated in this case. Therefore, the
Corps was not required to consider water allocation, nor was
it required to consider the economic benefit of an independent
water system as opposed to purchase of water from the Water
Works. See Clean Water Act § 101(g), 33 U.S.C. § 1251(g).
It was only obligated to consider the public and private needs
that the specific work would satisfy, balancing such factors
as the public need for navigable waters and the like against
Bessemer’s need to create a water withdrawal source on the
Black Warrior River.

58a
Appendix B

The district engineer, in evaluating the public and private
need of the project stated:

Public needs and welfare: The [Water Works] is
concerned that the Bessemer system will have a
single water supply source and that a drought or
emergency could jeopardize the flow of water to
Bessemer’s system. [The Water Works] contends
its existing four-sources-of-water-supply system
can better serve the needs of Bessemer customers.
[The Water Works] also contends that permitting
the Bessemer system in water that is “currently
allocated or over allocated” is clearly not in the
public’s best interest.

A.R. at 915.

The decision by the City of Bessemer to seek its
own water supply and the consequences of the
decision (higher prices, and reliability) are the
responsibility of the locally elected officials, not
the Corps.

A.R. at 917. The comment is entirely proper. The need of
the project for the public is adequately reflected in the votes
of the citizens of Bessemer, who will be the ones directly
affected by the City’s choice to build an independent water
system. Their ability to express the fullness of their need by
vote insures that their interests are considered.

Even this statement by the district engineer, however, is
superfluous. Being required only to consider the tangible

59a

Appendix B

needs for the intake and pipeline construction and those
things impacted that are within the scope of the Corps’
review, the district engineer was not required to find that
the public interest in the impacts related to the entire project
were assured by the votes of the citizens of Bessemer, only
that the need for the project outweighed the need for
resources potentially damaged by the project.

The district engineer further considered the weight of
public and private needs of those who did not have voting
power over the Bessemer council.

Although the granting of Bessemer’s requested
permit will provide a new water-withdrawal point
on the Black Warrior River, it should not increase
the demand for water in the short-term. The water
to be withdrawn by Bessemer is currently being
withdrawn by the [Water Works] at other
locations and sold to Bessemer. If [the Water
Works] developed new customers to replace
Bessemer, additional demands on water resources
would result It is estimated that up to 70 percent
of the water withdrawn by Bessemer would be
returned to the Black Warrior River as treated
waste water thus reducing the net withdrawal to
7.5 [million gallons per day].

The proposed Bessemer intake is downstream of
all the [Water Works] intakes and will probably
not impact the [Water Works] withdrawal except
during droughts when the Bankhead Lake level
is low. Future increases in water withdrawals will

SN ne Se ee eae wlan

60a
Appendix B

likely impact navigation depths during droughts,
however, the allocation of water for multi-purpose
use is primarily a State issue. If navigational
servitude is impaired, Federal authority to protect
navigation could preempt the State’s right to
allocate water use.

A.R. at 917. To the extent that the district engineer’s
discussion dealt with the issue of water allocation, it was
superfluous. Otherwise, it was an appropriate consideration
of public and private need with respect to a navigational
servitude on the Black Warrior River.

Finally, the district engineer addressed the impacts of
the construction itself:

In response to the public notice, letters of no
objection or authorization were received from the
U.S. Fish and Wildlife Service, National Marine
Fisheries Service, Alabama Department of
Conservation and Natural Resources, Alabama
Department of Environmental Management,
Alabama State Docks, and the Alabama Historical
Commission. Coordination with these agencies
indicates that the proposed project will not
adversely impact fish and wildlife, wetlands,
threatened and endangered species, properties on
or eligible for the National Register of Historic
Places, navigation, and water quality.

A.R. at 916. Because there were no impacts upon these
resources, there was no requirement that the district engineer

6la
Appendix B

weigh the public and private need for these resources against
the need for the construction itself. The Corps appropriately
addressed the public and private needs of the proposed action.

D. Alternative Sources.

The Water Works next challenges the Corps’ analysis
of alternatives to the proposed action, contending that it was
insufficient. 33 C.F.R. § 320.4(a)(2)(ii) states:

The following ... will be considered in the
evaluation of every application:

Where there are unresolved conflicts as to
resource use, the practicability of using reasonable
alternative locations and methods to accomplish
the objective of the proposed structure or
work. ...

In particular, the Water Works is concerned that the Corps
failed to consider the “no-action” alternative to construction
of the intake facility. The Water Works’ contentions are,
however, directed at the Corps’ initial permitting decision,
not the revised permitting decision upon which the present
action is based. The court will nonetheless address these
concerns as though they were directed at the revised
permitting decision.

Regarding alternatives, the Corps stated:

7. ALTERNATIVES TO THE PROPOSED
ACTION:

62a

Appendix B

a. Birmingham Water Works/No Action
Alternative: This alternative would require the
applicant to continue to purchase water from the
Birmingham Water Works. This alternative would
require no permit action and would eliminate the
minor environmental impacts associated with the
proposed project Since the overall project purpose
is to provide an independent water supply system,
including an independent supply source, this
alternative does not meet the overall project
purpose and is therefore not considered to be
practicable.

b. Groundwater/No Action Alternative: The
subsurface geologic formations in the project area
do not yield groundwater in sufficient quantities
to meet the applicant’s needs. Groundwater is not
a practicable alternative.

c. Warrior River Water Authority: The City of
Bessemer and the Warrior River Authority
attempted to negotiate an agreement which would
provide the applicant with an independent water
supply system without the need for the proposed
water intake structure. A water transmission
pipeline and treatment plant and the
environmental impacts associated with these
activities would remain. Because an agreement
was not reached with the Warrior River Water
Authority, this alternative is not available, thus
not practicable.

63a
Appendix B

A.R. at 910. The Corps reasonably discounted each of these
alternatives. The no-action alternative requiring purchases
of water from the Water Works was appropriately discounted
as not in line with the project’s purposes. The Corps’ section
404 guidelines, which provide rélevant guidance in the
present alternatives analysis state:

An alternative is practicable if it is available and
capable of being done after taking into
consideration cost, existing technology, and
logistics in light of overall prcject purposes.

40 C.F.R. § 230.10(a)(2).'* The alternative of purchasing
water from the Water Works flouts the purpose of Bessemer’s
proposal and is therefore not an available alternative.

Further, whether practicable alternatives to the entire
project (as opposed to the proposed activity to be permitted)
exist is outside of the scope of the district engineer’s analysis.
As section 320.4(a)(2)(ii) states, the Corps is only to consider
practicable alternatives to “the proposed structure or work.”
The Corps was not required to consider obtaining water from
the Water Works as an alternative to the construction of an
entirely independent water supply by Bessemer.

In spite of plaintiff's assertions to the contrary, the Corps
also considered carefully the option of Bessemer’s obtaining
water through use of the Warrior River Water Authority’s

18. The court is employing the section 404 guidelines only as
an aid for clarification, not as a substitute for the alternatives analysis
to be conducted in the public interest review.

64a
Appendix B

intake structure. The record indicates that attempts by
Bessemer at exercising this option floundered, A.R. at 842-
44. The district engineer’s determination that no practicable
alternatives existed was neither arbitrary nor capricious.'”

E. Water Supply.

The plaintiff next contends that the Corps failed to
conduct an adequate analysis based upon water supply and
conservation. In arguing such, the Water Works states:

The Corps’ regulations clarify that in evaluating
a proposed project’s effects on water supply and
conservation, the Corps must consider that:

Water is an essential resource, basic to
human survival, economic growth, and
the natural environment. Water
conservation requires the efficient use
of water resources in all actions which
involve the significant use of water or
that significantly affect the availability
of water for alternative uses including

19. Although the Water Works never raises the issue and it is
therefore not properly before the court for determination, the court
has been unable to find any basis in the record (although it might be
due to an oversight by this court) for the Corps’ determination that
groundwater wells were an insufficient supply source. However, as
this issue was not raised by the plaintiff (and that there is a basis
buried somewhere in the near-thousand-page record), the court
cannot foreclose the defendants’ summary judgment motion(s) on
this ground.

65a
Appendix B

Opportunities to reduce demand and
improve efficiency in order to minimize
new supply requirements. Actions
affecting water quantities are subject to

- Congressional policy as stated in section
101(g) of the Clean Water Act which
provides that the authority of states to
allocate water quantities shall not be
superceded, abrogated, or otherwise
impaired.

Plaintiff's Brief in Response to Motion for Summary
Judgment at 35 (quoting 33 C.F.R. § 320.4(m)). The
defendants argue that the Corps has no authority to consider
the allocation of water among communities, as the plaintiff
suggests. Section 101(g) of the Clean Water Act, 33 U.S.C.
§ 1251(g) (emphasis added), states:

It is the policy of Congress that the authority of
each State to allocate quantities of water within
its jurisdiction shall not be superseded, abrogated
or otherwise impaired by this chapter. It is the
further policy of Congress that nothing in this
chapter shall be construed to supersede or
abrogate rights to quantities of water which have
been established by any State. Federal agencies
shall co-operate with State and local agencies to
develop comprehensive solutions to prevent,
reduce and eliminate pollution in concert with
programs for managing water resources.

The Water Works argues that a construction of section 101(g)
of the Clean Water Act (also known as the Wallop

66a
Appendix B

amendment) that takes away the Corps’ authority to address
the allocation of water resources would render 33 C.F.R.
§ 320.4(m) nugatory. The court does not see this. Section
320.4(m) merely underscores the policy announced in the
Wallop amendment that the Corps not make its permitting
decisions on the basis of water supply, thereby overruling
state law water allocation determinations.

In debate, Senator Wallop, sponsor of the amendment
that became section 101(g), stated:

The requirements of section 402 and 404 [Clean
Water Act] permits may incidentally affect
individual water rights. .. . It is not the purpose
of this amendment to prohibit those incidental
effects. It is the purpose of this amendment to
insure that State allocation systems are not
subverted, and that effects on individual rights,
if any, are prompted by legitimate and necessary
water quality considerations. This amendment is
an attempt to recognize the historic allocation
rights contained in State constitutions. It is
designed to protect historic rights from
mischievous abrogation by those who would use
an act, designed solely to protect water quality
and wetlands, for other purposes. It does not
interfere with the legitimate purposes for which
the act was designed.

3 Leg. Hist. 532 (Senate Debate, Dec. 15, 1977). See also
United States v. Akers, 785 F.2d 814, 820-21 (9th Cir. 1986)
(stating that water allocation is only relevant in the permitting

67a

Appendix B

process if it is clear that federal environmental concerns
conflict with state law water allocation. In such instances,
accommodation between the federal and state interests is to
be obtained through the permitting process. Such is not the
case here.). As is clear from the above, the Wallop
amendment was meant to prevent an entity, such as the Water
Works, that had found itself unable to prevent reallocation
of water resources under state law to use the Corps’
permitting process to block the allocation on the ground that
the allegedly aggrieved entity was somehow a better water
source.

The Water Works further contends that the Tenth Circuit
Court of Appeais, in Riverside Irrigation District v. Andrews,
758 F.2d 508 (10th Cir.1985), held that Congress did not
intend to limit the Corps’ ability to consider water allocation
in the issuance of permits. Instead, argues the plaintiff,
Congress’ intent was merely that the Corps find an
accommodation between state water allocation and federal
interests. The plaintiff's argument is unavailing. Riverside
involved the denial of issuance of a nationwide permit, rather
than an individual permit as is sought by Bessemer. In
Riverside, the Tenth Circuit found that the Corps had the
statutory authority to consider water quantity in the grant of
nationwide permits. Id. at 512. Unlike a individual permitting
analysis, for which no statute exists permitting an
investigation of water quality, in a nationwide permitting
decisions, “[s]ection 101(g), which is only a general policy
statement ‘cannot nullify a clear and specific grant of
jurisdiction, even if the particular grant seems inconsistent
with the broadly stated purpose.’ ” Id. at 513 (citing
Connecticut Light and Power Co. v. Federal Power

68a

Appendix B

Commission, 324 U.S. 515, 527, 65 S.Ct. 749, 754-55, 89
L.Ed. 1150 (1945)).

F. Eccnomic Impacts.

The Water Works argues that the Corps improperly
neglected to conduct an analysis based upon the economic
impacts of the project. The Water Works’ arguments raised
on this issue are largely a rehash of those raised in its
argument that the Corps failed to perform a needs analysis.
The only added wrinkle in the plaintiff's argument that an
economic analysis was necessary is its discussion of Van
Abbema v. Fornell, 807 F.2d 633 (7th Cir.1986). The
arguments related to this case and the Corps failure to conduct
a proper economic analysis relates to the adequacy of the
Corps’ NEPA review, not the public interest review. The
court notes, with respect to the public interest review, that
the Corps is only required to consider the economics of the
proposed action if it is of significant import to the decision
to permit. See 33 C.F.R. § 320.4(a)(3). Economic impact
does not appear to be a significant feature of the decision to
grant or deny the permit because the focus of the study is
not upon the value of the entire Bessemer water project, but
upon the construction of an intake structure and an associated
pipeline.

The Corps did address the economics of building the
entire project, as the Water Works demands, although no
such analysis was required:

The [Water Works] contends that Bessemer’s
proposed water system would cost Bessemer

69a

Appendix B

between 27 percent and 49 percent more annually
than does water currently supplied by the [Water
Works]. [The Water Works] also contends that
the Bessemer system would require that [the
Water Works] reallocate its current water to other
large customers, and place a “demand charge” on
Bessemer if the [Water Works] is to remain as a
back-up supply. [The Water Works] states that
its other customers may have to absorb the loss
of Bessemer revenues through rate increases for
water.

A.R. at 915-16. The district engineer responded to these
concerns:

The decision by the City of Bessemer to seek its
own water supply and the consequences of the
decision (higher prices, and reliability) are the
responsibility of the locally elected officials, not
the Corps. ...

A.R. at 917. The Corps determination was not arbitrary and
Capricious.

G. Water Quality.

The Water Works contends that the Corps failed to
conduct an adequate analysis of the water quality impacts of
the decision to permit the construction of the intake structure
and pipeline. First, states the Water Works, the Alabama
Department of Environmental Management (“ADEM”)
issued a water quality certificate for the project based on its

70a

Appendix B

review of the public notice and “all associated materials
submitted related to the proposed project.” Because the
materials submitted to ADEM did not contain information
relating to the pipeline, argues the Water Works, its water
quality certificate was based on incomplete data and cannot
support the Corps’ determination that water quality would
not be severely adversely affected. Second, argues the
plaintiff, by the time that the permitting decision was made,
the water quality certificate had expired.

The defendants respond that the inadequacies of the
water quality certificate are irrelevant to the Corps’
permitting decision and the concerns of the Water Works
should be taken up with the ADEM. Further, answers the
defendants, the Corps did not confine its consideration of
water quality to the water quality certificate issued by
ADEM.

33 C.F.R. § 320.4(d) sets out the extent of the district
engineer’s review of the impacts of water quality:

Water quality. Applications for permits for
activities which may adversely affect the quality
of waters of the United States will be evaluated
for compliance with applicable effluent
limitations and water quality standards, during the
construction and subsequent operation of the
proposed activity. The evaluation should include
the consideration of both point and non-point
sources of pollution. It should be noted, however,
that the Clean Water Act assigns responsibility
for control of non-point sources of pollution to

EE

Tla

Appendix B

the states. Certification of compliance with
applicable effluent limitations and water quality
standards required under provisions of section 401
of the Clean Water Act will be considered
conclusive with respect to water quality
considerations unless the Regional Administrator,
Environmental Protection Agency (EPA), advises
of other water quality aspects to be taken into
consideration.

The district engineer stated in its section 404 evaluation of
the “Potential Impacts on Physical and Chemical
Characteristics of the Aquatic Ecosystem”:

b. Water, Suspended Particulates and Turbidity:
Most of the dredged/excavated material will be
discharged and confined to upland sites. There
will be a temporary short term, increase in the
water turbidity during dredging and pipeline
construction, which will be temporary and will
subside upon completion of work. Best
management practices to minimize turbidity will
be required, if a permit is issued. See paragraph
1 1.a for other turbidity limiting measures required
by the [ADEM]. Impacts on photosynthesis, si ght-
dependent species, dissolved oxygen, water
chemistry (including nutrients, organic material,
color, odor and taste) and aesthetics should not
be significant because of the small discharge
volume, nature of the discharged material (alluvial
soils, and commercially obtained crushed stone),
limited area of the discharge sites, short duration

Ge

72a
Appendix B

of work and the requirements of the ADEM water
quality certification.

A.R. 950. The district engineer appropriately relied upon
determinations by ADEM and, in addition, fully considered
the effects of the proposed activity on water quality. In
addition, because the water quality conditions imposed in
the reissued permit are based upon non-site-specific good
construction practices, the district engineer’s evaluation of
effects on water quality was not arbitrary and capricious.

H. Threatened and Endangered Species.

With respect to endangered and threatened species, the
district engineer stated:

Endangered and Threatened Species: In response
to the public notice, the U.S. Fish and Wildlife
Service recommended the entire area that could
be impacted in and adjacent to the Black Warrior
River be surveyed for the endangered Flattened
Musk Turtle (Sternotherus depressus).

The survey was conducted by a qualified biologist
and a report was submitted to the Fish and
Wildlife Service. The report concluded that it is
unlikely the site immediately adjacent to the
proposed construction site has a resident
population of Flattened Musk turtles. Although
suitable habitat exists several hundred yards
upstream and downstream, construction impacts
should be very localized and should not impact
those potential resident populations.

73a

Appendix B

Although the pipeline and treatment plant sites
are within the range of several Federally listed
endangered species, due to the limited nature of
the work, the proposed work should not impact
any listed endangered or threatened species or
critical habitat for such species. By letter dated
22 March 1996, Mr. Larry E. Goldman, Field
Supervisor, U.S. Fish and Wildlife Service wrote:
“No significant adverse effects on fish and
wildlife resources are expected to result from this
proposed work. Therefore, we have no objections
to issuance of this permit.”

After written consultation . .. with the U.S. Fish
and Wildlife Service in accordance with 50 CFR
Part 402, it is my determination that the proposed
project (intake, pipeline and treatment plant) will
not likely jeopardize the continued existence of
any listed species of result in the destruction of
[sic] adverse modification of critical habitat.

A.R. at 906-07. The plaintiff argues that the Corps did not
evaluate what impacts operation and maintenance of the
intake structure and pipeline would have on the flattened
musk turtle, an endangered species. The defendants answer
that the Corps properly relied upon a determination by the
U.S. Fish and Wildlife Service that no significant adverse
effects on threatened or endangered species would occur.
Because the U.S. Fish and Wildlife Service is to consider
the impacts both of construction and operation at the site,
the defendants argue, the Corps properly relied upon the
determination of the U.S. Fish and Wildlife Service in
coming to its decision.

74a

Appendix B

33 C.F.R. § 320.4(c) states:

Fish and wildlife. In accordance with the Fish and
Wildlife Coordination Act (paragraph 320.3(e) of
this section) district engineers will consult with
the Regional Director, U.S. Fish and Wildlife
Service, the Regional Director, National Marine
Fisheries Service, and the head of the agency
responsible for fish and wildlife for the state in
which work is to be performed, with a view to
the conservation of wildlife resources by
prevention of their direct and indirect loss and
damage due to the activity proposed in a permit
application. The Army will give fill consideration
to the views of those agencies on fish and wildlife
matters in deciding on the issuance, denial, or
conditioning of individual or general permits.

The Corps consulted with the appropriate agencies and made
its decision in consultation with them. The determination
that little harm would come to the flattened musk turtle was
not arbitrary and capricious.

The plaintiff also contends that the Corps’ analysis of
the effects of construction and maintenance of the intake
structure and pipeline on the mussel population was wrong
because the study from which the Corps’ conclusions were
drawn were taken at a “bad” time of year. The court is not to
remand agency action because the data on which the decision
is made was drawn at an infortuitous time. The court’s review
is only to address whether substantial evidence exists to
support the agency decision, such as is present here. The
decision in this regard was not arbitrary and capricious.

75a

Appendix B

III. SECTION 404(B)(1) GUIDELINES FOR
SPECIFICATION OF DISPOSAL SITES FOR DREDGED
AND FILL MATERIAL.

The plaintiff contends that two errors occurred in the
Corps’ section 404(b)(1) guidelines review. First, claims the
plaintiff, the district engineer failed to consider impacts of
the Corps’ action on human uses of the water and, second,
the district engineer failed to make an appropriate evaluation
of alternatives to the proposed “dredge and fill” action.

A. Impacts on Human Uses.

The plaintiff contends that the Corps failed to adequately
consider the impacts of the “dredge and fill” action on human
uses of the water. The Water Works states that the Corps,
although it was required to consider the impact of the dredge
and fill activity on municipal and private water supplies, did
not properly consider the effects of the addition of a twenty-
five million gallon per day withdrawal site to the Black
Warrior River on the quantity of water available for
consumers. The defendants respond that the Corps was not
required to consider the consequences of the withdrawal of
water from the Black Warrior River under its section
404(b)(1) review, but only the impacts of the dredge and fill
activity itself.

40 C.F.R. § 230.5 states:
In evaluating whether a particular discharge site

may be specified, the permitting authority should
use the Guidelines in the following sequence:

76a

Appendix B

(f) Identify and evaluate any special or
critical characteristics of the candidate
disposal site, and surrounding areas
which might be affected by use of such
site, related to their living communities
or human uses... .

In 40 C.F.R. Pt. 230, Subpt. F, the guidelines specify the
factors relevant to human uses that should be considered by
the Corps. Section 230.50 concerns municipal and private
water supplies:

(a) Municipal and private water supplies consist
of surface water or ground water which is directed
to the intake of a municipal or private water
supply system.

(b) Possible loss of values: Discharges can affect
the quality of water supplies with respect to color,
taste, odor, chemical content and suspended
particulate concentration, in such a way as to
reduce the fitness of the water for consumption.
Water can be rendered unpalatable or unhealthy
by the addition of suspended particulates, viruses
and pathogenic organisms, and dissolved
materials. The expense of removing such
substances before the water is delivered for
consumption can be high. Discharges may also
affect the quantity of water available for municipal
and private water supplies. In addition, certain
commonly used water treatment chemicals have
the potential for combining with some suspended

77a

Appendix B

or dissolved substances from dredged or fill
material to form other products that can have a
toxic effect on consumers.

The Water Works’ contention about water supply is
misplaced. Section 230.50 does not require the Corps to
consider the impacts of withdrawal of water on supply in its
section 404(b)(1) review, only the impacts on water supply
caused by the addition of fill (and particulate matter) into
the water.

B. Practicable Alternatives.

In conducting its 404(b)(1) guidelines analysis, the Corps
is to consider practicable alternatives to the action requiring
the discharge of dredge or fill material:

Although all requirements in § 230.10 must be
met, the compliance evaluation procedures will
vary to reflect the seriousness of the potential for
adverse impacts on the aquatic ecosystems posed
by specific dredged or fill material discharge
activities.

(a) Except as provided under section 404(b)(2),
no discharge of dredged or fill material shal] be
permitted if there is a practicable alternative to
the proposed discharge which would have less
adverse impact on the aquatic ecosystem, so long
as the alternative does not have other Significant
adverse environmental consequences.

78a

Appendix B

(1) For the purpose of this requirement,
practicable alternatives include, but are not
limited to:

(i) Activities which do not involve a
discharge of dredged or fill material into
the waters of the United States or ocean
waters;

(ii) Discharge of dredged or fill
material at other locations in waters of
the United States or ocean waters;

(2) An alternative is practicable if it is available
and capable of being done after taking into
consideration cost, existing technology, and
logistics in light of overall project purposes. If it
is otherwise a practicable alternative, an area not
presently owned by the applicant which could
reasonably be obtained, utilized, expanded or
managed in order to fulfill the basic purpose of
the proposed activity may be considered.

40 C.F.R. § 230.10(a)(1) & (2).

The plaintiff argues that the no-action alternative of
purchasing water from the Water Works was a practicable
alternative that would have a “less adverse impact on the
aquatic ecosystem.” The Water Works claims that because
the purchase of water from it would require no discharge
into the waters of the United States, it is a preferred
alternative that the Corps was required to recognize.

79a
Appendix B

The defendants respond to this that the purchase of water
from the Water Works is not a practicable alternative because
the purchase does not conform to the overall project purpose
of providing Bessemer with an independent water system.
The plaintiff answers the defendants by contending that the
Corps gerrymandered the project purpose such that the
alternative of water purchase from the Water Works was not
practicable

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1096%3A2. Public record. Not legal advice.