sites.law.lsu.edu · web viewthis article examines the proof necessary to sustain a legal challenge...

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Table Of ContentsTable Of Contents..................................................................................................................................................................... 1

INTRODUCTION..................................................................................................................................................................................... 6

Procedural Steps to Filing a Claim in Court...........................................................................................................................6

Documents that must be created:..............................................................................................................................................................6

Procedural Steps to Filing a Civil Court Injunction............................................................................................................................6

FACTUAL CIRCUMSTANCES..............................................................................................................................................................7

Doubt and the Values of an Ignorance-Based World View for Restoration: Coastal Louisiana Wetlands by: R. Eugene Turner........................................................................................................................................................................ 7

Abstract................................................................................................................................................................................................................. 7

Introduction........................................................................................................................................................................................................ 7

Two Different World Views......................................................................................................................................................................... 8

Louisiana Coastal Land Formation...........................................................................................................................................................9

Land Loss, Human Interventions, and the IBWV.............................................................................................................................11

Agricultural Impoundments......................................................................................................................................................................12

Dredging............................................................................................................................................................................................................ 13

Wetland Management..................................................................................................................................................................................13

Restoring Louisiana’s Wetlands in a Field of Ignorance...............................................................................................................14

River Diversions............................................................................................................................................................................................. 15

Salinity................................................................................................................................................................................................................ 15

Sediments.......................................................................................................................................................................................................... 16

Nutrients............................................................................................................................................................................................................ 17

The Acceptance of Either the KBWV or IBWV has Meaningful Consequences...................................................................17

Adaptive Management.................................................................................................................................................................................19

Complex or Complicated.............................................................................................................................................................................19

Models................................................................................................................................................................................................................. 19

Some Simple Goals........................................................................................................................................................................................ 20

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NEPA......................................................................................................................................................................................................... 20

NEPA PROCEDURAL GIUDE AND LEGISLATION..............................................................................................................20

Washington University Journal of Law and Policy, 2007, NEPA'S ZONE OF INTERESTS by: Kenley S. Maddux.20

I. Background: NEPA, NEPA Actions, and Standing to Sue Under NEPA..........................................................................21A. NEPA's Environmental Impact Statement Requirement..............................................................................................21B. Private Actions to Enforce NEPA Compliance...................................................................................................................21C. Prudential Standing to File a NEPA Complaint.................................................................................................................22

II. The Circuit Split over ‘Economic Interests' and NEPA........................................................................................................22A. The Eighth Circuit: Sometimes, NEPA Protects Purely Economic Interests........................................................22B. The Ninth Circuit: A Purely Economic Injury is not Within NEPA's Zone of Interests....................................23

III. What Is NEPA's Zone of Interest?...............................................................................................................................................23A. Bennett v. Spear and NEPA........................................................................................................................................................23B. Congressional Intent: The Purpose(s) of NEPA................................................................................................................24C. Public Policy: Who Should Have Standing?.........................................................................................................................25

IV. Conclusion.............................................................................................................................................................................................26

NEPA SAMPLE DOCUMENTS.....................................................................................................................................................26

Sample Petition written by Grant Freeman.......................................................................................................................................26

NEPA DISCOVERY AIDS...............................................................................................................................................................29

EIS.............................................................................................................................................................................................................. 29

EIS LEGISLATION........................................................................................................................................................................... 29

State Statutes................................................................................................................................................................................................... 29

Federal Statutes.............................................................................................................................................................................................. 31

EIS PROCEDURAL GIUDE............................................................................................................................................................31

Federal Case law and secondary sources............................................................................................................................................31

Necessity and Sufficiency of Environmental Impact Statements Under the National Environmental Policy Act by Ray Vaughan, J.D.*.......................................................................................................................................................................31

Topic of Article:....................................................................................................................................................................................32I. Background........................................................................................................................................................................................ 32

§ 1. Introduction; scope of article...........................................................................................................................................32§ 2. General requirements of the national environmental policy act (NEPA).....................................................33§ 4. Decision whether to issue an EIS....................................................................................................................................35§ 5.5. Segregation of projects; cumulative impacts.........................................................................................................37§ 6. Exploration of alternatives and impacts.....................................................................................................................37§ 7. Public notice, comment, and hearing............................................................................................................................38§ 8. Finalization of EIS..................................................................................................................................................................39§ 9. Supplemental EIS...................................................................................................................................................................39§ 10. Judicial review of agency decisions under NEPA..................................................................................................40§ 10.5. Standard of review.........................................................................................................................................................41§ 11. Proving and challenging EIS sufficiency, generally..............................................................................................42§ 11.5. Applying the hard look standard..............................................................................................................................42

II. Elements of Proof...........................................................................................................................................................................43§ 14. Proof as to necessity of EIS; Checklist.......................................................................................................................43§ 15. Proof as to sufficiency of EIS; Checklist....................................................................................................................44

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Memorandum Asking for Preliminary Injunction and Commencement of Supplemental EIS Studies by Eva Conner................................................................................................................................................................................................................ 45

EIS SAMPLE DOCUMENTS..........................................................................................................................................................46

EIS DISCOVERY AIDS.................................................................................................................................................................... 46

Necessity and Sufficiency of Environmental Impact Statements Under the National Environmental Policy Act written by Ray Vaughan, J.D......................................................................................................................................................................46

Interrogatories from plaintiff environmental group to federal agency, regarding decision not to prepare EIS.......................................................................................................................................................................................................................... 46Interrogatories from plaintiff environmental group to federal agency, regarding sufficiency of EIS.................50

ESA............................................................................................................................................................................................................. 52

ESA PROCEDURAL GIUDE AND LEGISLATION.................................................................................................................52

Species Protection: Critical Legal Issues, Cosponsored by the Environmental Law Institute with the, Cooperation of the Endangered Species Committee of the ABA Section of Environment, Energy, and Resources, CITIZEN SUITS by: Eric R. Glitzenstein, Meyer Glitzenstein & Crystal, Washington, D.C., Copyright (c) 2009 The American Law Institute; Eric R. Glitzenstein.....................................................................................................................................53

Introduction................................................................................................................................................................................................ 53Current State of the Law........................................................................................................................................................................53

Standing...................................................................................................................................................................................................53Other Jurisdictional Issues..............................................................................................................................................................55ESA versus APA Claims Following Bennett v. Spear............................................................................................................56Standard of Review............................................................................................................................................................................ 59Venue/Transfer Issues.....................................................................................................................................................................6060-Day Notice Requirement...........................................................................................................................................................61Intervention........................................................................................................................................................................................... 62Relief......................................................................................................................................................................................................... 62Emerging Issues and Future Directions....................................................................................................................................63Conclusion.............................................................................................................................................................................................. 64

ESA SAMPLE DOCUMENTS........................................................................................................................................................64

ESA DISCOVERY AIDS...................................................................................................................................................................64

CWA/CIRCLA........................................................................................................................................................................................ 64

CWA/CIRCLA LEGISLATION..................................................................................................................................................... 64

Rough breakdown of CERCLA liability as pertains to the Canaervon and Davis Pond Diversions By: Kellyn Elmer and Jennifer Mayberry...................................................................................................................................................................64

CWA and CERCLA (release + hazardous substance).................................................................................................................65List of CWA toxic substances: 40 C.F.R. § 401.15..................................................................................................................65CERCLA liability...................................................................................................................................................................................68

Issues:................................................................................................................................................................................................. 68Rules:...................................................................................................................................................................................................68Facts:................................................................................................................................................................................................... 68Waters Transfer Rule/Unitary Waters theory..................................................................................................................69

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CWA Memo: navigable waterways by: Eva Conner........................................................................................................................69

CWA/CIRCLA PROCEDURAL GIUDE......................................................................................................................................71

CITIZEN SUITS AND DEFENSES AGAINST THEM by: James R. May, Widener University, School of Law, Wilmington, Delaware, Copyright (c) 2011 The American Law Institute; James R. May...............................................71

I. Introduction............................................................................................................................................................................................ 71I. Clean Water Act..................................................................................................................................................................................... 72

A. Procedural......................................................................................................................................................................................... 731. Notice............................................................................................................................................................................................. 732. Standing........................................................................................................................................................................................ 743. Preclusion and Diligent Prosecution................................................................................................................................764. Standing & Mootness...............................................................................................................................................................785. Sovereign Immunity................................................................................................................................................................ 786. Attorney Fees..............................................................................................................................................................................78

B. Substantive....................................................................................................................................................................................... 801. TMDL/Listing............................................................................................................................................................................. 802. Permits/Jurisdiction................................................................................................................................................................803. Post-Judgment Issues..............................................................................................................................................................81

C. Hybrids: Clean Water Act and Other Environmental Statutes...................................................................................811. Procedural....................................................................................................................................................................................812. Substantive.................................................................................................................................................................................. 82

II. Clean Air Act.......................................................................................................................................................................................... 82A. Procedural......................................................................................................................................................................................... 83B. Substantive....................................................................................................................................................................................... 83

III. Comprehensive Environmental Response, Compensation and Liability Act..........................................................85A. Procedural......................................................................................................................................................................................... 85

1. Notice............................................................................................................................................................................................. 852. Jurisdiction...................................................................................................................................................................................853. Standing........................................................................................................................................................................................ 854. Attorney Fees..............................................................................................................................................................................85

B. Substantive....................................................................................................................................................................................... 86IV. Resource Conservation and Recovery Act..............................................................................................................................86

A. Procedural......................................................................................................................................................................................... 861. Notice............................................................................................................................................................................................. 862. Jurisdiction...................................................................................................................................................................................873. Complaint.....................................................................................................................................................................................874. Standing........................................................................................................................................................................................ 885. Abstention.................................................................................................................................................................................... 88

B. Substantive....................................................................................................................................................................................... 881. Liability/Indemnification......................................................................................................................................................882. Preliminary Injunction...........................................................................................................................................................893. Enforcement................................................................................................................................................................................894. “Imminent and Substantial Endangerment”.................................................................................................................89

V. Endangered Species Act...................................................................................................................................................................90A. Procedural Issues...........................................................................................................................................................................90

1. Notice............................................................................................................................................................................................. 902. Jurisdiction...................................................................................................................................................................................913. Standing........................................................................................................................................................................................ 91

B. Substantive Issues......................................................................................................................................................................... 911. Section 4........................................................................................................................................................................................912. Section 7........................................................................................................................................................................................913. Sections 9 and 10......................................................................................................................................................................92

Conclusion................................................................................................................................................................................................... 92STATUTES W/ENV. CITIZEN SUITS INCLUDE........................................................................................................................93CITIZEN SUIT PURPOSES.................................................................................................................................................................93ANATOMY OF A CITIZEN SUIT......................................................................................................................................................93

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CWA/CERCLA SAMPLE DOCUMENTS...................................................................................................................................93

Environmental Law Forms Guide, Database updated April 2013, by: Richard H. Mays.....................................93

Part III. Clean Water Act (CWA) Forms...........................................................................................................................................93Chapter 15. Complaints Under The Clean Water Act..........................................................................................................93

§ 15:18. Private party complaint against the government for wetlands destruction......................................94

CWA/CIRCLA DISCOVERY AIDS............................................................................................................................................108

LDEQ Permitting...............................................................................................................................................................................108

Louisiana Practice Series - Louisiana Environmental Compliance........................................................................108

Public Trust - IT Analysis.........................................................................................................................................................................108

WHAT HAS BEEN DONE SO FAR............................................................................................................................................... 111

Permitting....................................................................................................................................................................................... 111

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INTRODUCTION

Procedural Steps to Filing a Claim in Court

1. Prepare a Statement of Claima. To start your action, you must have your statement of claim issued by the courtb. Contains a concise statement of material facts that the plaintiff is relying uponc. The plaintiff serves the statement of claim on all defendants and files an affidavit of

service with the court2. Defendant prepares a Statement of Defense

a. The defendant prepares a statement of defense and serves it on the plaintiff, and files a copy with the court together with proof of service

3. Agree on a Discovery Plana. Both parties must deliver to all other parties an affidavit that lists all relevant

documents in the party's power, possession or control. Copies of the documents must be made available at a party's request.

b. A party may serve a notice of examination, Form 34A, on an opposing party, indicating a time and place where the party must attend to answer questions under oath.

c. You must serve a sworn affidavit of documents by the date agreed upon in your discovery plan

4. Serving and Filing the trial recorda. A trial record includes a copy of all pleadings and orders relating to the trial

5. Pre-trial Conferencea. Attend a pre-trial conference before a judge or court officer to attempt to settle the case

or narrow the issues6. Trial

Documents that must be created:

1. Complaint2. Discovery

a. Affidavits, testimonies, and interrogatories from experts, environments groups and federal agencies

3. Pleadings

Procedural Steps to Filing a Civil Court Injunction

1. Draft a Petitiona. Attach an affidavit that sets forth the specific allegations as to why you are entitled to a

civil court injunction.b. Request the issuance of a temporary or emergency injunction pending a hearing on a

permanent injunction. i. Include facts sufficient to establish that absent an immediate temporary or

emergency injunction, you will suffer irreparable harm. c. Request a permanent injunction as well.

2. File with the clerk of the court.

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a. Request the clerk of the court to serve the petition on the opposing party.b. Obtain a hearing date from the clerk of the court. Notify the opposing party of the

hearing date and time.3. At the hearing, present evidence and arguments supporting your request for a civil court

injunction.

FACTUAL CIRCUMSTANCES

Doubt and the Values of an Ignorance-Based World View for Restoration: Coastal Louisiana Wetlands by: R. Eugene Turner

Received: 7 June 2009 / Revised: 26 July 2009 / Accepted: 6 August 2009 / Published online: 25 August 2009 # Coastal and Estuarine Research Federation 2009

Abstract

Embracing doubt, a signature strength of science, is an essential core component of an ignorance-based-world view (IBWV) that assumes the areas of certainty are small relative to the large field of ignorance. The contrasting knowledge-based world view (KBWV) assumes that small and mostly insignificant knowledge gaps exist. When the KBWV is combined with a sense of urgency to “do something,” then the intellectual landscape is flattened, the introduction of new ideas is impeded, monitoring and adaptive management is marginalized, risky behaviors continue, and social learning is restricted. The history of three coastal Louisiana land-uses (agricultural impoundment, marsh management, and dredging) is one of ignored and untested assumptions that might have provided a cause- and-effect means to avoid catastrophic land losses—the result of a KBWV that remains the primary perspective of Louisiana’s current coastal restoration and management program that includes river diversions and a proposed expansion of hurricane protection levees into wetlands. I argue from the pathology of results that willful adoption of an IBWV in the administration, management, and implementation of restoration will reduce the scale and diversity of significant missteps in the future, improve project efficiencies, and cause fewer unintended consequences that cannot (again) be retracted.

“Failure to suspend and test assumptions is the most surefire way to guarantee patterns of interaction that simply reinforce positions from the past. In this way, untested assumptions come to govern organizational actions, just as they undermine genuine attempts at collaboration.” Senge et al. 2008, p. 257.

R. E. Turner (*)Coastal Ecology Institute,and Department of Oceanography and Coastal Sciences, Louisiana State University,Baton Rouge,LA 70803, USAe-mail: [email protected]

Introduction

A restoration scientist, manager, or citizen asks questions, perhaps in the form of a hypothesis, to reveal ignorance in a constructive way that answers might usefully address. When questions are asked with humility, then there is a healthy respect for ignorance and an acknowledgment of the possibility for incomplete knowledge or understanding. The values of embracing doubt with respect are, perhaps, easier seen in the hindsight than with foresight, and are applicable in ways that range from the personal to scientific. Here are some recent examples: (1) the world- wide financial collapse in 2008 continues to expose significant incorrect or unexamined assumptions about managing economic issues affecting billions of people; (2) the failure of the New Orleans flood protection levees in 2005 (for the sixth time in the last 100 years)—levees that were built and maintained under the supervision of professional engineers—revealed “dysfunctional relationships between federal and more local government” (p. xxv, Seed et al. 2006) that successfully resisted critical inquiry until after the catastrophe (Seed et al. 2006; United States

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House of Representatives 2006; Turner 2007); and (3) the size of cod stocks on Georges Bank were misjudged by the authoritative fisheries scientists, and the fisheries declined precipitously, as institutional pressures for conformity among scientists and management resulted in models applied that misrepresented reality (Finlayson 1994).

A strength of science is not that practicing scientists are persuadably better human beings than others, but that the methods of science may subject theories, hypotheses, and facts to falsifiable tests. The practice of science, in other words, formally embraces doubt, although the practitioners are not immune to a tendency to avoid doubt. The history of science, in fact, is replete with examples of scientists paying too little attention to doubt, which hinders new discoveries (Barber 1961). Kuhn warned against irrationally constraining ignorance into comfortably defined concepts (“Scientific research is a strenuous and devoted attempt to force nature into the conceptual boxes supplied by professional education” (Kuhn 1987)), and these concepts became the baseline of the “paradigms shifts” he wrote about.

What follows is a comparison of two different perspectives about how well doubt and ignorance are embraced by restoration science and management, and an analysis of how the adoption of each perspective affects project administration and results. I address how one of these perspectives has significance to coastal wetland restoration because of its potential utility in making progress on socially relevant problem-solving and to avoid the introduction of unintended consequences. I use examples from Louisiana because Louisiana has nontrivial coastal wetland losses receiving significant attention from individuals and from private and governmental entities and because billions of dollars are being spent in the process. There is no guarantee that additional funds are forthcoming or even that there will be a net gain in coastal wetlands after expending much time, energy, and money. I start with a description of coastal land formation to understand the bio geophysical context of Louisiana’s coastal wetland growth and maintenance. I then review the losses in the last 100 years and some reasons why that happened, discuss the financial commitments for restoration, and close with some recommendations to reduce the number and kinds of failures and to improve outcomes.

Two Different World Views

We can engage in restoration with a primary perspective that emphasizes either a knowledge-based world view (KBWV) or an ignorance-based world view (IBWV; Vitek and Jackson 2008). The meaning of “world view” here is the central outlook or perspective characterizing restoration science. The KBWV assumes that we know most of what is needed to be known, that knowledge is finite, and anticipates that finality can be achieved. Bacon and Descartes, for example, embraced a KBWV through reductionism and assumed that the expansion of knowledge would create a global Garden of Eden by virtue of fully informed technological advances applied to an unruly Nature. The KBWV is not so worried about what is not known but how to apply what is known in the right way. The IBWV, in contrast, emphasizes what we do not know, assumes that it is a large proportion of what might be known, and that there is much that will not be known. Further, the IBWV anticipates that the expansion of knowledge in multiple areas of inquiry introduces additional complexity, if only because of the unseen and unexplored interactions between areas, with the effect that ignorance increases exponentially. As the saying goes, “the more we learn, the more we learn that we understand less and less.” The IBWV, therefore, actively seeks new knowledge. Wendell Berry (1982) reminds us that “Acting on the basis of ignorance, paradoxically, requires one to know things, remember things for instance, that failure is possible, that error is possible, that second chances are desirable.” A strong recommendation, therefore, is to not risk everything on one restoration strategy.

My experience and that of others working at the interface of science and management is that the IBWV often has a trivial stature compared to the KBWV despite many written and oral statements of intentions saying otherwise. Monitoring and adaptive management are signature activities of a IBWV, for example, and are frequently missing from restoration programs or superficially folded into the feedback loops of adaptive management (Ralph and Poole 2003; Bernhardt et al. 2005). Adaptive management, however, is only a part of the IBWV. The IBWV permeates not only the practice of science and the management of restoration, but also the administration of both. The IBWV and KBWV perspectives have

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important differences that ripple through the administration of science to the practitioner. The adoption of IBWV, for example, may increase tensions between inquiry and conclusion. If risks are perceived to be small, then the administration will emphasize project implementation while simultaneously reducing efforts that might question an already agreed- upon set of procedures and outcomes. If the outcomes are predetermined, then questions about the foundational assumptions are viewed as interruptions in the efficient flow of work going from project design to implementation, management becomes confused with administration, and communication between pools of expertise is reduced. As a result, a “command and control” and rigid “stove-pipe” hierarchy is created and enforced, and the turnover of personnel is done with a view to continue the status quo. Developing an “exit strategy” is not seen as being necessary because it is assumed that the project will succeed. Successful administration of the IBWV, in comparison, does not substitute administrative structure for chaos, but does allow for a “container” for new information and approaches, and alternative views are allowed or encouraged to enter the decision-making stream at all stages of the project. In addition, the very size of projects influences how well new or previously ignored information enters the social structure. Compared to small projects, for example, larger projects have more diverse and complex administrative and managerial challenges, which have the effect of raising social maintenance costs and lowering acceptance of new ideas (Peterson 1993).

The example used to examine these two views is the recent history of the Louisiana coastal zone. A brief background about the formation of the coast is given to frame a discussion about wetland-loss rates and restoration (with an emphasis on river diversions), which is succeeded by arguments making the case that embracing the IBWV has significant and positive consequences for restoration.

Louisiana Coastal Land Formation

The present-day Louisiana coastal zone (Fig. 1) began to form when the rise in sea level slowed about 7,000 years ago (Stanley and Warne 1994). The main course of the lower Mississippi River shifted six times as it found a shorter route to the sea (Fisk et al. 1954). This process of individual delta growth and abandonment continued until the modern bird-foot (Balize) delta formed about 200 years ago. The 17,417

km2 of coastal lands present in 1955 (Baumann and Turner 1990) accumulated at an average long-term

rate of about 2.5 km2 year−1 for the whole coast. The Atchafalaya River (comprised mostly of diverted Mississippi River flow near St. Francisville, LA, and the Red River) discharges about one third of the Mississippi River into the Atachafalaya Bay near Morgan City. The land gain in the new Atchafalaya delta

and Wax Lake outlet from 1950 to 1994 was about 4.2 km2 year−1 (Roberts et al. 2003), but about half was lost from 2004 to 2006 (Barras 2006). The Chenier Plain in western Louisiana has about 21% of the coastal wetlands in Louisiana. The southern half of these western LA wetlands are mostly on mineral sediments accumulating from the westward drift of the entrained abandoned deltaic sediments and storm/hurricane overwash. A series of separate shore-parallel to shore- oblique ridges of shell and sand is separated by progradational mudflats, wetlands, or open water.

The seaward progression of the deltaic plain occurred in stages to form sub-delta sediments that may be up to 14 m deep and overlay previously deposited deltaic inorganic sediments. The complete set of delta sequences may be 150 m thick. The delta mud is overlain by silts and sands and topped by deltaic sediments, including organic deposits (Fisk et al. 1954). When the water is shallow enough, however, emergent wetland plants become rooted in the inorganic sediments and the quantity and quality of soils accumulating changes dramatically. This is an abrupt ecological change that introduces a new way for soils to accumulate. Wetlands between distributary levees have an organic-rich soil (Frazier 1967), whose inorganic volume is about 5% in salt wetlands and nearly zero in freshwater wetlands. The vertical accretion of wetland soils in these interdistributary wetlands is almost entirely dependent on the organic accumulation—a balance of belowground production and organic decomposition (Turner et al. 2001, 2007a). The accumulating fine-grained and highly organic sediments consolidate, compact, and oxidize, resulting in soil subsidence. The highest subsidence rates occur in the upper 2 m of the wetland soils that have an age of <1,000 years (Turner 2004; Turner et al. 2006b). Today’s living plant has roots that

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penetrate up to 1 m belowground and, therefore, a minimal biochemical presence in soils originally formed >500 years BP.

Fig. 1 The Louisiana coastal zone. A The deltaic plain. MR Mississippi River; BM, DF, and TP are former agricultural impoundments (Big Mar, Delta Farms, and The Pen, respectively). DP Davis Pond diversion. The Caernarvon diversion enters into BM from the north. B A natural channel and a dredged canal; the canal is about 25–30 m wide. A spoil bank (SB) encloses a canal. C The Golden Meadow oilfield (GMOF) west of the flood protection levee for the city of Golden Meadow. D An oil drilling rig at work in Terrebonne Parish

The Mississippi and Atchafalaya river deltas have soils on the advancing edge that is mostly composed of inorganic, not organic, sediment. The early maps of European explorers (pre-1850s) show a Mississippi River delta mouth that was a multichannel network of thin overbank levees and an area of

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wetlands approximately the width of the main channel. European style inhabitation in the watershed in the early 1800s was accompanied by enhanced sediment delivery to the coastal zone as trees were cut down and soils plowed (Turner and Rabalais 2003). The wetlands at the delta mouth, growing on highly inorganic soils, began to expand shortly thereafter. Dam construction of the post-1950s trapped sediments thereby reducing sediment delivery downstream by half (Meade and Parker 1984), after which the rivermouth wetlands receded.

Explosive breaks in flood protection levees, called a crevasse, are recognized by geomorphologists as being a different kind of overbank flooding than what occurred before flood protection levees existed. Before manmade levees, the sediment overflowing its banks accumulated near the river to form a levee parallel to the river channel that was not much wider than the river (Frazier 1967). The explosive release of floodwater through flood protection levees sent sediments further away from the river levee and sometimes formed a mini-delta (splay). Kesel (1988) estimated that the amount flowing overbank in the

unconfined river was 4.8×106 and 1.8×106 mt year−1 through the flood protection levees (equal to 2.3% and 0.86% of the river’s sediments, respectively). While this is a large amount of sediment, the sediments introduced to wetlands during hurricanes may be as much as five times larger than from overbank sources before flood protection levees on the main channel and equal to about 12% of the river’s annual sediment load. Further, hurricanes may deliver 225 times more inorganic sediment than the largest river diversion (Caernarvon) and 14 times more than from crevasses through the constructed river levees. These results may seem surprising if one thinks that the wetland soils are primarily dependent on mineral sediment supplied directly from the river by way of overbank flooding. Consider, however, that the wetlands in the Chenier Plain, the Terrebonne estuary, around Lake Pontchartrain, and in eastern Breton Sound have survived for thousands of years even though they are far from the Mississippi River. Further, the majority of coastal wetland soils are comprised of organic matter, not inorganic matter, and the inorganic soils are primarily found at the birds foot delta and within a few kilometers of land (Chabreck 1972).

Land Loss, Human Interventions, and the IBWV

The restoration on this coast is about the land lost since the 1930s, most of which was wetlands. Maps made before the 1930s delineated land between navigable waterways but did not show all the details about ponds and streams. Access to reliable coast-wide aerial photos, which began in the 1930s, meant that it was possible to reliably measure changes in land cover. The earliest aerial photographs showed vast expanses of wetlands (equal to 85% of the total land area; Baumann and Turner 1990) and an interwoven

network of natural channels. The 3,954 km2 of land converting to open water between the 1930s and 1990 equaled the area of Rhode Island and was about 18% of the coastal land present in the 1930s (Britsch and Dunbar 1993). Thirty- percent of this land loss occurred in the Chenier Plain. The coastwide land-loss rate reached a peak in the 1960s and was on a trajectory to be near zero in the last 10 years (Fig. 2a), until the

2005 Hurricanes Katrina and Rita resulted in about 513 km2 of land converting to open water (Barras 2006). Some of this new open water area will convert back to wetland without intervention as it has before (Chabrek and Palmisano 1973). It would take more than 200 years at the 7,000-year net growth rate of 2.5

km2 year−1, however, to compensate for this recent loss from hurricanes. Because hurricanes with a storm surge the size of hurricanes Katrina and Rita occur every 7.8 years (Turner et al. 2006a), it makes little sense to conclude that this coast could sustain a similar amount of wetland loss from hurricanes over the last 7,000 years. The 2005 land losses, in other words, were likely to be the result of an especially noteworthy synergism of effects involving a post-1900 land use change. Sea level rise is an unlikely synergistic agent, because there is no evidence (yet) that sea level rise has accelerated over the last 100 years (Turner 1991).

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Fig. 2 Relationships between land loss and canal density in the Louisiana coastal zone. A The area of land loss for six intervals (adapted from Turner et al. 2007a). B The area of new canal added for six intervals (adapted from Turner et al. 2007a). C The relationship between direct land loss and indirect land loss (primarily canal density) in the Barataria watershed for eight 15-ft quadrangle maps were analyzed by Britsch and Dunbar (1993). No data were excluded. Four different mapping intervals are compared: 1930s to 1950s, 1930s to 1950s, 1930s to 1974, and 1930s to 1990. Top Area of direct land loss vs. area of indirect land loss (ha). A linear regression of the data is shown (p < 0.01 in all cases). D Land-loss rates from 1955/1956 to 1978 in 7.5-ft quadrangle maps selected because they include the geologically defined St. Bernard delta complex, which underlies part of the modern day Barataria watershed (adapted from Scaife et al. 1983). A simple linear regression of the data is shown. The intercept is the same as what would be expected based on the lifetime of the St. Bernard delta (ca. 3,000 years old). E The percent nondredge open water and percent canal area versus year for salt marsh sites in Barataria estuary (adapted from Bass and Turner 1997)

Three significant human interventions in the 1900s modified Louisiana wetlands in significant ways that might be done differently with the benefit of hindsight: agricultural impoundments, wetland management, and dredging.

Agricultural Impoundments

Wetlands were converted to agricultural fields throughout coastal North America as a continuation of land reclama- tions going back to Roman occupation of coastal Europe, if not earlier (Allen and Fulford 1992). Agricultural impoundments extended across the Louisiana coastal zone a century ago (Okey 1918)

and amounted to about 452 km2 by 1915 (Turner and Streever 2002). This expansion of agriculture into wetlands did not anticipate that acid sulfate soils would develop or that levee failures would lead to catastrophic collapse of the enterprise (Harrison and Kollmorgen 1947). The northern half of the Delta Farms impoundment failed sometime after 1915, when Okey (1918) documented its existence, because

aerial photographs taken in 1930 show it as a wetland. The remaining 28 km2 Delta Farms impoundment

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collapsed in the 1960s when its levees failed during a storm, stranding equipment, and drowning livestock. It is now mostly open water. The open water of the Big Mar agricultural impoundment on the east bank of the Mississippi River receives the discharge from the Caernarvon diversion. All of the other former impoundments are either open water or are within an urban zone protected by flood protection levees (Turner and Streever2002).

Dredging

Dredging navigation routes through Louisiana’s coastal wetlands began at least 200 years ago (Davis 1973), but it was the canals dredged for oil and gas recovery efforts that began in the 1930s and that peaked in the 1960s (Fig. 2b) that had demonstrable and coastwide influences on wetlands. The direct

impact of dredging on wetlands amounted to 1,017 km2 of canals in 1990 (Britsch and Dunbar 1993), and an equal area of spoil banks stacked on the adjacent wetlands (Baumann and Turner 1990). There is a much larger indirect impact from canals and the dredged spoil deposits that is demonstrable at several temporal and spatial scales. For example, (1) land-loss rates in the deltaic plain, in similar geological substrates, are directly related to dredging (Fig. 2c); (2) the amount of land loss where dredging is low is near zero (Fig. 2c, d); and (3) the land- loss rates accelerated and slowed when dredging rose and slowed in the Barataria basin (Fig. 2e). If other factors were important influences on the empirically defined relationships between dredging and land loss, then the intercept of a linear regression between them would be zero or the data distribution would be statistically insignificant, e.g., noise. There are plausible cause-and-effect explanations for these relationships that are related to the loss of the accumulated organic matter and plant stress accompanying an altered hydrology (Swenson and Turner 1987; Turner 1997; 2004). The rise and fall in dredging is coincidental with the rise and fall of wetland loss (Fig. 2a, b), but sea level rise, soil subsidence, and the concentration of suspended sediment in the river have remained about the same from the 1960s to present (Turner 1991; Turner and Rabalais 2003). These results support the conclusion that the dominant cause of wetland loss on this coast is the result of dredging authorized in permits issued by State and Federal agencies. One would hope that the permitting process today would be more restrictive to prevent the foreseeable consequences of dredging these canals and creating spoil banks. But the damage was largely done by the time critical analyses were completed. Even today, there is no coastwide restoration program that specifically targets the direct and indirect impacts of canals and spoil banks on land loss. There is, despite several attempts to acquire it from the appropriate State agency, no publicly available annual estimate of the area of canals dredged from 2000 to 2007.

Wetland Management

Since the late 1930s, the hydrology of at least 3,440 km2 of Louisiana’s coastal wetlands and open waters were managed through the use of pumps, weirs, flap gates, and culverts inserted into manmade levees (Boyer 1997). These structures are expensive to build and maintain. A meta- analysis of the literature, consisting of mostly unpublished graduate theses, was conducted to determine if weirs controlled salinity, enhanced vegetation cover, or improved wildlife habitat in ways that were consistent with the goals of marsh management. The conclusions were that, compared to the reference marshes, (1) weirs had little or no influence on salinity, (2) emergent plant cover was sometimes reduced behind the weirs, and (3) soil conditions suitable for maintaining wetlands were more stressful to the plants (Turner et al. 1989). The density of some wildlife species was similar or lower behind the weirs. The population size of some migratory waterfowl, however, increased behind the weirs because of the increased amounts of submerged macrophytes. Similarly, Boyer (1997) noted that there was no reduction in land-loss rates as a result of marsh management. In effect, the decades- long implementation of marsh management, done for a variety of reasons besides the mitigation of land loss, was found to be causally related to increased land loss or was of no benefit. There were no new marsh management plans permitted in the last 5 years, and only wildlife agencies have active and large-scale maintenance of water control structures.

These three generic examples of coastwide land-use practices described above assumed the KBWV,

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not the IBWV. The area of the three interventions (exclusive of indirect impacts) ranges from 11% to 87% of the land area lost from the 1930s to 1990 (Fig. 3). These three large-scale examples were undertaken in support of goals whose supportive assumptions had not been tested before the wetland manipulation was complete and were not monitored before most were built, if at all. All three failed to conserve wetlands, and the open water created has not been restored to emergent wetland vegetation.

Restoring Louisiana’s Wetlands in a Field of Ignorance

The largest present-day intervention in these wetlands is an effort to reduce land-loss rates or to restore wetlands. There are a variety of funding instruments, but the largest is the Coastal Wetland Protection and Restoration Act program (CWPPRA) that was initiated in 1991. The total amount for CWPPRA projects that were authorized, spent, or in design phase from 1991 to 2006 is $1.77 billion (US Government Accountability Office 2007). The total area of the estimated “benefits” is about three times the area of actual land created or restored. The CWPPRA, for example, formerly issued estimates of the land created + restored of the total area benefited that amounted to 35% from 1991 to 1995 (Anon 1995). If we assume that: (1) all 2007 projects in the design and engineering phase will be successful and (2) the percent of created + restored area of the total project area is 35%, then the average cost of the area

restored and created after 20 years of project implementation will be $179,087 ha−1 (2007 dollars). At this rate of expenditures, it would take about $71 billion to restore all of the land lost from the 1930s to 1990. In comparison, this amount of money would fund the Department of Homeland Security, the US Department of Agriculture, or the National Science Foundation for 0.76, 1, or 12 years, respectively. These are clearly significant dollar expenditures.

Fig. 3 The area of coastal wetland interventions in Louisiana and land losses (from top to bottom): Water area created as a result of agricultural impoundments (Turner and Streever 2002); canal and spoil banks formed from dredging (the area of spoil banks equals 1.2 times the area of canal water surface (Baumann and Turner 1990; Britsch and Dunbar 1993)); area affected by marsh management (pond, streams, and bayous surface area is included in the estimate (Boyer 1997)); net coastal land loss from 1930s to 2001 (Britsch and Dunbar 1993), land to water conversions occurring during the 2005 hurricane season (Barras 2006); the anticipated area of wetland creation and restoration from the CWPPRA program (35% of the area affected will be created and restored wetlands and that all projects will be 100% successful; the first 57 projects had 46 with an estimate of the created or restored acreage of the total. The average of 46 projects was that 35% of the area “benefited” would be restored (Anon 1995). The

cost would be $295,857 ha−1

, at 2006 dollars, using these numbers (Anon 1995; US Government Accountability Office 2007)); and the wetlands affected by the proposed 100-year hurricane protection levees collectively known as “Morganza to the Gulf” (http://www.mvn.usace.army.mil/prj/mtog/ accessed 30 May 2009)

The total land area hoped to be gained from of all CWPPRA projects, calculated at the same 35%

rate, and occurring over the 20 year project lifetime equals 9.1 km2 year−1 and is equivalent to 3.7 times the

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historical rate of land formation over 7,000 years. A comparison of the long-term wetland accumulation, the recent losses, the restoration efforts, and the losses after the 2005 hurricanes (Fig. 3) makes it quite clear that the current restoration efforts are grossly insufficient to restore the coast to the area present in the 1930s. Further, additional wetlands will be impounded, or semi-impounded, if the hurricane flood protection levees proposed after the 2005 hurricanes Katrina and Rita are built. The proposed levee system, known as the “Morganza to the Gulf,” is estimated to be high enough (5 m) to not be topped by a 100-year storm event and is designed to have 13 tidal exchange structures within 116 km of earthen levee (the “Leaky Levee” concept). The area of salt and fresh water marshes influenced by the projected, either

negatively or positively, is 4,400 km2 (http://www. mvn.usace.army.mil/prj/mtog/ accessed 30 May, 2009). If implemented, then it will be the largest intervention into wetland health on this coast to date (Fig. 3) and equal to 20 times more area than the CWPPRA restoration program, if successful.

River Diversions

Are the same mistakes being repeated again by adopting the KBWV instead of the IBWV? I think that we may be doing just that and will use the example of a major restoration tool, large river diversions, to discuss how significant questions remain concerning the current approaches that might have been addressed before several expensive river diversions were planned or undertaken. The answers to these questions may eventually support the assumptions about why diversions should be built. Alternatively, the answers may reveal either fatal flaws or significant insights on how to improve upon the performance of diversions. We should not be shy about asking questions. Stuart Pimm, an eminent ecologist, for example, told a story about Robert MacArthur, the “father” of island biogeography, in which he said: “There are worse things than being wrong, and being trivial is one of them.”

The two largest diversions in Louisiana, the Davis Pond, and Caernarvon river diversions, are

capable of delivering about 300 and 227 m3 s−1 of river water, respectively, to the adjacent estuary. Several smaller diversions are also operating. The reasons for diverting riverwater into wetlands rest on three goals (Anon 2006): (1) to reduce estuarine salinity, (2) to add sediments, and (3) to add nutrients. Whether these goals had a quantitative impact on land-loss rates was not vetted in the scientific literature before the diversions were built and are discussed next.

Salinity

The only legal operational goal of the two largest river diversions is to control estuarine salinity. This goal evolved from the original purpose of the two largest diversions, which was based on the idea that oyster harvests would be improved if estuarine salinity was reduced. This hypothesis is contradicted by an analysis of oyster harvests in all of the major estuaries in the Gulf of Mexico (Turner 2006, 2008). The purpose of diversions had shifted, however, to also include the new assumption that lowering estuarine salinity, and stabilizing it (control) would reduce stressors on wetland plant health or even restore some wetlands. Part of the logic is that salinity intrusion kills plants to form open water habitat. Some wetland plants are, of course, stressed by salinity in laboratory experiments. There are, however, no field-based experimental results demonstrating that fresh, brackish, or salt marsh plants are killed or, if killed, that a replacement wetland plant community more tolerant of salt does not take its place. University scientists advising the State on restoration issues concluded that: “To our knowledge, no data is currently available that relates salinity reduction with reduction in land loss” (p. 8.12, Visser et al. 2003). In other words, a permanent loss of wetland area is not indicated by saltier water. Furthermore, several Louisiana estuaries show no significant change in salinity over the last several hundred years compared to the era of recent high land loss (Parsons et al. 1999). The variability in estuarine salinity over decades is related to the offshore influence of a variable Mississippi River discharge and is not a permanent change in salinity, except in a few specific local situations (Wiseman et al. 1990). The 200- year record of Mississippi River discharge indicates variation in flow, but not a lasting change, whereas the discharge from the 1950s to 2000 is above average (Poore et al. 2006). Finally, local precipitation (and local stream discharge) has

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increased in the last 150 years, which would tend to freshen up the estuaries.

These two river diversions are meant to control estuarine salinity, but fluctuating salinities are a signature attribute of estuaries. A further question, then, is “Is the control of estuarine salinity, being confused with ecosystem resilience?” Hollings, one of the foundation thinkers behind what is called “Adaptive Management,” said: “Natural resource management should strive to retain critical types and ranges of natural variation in ecosystems. That is, management should facilitate existing processes and vari- abilities rather than changing or controlling them. By so doing, ecosystem resilience and the organizing processes and structures of ecosystems will be maintained, thus better serving not only the natural functions and species diversity of those systems but also the long-term (although not necessarily short-term) interests of humanity” (Hollings and Meffe 1996). Will controlling estuarine salinity with diversions restore or conserve more wetlands than if the diversion is not built? There are no data demonstrating that one choice is better than the other, but the diversions are built on the assumption that salinity control is essential to mitigate wetland loss. Is this a wise assumption? Is it sufficient reason to expend $100+ million?

Sediments

Although the legal authority for building diversions is invested in salinity control, the widely accepted assumption is that introducing sediments to marshes is the main purpose of diversions, even though the solid material in most deltaic wetland soils is organic matter, not inorganic material (see previous discussion). Nevertheless, river diversions have been built to bring inorganic sediments into coastal wetlands to add to the soil volume. Snedden et al. (2007) determined that the inorganic sediments from the Caernarvon diversion becoming part of wetland soils traveled no more than 6 km from the diversion outfall. They calculated that even if all of the sediments in the diverted water were trapped, this amount would be insufficient to offset the relative rise in sea level. Hurri- canes, in contrast, bring in 200 times more inorganic sediment to the entire coast and distribute these sediments democratically, albeit, episodically (Turner et al. 2006a).

Even more surprising is that there are no available scientifically based estimates of land gain or loss for the area in the path of these diversion or any other diversion. Several hundred million dollars have been spent and there is no professionally developed estimate of land gains and losses resulting from any diversion. Some questions that might reasonably be asked are: (1) what is the capacity for land building if all available sediment in the river were diverted to build land? and (2) what can be restored with the money available using other methods?

Winslow (2006) assessed how much sediment could be diverted and its potential to build land at conference focused on river diversions. Winslow, who works for an engineering consulting firm, assumed that the main river channel must remain useful for navigation and that it would be possible to capture 40%

of the excess flow above 7,080 m3 s1 (250,000 cfs). He estimated that a diversion would be able to operate for less than 30% of the time. At this rate, and assuming 35% retention of sediments, he estimated that

there is the possibility of a land building rate of 6.4 km2 year−1. Building the engineering structures,

however, would create 476 km2 of open water so that it would take 40 years before there was a net gain in land and another 617 years to restore an equivalent amount of land lost from the 1930s to 1990. An underlying assumption in this estimate of potential net land gain after 40 years is that there is no additional land loss elsewhere because of the sediment diverted to the new location. This project-specific estimate of new land is 2.6 times higher than the 7,000 years of land gain on this coast—by diverting only part of the river’s flow. No one has yet explained, to my knowledge, how it is possible to exceed the historic land-building rate of the past 7,000 years (for the whole coast) using only part of the river’s discharge.

The costs for building and maintaining such a mega- diversion remain undefined, but will clearly be expensive. Here is one estimate: The cost per area created for existing diversions is inversely related to the

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size of the project (either dollars or amount of diverted water). A project creating a hoped-for 6.4 km2

year−1 would cost around $50 to 100 million km−2 (2006 dollars; Turner and Boyer 1997), equal to $12 to 25 billion for construction, and additional annual operational and maintenance costs.

Nutrients

Mississippi River diversions bring water to wetlands that had a low nutrient content until the expansion of European- style farming in the Mississippi River watershed in the 1800s (Broussard and Turner 2009). This means that the wetlands receiving overbank flooding before the 1800s were ogliotrophic wetlands. The concentration of nitrate, and probably phosphorus, increased three- to five-fold between the early 1900s and the 1990s (Turner et al. 2007b). Nutrient enrichment of coastal wetlands, in general, results in higher aboveground standing biomass (Morris 1991). This may seem like a good thing if the goal is to increase aboveground plant biomass, but not if the goal is to increase the accumulation of soil organic matter. Here are some reasons why: Most plant production by emergent coastal marshes occurs belowground. This belowground production, all of it organic material, is the majority of material sustaining marshes as sea level rises, thus preventing excessive flooding, eventual plant death, and habitat loss. Results from short-term experiments demonstrate that root and rhizome biomass and carbon accumulation is reduced with nutrient enrichment (Table 3). Results from a 30-year experiment in salt marshes in Massachusetts also show that eutrophication does not increase organic matter accumulation belowground, but that it does weaken soil strength and causes a significant loss in marsh elevation equivalent to about half the average global sea level rise rates (Turner et al. 2009). The erosive influence of storms is more likely if there are fewer roots and rhizomes and diminished soil strength. In sum, sustaining and restoring coastal emergent marshes is more likely if they receive less, not more, nutrient loading.

An example of the chronic effects of nutrient additions may be what happened in 2005 when Hurricanes Katrina and Rita landed on the northern Gulf of Mexico coastline. Barras (2006) estimated that

the area of coastal land declined by 513 km2 in the first year after hurricanes Katrina and Rita. At least half of this was in the Breton Sound estuary receiving the Caernarvon diversion. The northerly path of Hurricane Katrina crossed the area receiving the Caernarvon diversion water, and also a reference area to the east. A levee prevents the eastward flow of the diversion water into this reference area. Land loss was high where diverted Mississippi River water flowed south/southwest, but not in the reference marsh, except at Delacroix where there is an opening that allows some water to move from west to east (Fig. 4). Two smaller diversions, Naomi and West Pt. a la Hache, have land-loss patterns centered near, not far, from where these diversions enter the estuary. A hypothesis that the diverted water has the effect of making the marsh more resistant to hurricane impacts is contradicted by these results. There may be explanations for this unexpected outcome, but it seems like this is an important issue, especially in consideration of the long-term and expensive commitment made for these diversions and much larger diversions under consideration. The lack of a peer-reviewed analysis of how diversions alter hurricane impacts on land-to-water conversions leaves management with a shallow basis to justify important assumptions.

In conclusion, the present river diversions are expensive, have an unproven impact on wetland restoration, and may even lead to more wetland loss. If these efforts become successful, they are unlikely to restore the coast within centuries. Significant questions about the effectiveness of existing diversions remain that could have been addressed before they were built, which I think should be addressed before more are built.

The Acceptance of Either the KBWV or IBWV has Meaningful Consequences

The history of Louisiana’s coastal land management is the acceptance of the KBWV. With the benefit of hindsight I conclude that this has been a problem for management done for narrowly defined goals of private entities or by the well- intentioned public entities backed by nongovernmental public-interest

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groups. The various land use interventions in coastal Louisiana were (and are still) based on a series of assumptions that have their individual and collective risks of being either incorrect or trivial. There are also risks for unidentified assumptions and for the interactions of assumptions producing new unidentified risks. The development of agricultural impoundments did not anticipate acid sulfate soils or the levee failures leading to their demise. The widespread use of water control structures may have temporarily satisfied a desire to create waterfowl habitat and resulted in wetland loss. The indirect effects of dredging wetlands on wetland loss were presumed inconsequential because: (1) these impacts were not recognized, because wetlands were considered wastelands, or (2) their loss was a necessary consequence of fulfilling a perceived larger societal need. Society learned about the potential impacts of each of these interventions only after damage occurred and not before or during their implementations. Louisiana’s coastal restoration efforts, even if 100% successful, are insufficient to redress these damages and have significant, and perhaps compromising, assumptions that may cause additional land loss as wetlands become impounded or semi-impounded by the levees. The proposed hurricane flood protection levees, if built, are poised to become the largest intervention in wetland management, ever. The area of these 4- to 5-m high levees will, like the much smaller spoil bank levees and marsh management levees, have an unavoidable negative impact on wetland habitat.

One factor contributing to why the IBWV is avoided may be because of the scale of the Louisiana restoration effort. It is simply harder to effectively raise questions within a large bureaucracy than in a small one. Thus, increasing the size of either the restoration program or adding the proposed flood protection program will be a significant barrier to adopting the more flexible and inclusive IBWV, especially within the context of urgency to “do something, do anything” that accompanies citizen interests in avoiding hurricane damages. In that context, advocating patience and a few small projects is not considered a particularly strong virtue by local governments. Less dramatic improvements, however, can have a demonstrable effect in the long run. Further, the cumulative significance of a small increase in management insights could have had a large impact on the cumulative loss rates.

Fig. 4 Land loss (red) occurring within a year after hurricanes Katrina and Rita (2005; hurricane Katrina path is the orange line) in the path of the water flowing from three diversions, as determined by Barras (2006). The largest panel (right) is the flow path of the Caernarvon diversion, which enters the failed Big Mar agricultural pond, and then southward. The reference area, bounded by a natural levee ridge on the east is outlined in yellow. The smaller panel is an expanded view of land loss on the west bank near the Naomi and the West Pt. a la Hache diversions. Note that the only land loss on the west bank is centered near these two relatively

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small diversions

For example, if the annual land-loss rates (calculated in Turner 1997) were lowered by 1% annually, with each year accumulating an additional 1% reduction each year, then there would have been a 66% cumulative reduction in the area of land lost by 1990.

Adaptive Management

A signature indicator of the prevalence of the KBWV is the undeniable and striking absence of effective monitoring and adaptive management in restoration (Ralph and Poole 2003; Bernhardt et al. 2005). This situation reveals a resistance to: (1) effective monitoring of project design, (2) implementation and assessment of post-construction developments in meaningful ways, (3) consideration of alternative outcomes in the beginning, including project failure, (4) intellectual audits, and (5) introduction of new information. The absence of the IBWV in this case jeopardizes opportunities to reduce financial waste, raise confidence in agency competency, and it may result in more wetland loss. Ralph and Poole (2003) said “Contemporary approaches to adaptive management preclude iterative, self-correcting management approaches by promising, but failing to implement, adequate and integrated monitoring programs.” (p. 244). If restoration efforts actively embraced the IBWV, then monitoring is independent to better close the feedback loop, questions arising are used to direct the restoration, a strong experimental framework is included, the design phase is well-ventilated, and the capabilities to monitor would drive the definition of goals—not the other way around. If goals are not monitored, then how else is “success” quantified and compared to some metric of success? If the IBWV is adopted, then monitoring program goals and metrics are developed before determining what management might be appropriate, before agreeing on management, and before specific management actions are started. In this way, management can optimize results and reduce the opportunities to do irrevocable harm when something unexpected happens—and unexpected things will happen in complex systems.

Complex or Complicated

Compared to the KBWV, adopting the IBWV offers a strong advantage when addressing complex problems. Complicated problems can be broken down into under- standable parts, and the results might be modeled and applied to other areas. Complex problems, however, are more resistant to inquiry because of, for example, incomplete information and inadequate insights about nonlinear interactions. Applying the results from systems assumed to be merely complicated, when they are actually complex, may result in unforeseen additional problems if the heterogeneous environmental template is viewed as ho- mogenous. A sign of intellectual fatigue in this regard is the flattening of complexity to simplistic assertions about coastal processes, and the submission of quantitative and critical inquiry under the pressure to do something (now!) about an urgent need.

Models

Models are a potentially useful means to overcome some of the problems managing both complicated and complex systems. But modeling conducted and received within either a KBWV or IBWV will have very different levels of certainty and acceptance. If the model is assumed to faithfully predict the future, then there may be little interest in defining the bounds of expectation. Even if these bounds of expectation are identified, the prediction may be useless in the long term. If the ecosystem model of an undisturbed estuary, for example, is based on the average conditions, perhaps because of limited field data or foregoing data incorporation, then model predictions may give comforting, but erroneous, results when novel conditions arise and interact with other factors. For example, a 20-year record of monthly precipitation may be useful to predict estuarine salinity—until there is a hurricane. In this case, the prediction of estuarine salinity may be accurate 99% of the time, but not accumulate during the 1% of the time during which a surge of saltwater is trapped behind a flood protection levee, causing plant death. But,

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if the model is assumed to have significant unknowns (the IBWV), then it will have wide bounds of expectation, perhaps demonstrating the model’s heuristic value, but undermining confidence applying it for management purposes.

Pilkey and Pilkey-Jarvis (2007) make the point that some models are, unfortunately, sometimes misused to stifle discussion of alternative discussion by creating the aura of a misplaced level of certainty to create a political advantage that suppresses debate, especially if the model is opaque. This is not to say that models are inherently unconstructive—they are not. The climate change models, for example, are well ventilated by an inclusive participant list, alternative views are sought, and there is an abundance of data to test the models (Elzinga 1997). It is the context in which the models are developed and discussed that makes the global climate change models useful rather than a hindrance, and that context is a key to the acceptance of the IBWV—to create an accepted and useful network of communication and information exchange that illuminates the areas of risks inherent in accepting different levels of certainty represented in models, how to adapt to new information, and to accurately identify complex system behaviors.

Some Simple Goals

Below are a few simple goals that are fostered by adoption of the IBWV and that may help avoid potentially fatal flaws of logic, administration lapses, and financial waste.

1. Assume that key pieces of information are missing and may not be revealed (ever)

2. Because of the collective and respected ignorance, be flexible in how to develop, evaluate, and apply new information and perspectives; learn how to create the context for that situation

3. Include many small steps that are addressed in multiple ways

4. Let data trump concepts, not the reverse. If “the bigger, the better” is the operating model, then the model is likely to be superficially abstract (this is not to dispute the need for hierarchy or a division of labor)

5. Assume that surprises will occur

6. Develop exit strategies, including how to reverse interventions

7. Do no harm; do not implement plans that will be irreversible if they go awry; if irreversible outcomes are anticipated, then start with the smallest plans, not the largest ones

NEPA

NEPA PROCEDURAL GIUDE AND LEGISLATION

Washington University Journal of Law and Policy, 2007, NEPA'S ZONE OF INTERESTS by: Kenley S. Maddux

The National Environmental Policy Act (“NEPA”) is a central federal environmental conservation statute. It requires federal agencies to consider the environmental impacts of their actions and to incorporate environmental values into their decisionmaking. Private parties injured by agency noncompliance with NEPA may be able to sue in federal court for an injunction mandating NEPA compliance. Common harms in the reported NEPA cases include damage to property, recreational opportunities, and aesthetic values.

Before a private party can sue to enforce NEPA, the party must establish its standing. The standing of private parties to bring actions under NEPA is the focus of this Note. Specifically, this Note focuses on the

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zone of interests test for prudential standing. This judicially created requirement bars plaintiffs asserting injuries outside the zone of interests of the statutory provision on which they rely.

A circuit split has formed regarding the application of the zone of interests test to NEPA. The Ninth Circuit Court of Appeals recently held that purely economic interests are not within the zone of interests of any provision of NEPA. That decision criticized a line of Eighth Circuit cases, which held that at least one of NEPA's provisions may protect purely economic interests. In effect, the Ninth Circuit rule prevents individuals suffering economic harms due to agency noncompliance with NEPA from challenging the detrimental agency actions in court. The Eighth Circuit rule, on the other hand, appears to permit challenges based on economic injuries in some circumstances.

This Note analyzes the split and attempts to identify an appropriate resolution. Part I outlines NEPA and current standing jurisprudence. Part II presents the division of authority on NEPA's zone of interests and sets out the arguments of each side. Part III evaluates the competing approaches, looking at whether each is consistent with legislative intent, judicial precedent, and public policy.

I. Background: NEPA, NEPA Actions, and Standing to Sue Under NEPA

A. NEPA's Environmental Impact Statement Requirement

NEPA is primarily a procedural statute. The legislative purpose stated in NEPA is to promote environmental values. NEPA promotes environmental interests most actively with its environmental impact statement (“EIS”) requirement. An EIS is a statement of the various impacts of a given action. The Council on Environmental Quality (“CEQ”) has the power to issue regulations interpreting the EIS requirement. An EIS or substantial equivalent is required whenever the action will cause a significant environmental impact. CEQ regulations impose numerous procedural and drafting requirements on the preparation of an EIS, which can make the process complex and protracted. Preparation of *194 an EIS can consume considerable agency resources and lead to costly project delays. As a result, agencies seem to avoid the EIS process whenever possible.

If an EIS were required for every federal agency action, NEPA would severely hamper the functions of the federal government. However, NEPA only requires an EIS where significant environmental impact is expected to result. For minor or routine actions, the agency will know the expected level of impact and whether an EIS is necessary without making any investigation. If the level of environmental impact is unknown, however, the agency must carry out an environmental assessment (“EA”). An EA addresses the sole question of whether any significant environmental impact from a given action is likely. Unlike an EIS, an EA is a brief report with few formal requirements.

If the EA shows that significant environmental impact may result from the action, the agency must complete an EIS. If not, the agency may release a finding of no significant impact (a “FONSI”). A FONSI is the substantial equivalent of an EIS, therefore releasing a FONSI fulfills the EIS requirement. Like an EA but unlike an EIS, a FONSI has relatively few formal requirements. The FONSI complies with NEPA, and is cheaper and easier to prepare than an EIS. Not surprisingly, agencies frequently use FONSIs and other alternatives to the EIS process.

B. Private Actions to Enforce NEPA Compliance

NEPA does not create a private cause of action. Unlike some environmental statutes, it has no citizen suit provision. However, the Administrative Procedure Act (“APA”) allows individuals harmed by agency actions to seek judicial review of those actions. As applied, the APA permits private parties to challenge agency compliance with NEPA in court. Courts review agency NEPA compliance efforts for arbitrariness and abuse of discretion. In these cases, courts give agencies which have obeyed NEPA procedures substantial latitude to interpret the relevant data, weigh competing values, and select a course of action. In contrast, agencies who fail to comply with NEPA, such as those who have failed to prepare a

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required EIS, have their decisions more rigorously reviewed. These agencies may be enjoined from proceeding with the action until they satisfy NEPA.

C. Prudential Standing to File a NEPA Complaint

Plaintiff standing is frequently litigated in NEPA cases. “In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or the particular issues.” Prudential standing is a set of principles of judicial self-restraint regarding the types of interests that courts will allow a party to assert. Congress has the power to alter or eliminate the judicially-created prudential standing rules.

The zone of interests test is the current formulation of a doctrine that has long existed in standing jurisprudence. The test was first stated in Association Data Processing Service Organization v. Camp. In that case, the Supreme Court considered whether financial data processors had standing under the APA and relevant banking statutes to challenge a regulation allowing banks to participate in the data processing field. The plaintiffs' naked purpose in opposing the regulation was to protect their business from competition. The Court stated the rule that a complainant has standing only if “the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” Applying this rule, the Court held that the banking statute's express limitation on certain bank activities “arguably brings a competitor within the zone of interests protected by it.” It concluded that the data processors had standing to seek judicial review.The Data Processing zone of interests test remains a feature of prudential standing. It has been described as a permissive requirement. Competitor suits and suits by others asserting economic interests have been permitted under the APA in a variety of contexts. However, it is clear that the Court intends the requirement to bar at least some suits. Courts applying the zone of interests test have dismissed numerous suits.

The Supreme Court has not considered NEPA's zone of interests test, but its decision in Bennett v. Spear presents a similar question. In Bennett, ranchers and farmers challenged a minimum water level set under the Endangered Species Act (hereinafter “ESA”), the purpose of which was to protect an endangered fish species living in a certain reservoir. The private plaintiffs alleged, among other claims, that the order violated section 7 of the ESA, which requires agencies to “use the best scientific and commercial data available” in making decisions under the ESA. The plaintiffs submitted data showing that the continued normal operation of the reservoir would not impact the fish species in question, and therefore the minimum water level was not necessary to protect the fish.

Standing was a central issue in the case. The plaintiffs' interest in the matter was economic, namely their desire to use the reservoir water for agriculture. The Court stated that the zone of interests of a statute “is to be determined not by reference to the overall purpose of the Act in question . . ., but by reference to the particular provision of law upon which the plaintiff relies.” The Court found that while the overall purpose of the ESA was species preservation, one purpose of section 7 was to prevent unnecessary impacts on the economy. It concluded that the plaintiffs were “plainly within the zone of interest that the provision protects.”

II. The Circuit Split over ‘Economic Interests' and NEPA

A. The Eighth Circuit: Sometimes, NEPA Protects Purely Economic Interests

The leading Eighth Circuit case on NEPA's zone of interests is Rosebud Sioux Tribe v. McDivitt. The appellant in Rosebud was a company that attempted to lease tribal land for hog production. Initially, the Bureau of Indian Affairs (“BIA”) approved the lease after preparing an EA and issuing a FONSI. The BIA later revoked its approval when an advocacy group challenged the lease in court, alleging noncompliance with NEPA. The hog company then challenged the revocation under NEPA. It did not rely on a specific NEPA provision to support its standing, but cited NEPA as a whole.

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The Eighth Circuit recognizes that “the purpose of NEPA is to establish ‘a broad national commitment to protecting and promoting environmental quality.”’ However, following Bennett, the court's standing inquiry focuses on the particular provisions raised by the plaintiffs rather than the overarching purpose of the act in question. The hog company's failure to cite any specific provision led the court to summarize its previous analyses of standing under NEPA's various provisions.

As read by the Eighth Circuit, use of the term “human environment” in NEPA's EIS provision, section 102(2)(C), “requires consideration of economic interests” in every EIS. In support of this interpretation, the Eighth Circuit cites the regulatory definition of “human environment,” and points out several other places where NEPA and its implementing regulations appear to display concern for economic interests. However, this aspect of section 102(2)(C) “only applies when an EIS is prepared,” and thus did not apply to the BIA's action in Rosebud.

Outside the EIS context, the Eighth Circuit has not held that any NEPA provision requires consideration of economic effects. The statement of concern for the “economic . . . requirements of present and future generations of Americans” in section 101(a) is “merely a broad policy statement” which does not provide a basis for standing. Section 102(2)(E) does not reference the human environment or economic interests, and thus cannot support the standing of a plaintiff with purely economic interests.In sum, the Eighth Circuit rule distinguishes between challenges to non-preparation of an EIS (threshold applicability cases) and challenges to the adequacy of an existing EIS. Standing to challenge the non-preparation of an EIS requires an environmental injury. Standing to challenge the adequacy of an EIS, on the other hand, may be supported by an economic injury.

B. The Ninth Circuit: A Purely Economic Injury is not Within NEPA's Zone of Interests

The Ninth Circuit rejected the Eighth Circuit rule in Ashley Creek Phosphate Co. v. Norton. In that case, a producer of phosphate challenged a Bureau of Land Management decision allowing another company to open a phosphate mine on government land. The producer alleged that the EIS for the project did not consider that it could produce the phosphate, a lower-impact alternative to its competitor's mining. The court found that the plaintiff lacked constitutional standing, but proceeded to consider prudential standing as an alternative basis for its decision.

The Ninth Circuit directly criticized the Eighth Circuit's “bifurcated reading” of section 102(2)(C), on which the producer relied. First, the court argued that section 102(2)(C) “does not set out a purely economic factor, unconnected to environmental concerns.” Second, it pointed out Supreme Court precedent identifying NEPA as a statute that protects the environment. Third, the Ninth Circuit challenged the Eighth Circuit's reliance on the regulatory definition of “human environment” to support its interpretation of section 102(2)(C). The court questioned such reliance was appropriate, adopting the position that “courts should not use regulations to expand the zone of interests beyond what Congress intended.” The Ninth Circuit then examined the regulation and concluded that “to the extent regulations clarify section 102(2)(C)'s zone of interests, they demonstrate that purely economic considerations are not within that zone.”

Finally, the court provided an alternative application of Bennett v. Spear to NEPA. It distinguished between NEPA and ESA, arguing that the ESA provision at issue in Bennett “establishes specific normative requirements, [while] each section of NEPA is a purely procedural one that furthers the general purpose of the statute.” It concluded, on this basis, that the purpose of NEPA and the purpose of section 102(2)(C) are “one and the same: protection of the environment.”

III. What Is NEPA's Zone of Interest?

A. Bennett v. Spear and NEPA

The Ninth Circuit's reading of NEPA in Ashley Creek is unpersuasive:

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In contrast to the [Endangered Species Act], under which the substantive goals of an individual provision may have a more specific objective than the overarching goal of the statute and may be analyzed independently, section 102 of NEPA cannot be separated from the statute's overarching purpose of environmental protection because it is designed to further that purpose [.]. Bennett v. Spear's holding, that even though section 7 of the ESA is designed to further the statute's overarching purpose of species preservation, it also aims to prevent needless economic dislocation, counters the Ninth Circuit's position. It is thus apparent that section 102(2)(C) may further any number of purposes, both economic and environmental. The question of which purposes it promotes depends on congressional intent.

B. Congressional Intent: The Purpose(s) of NEPA

The overarching purpose of NEPA is clearly articulated in section 101. Section 101 exhibits concern for economic goals and values, but this concern is presented through the lens of the environment. Stated another way, the purpose of the act is to protect the environment so that economic goals and other goals can be fulfilled. While section 101 reflects appreciation of economic factors, environmental concerns are the clear focus of the statute.

Of course, Bennett shows that the overarching purpose of a statute may be distinct from the purposes of its individual provisions. The initial clause of section 102(2)(C) requires an EIS whenever there is a significant impact on the “human environment.” The statute does not define “human environment.” Therefore, construction of the term falls to common usage. Most simply, “human environment” means *208 “the environment of humans” or “the surroundings we live in.” Congress defined the set of situations in which an EIS is required, and it makes sense that they would impose this burden only when environmental interests are at stake. On this point, the intent of the Congress seems clear: a plaintiff must assert an environmental interest in order to have standing to challenge non-preparation of an EIS.

Section 102(2)(C)(iv) requires every EIS to cover “the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity.” The mention of “productivity” suggests an economic consideration, since productivity is a measure of economic output per unit of input. On the other hand, the placement of “productivity” within the clause links it to “man's environment,” suggesting that productivity here refers to an environmental value. Recalling the means-ends relation of environmental and economic goals of section 101, it appears that section 102(2)(C)(iv) refers to the tradeoffs involved in making decisions about the allocations of resources. Other features of section 102(2)(C) support this observation: subsection (iii) requires inclusion of alternatives to the proposed action; subsection (iv) refers to “uses,” implying consideration of multiple purposes; and subsection (v) requires a discussion of permanent resource commitments. These textual features indicate that Congress intended economic values related to local, short-term consumption of resources to be considered alongside environmental values related to sustainable long-term uses.

This is not to say, however, that the Eighth Circuit interpretation is the correct interpretation, that all economic interests are sufficient to confer standing to challenge the sufficiency of an EIS which has already been prepared. Agency actions may affect economic interests that are not related to weighing local short-term economic benefits against the benefits of a more sustainable policy. Economic interests unrelated to the environment are outside the zone of interests of NEPA and do not support standing.For example, the plaintiff mining company in Ashley Creek was interested in neither the immediate short-term use of the resource in question, the government land, nor the preservation of that resource. The company's purpose was to procure business for itself by obstructing a competing business. The harm caused by the alleged NEPA violation, loss of a business opportunity, was not tied to aesthetic values or use of natural resources. The decision in Ashley Creek was therefore correct.In contrast, a professional guide's interest in the use of a certain wilderness area, although economic, is directly related to the environment. The guide derives his livelihood from the use of environmental resources. NEPA's concern for competing uses and commitments of resources requires consideration of

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these interests in the EIS. A professional guide or outfitter with these interests should be permitted to enforce the EIS requirement.

This approach, which appears to be the correct application of the zone of interests test to section 102(2)(C), based on the text of that statute, is captured by one statement of the Ninth Circuit:. . . [Section 102(2)(C)(iv)] requires a statement, not of all economic interests, but rather of the relationship between uses of the environment and productivity. It does not require a discussion of the impacts on productivity that are not intertwined with the environment. In short, nothing in the text of [the EIS requirement] suggests that an EIS must address an economic concern that is not tethered to the environment.

In sum, economic interests “tethered to” or “intertwined with” the environment, such as those connected with aesthetic values or the use of natural resources are within the zone of interests implicated by section 102(2)(C). Therefore, those economic interests should support standing to challenge an EIS.

C. Public Policy: Who Should Have Standing?

Even if the rule set out in the previous section is the correct application of the current standing doctrine to the current NEPA statute, it is susceptible to policy arguments. Congress has the power to modify the rules of prudential standing, and it has the power to modify NEPA. If a different rule would better serve the interests of the public, then Congress should move to adopt it.

One policy concern raised by the current rule is the ability of affected parties to participate in the NEPA process and to challenge results unfavorable to them. Under current NEPA standing doctrine, non-environmental economic interest parties cannot challenge non-preparation of an EIS. This might be considered a fault of the current doctrine, and a justification for expanding the scope of NEPA. However, NEPA is not concerned with the interests of such parties. There are statutes other than NEPA that require agencies to consider certain economic effects of their actions. If Congress wanted to expand the ability of economic interest parties to challenge agency actions, it would be more sensible to enact an appropriate economic policy act than to amend NEPA and distort its purpose.

The other countervailing policy concern is the avoidance of undue interference with agency action. Agencies are constrained to comply with NEPA before taking any action with significant environmental effects. When this mandatory compliance takes the form of an EIS, costly delays and lost opportunities may result. To some extent, this is an unavoidable consequence of NEPA generally and is not tied to rules about standing. However, if more liberal standing rules were adopted, the number of lawsuits filed would presumably rise, as would the costs of litigation to agencies. In response, agencies would be likely to approach the EIS process with more caution, either including reams of unnecessary documents and analyses in a misguided effort to survive review, or avoiding it through overuse of FONSIs. Neither approach would efficiently and effectively advance the goals of NEPA. Thus, an ideal rule would provide appropriate opportunities for private parties to assert their interests while, at the same time, minimally hampering the ability of agencies to make timely decisions.

One approach would deny standing to all parties with an economic, rather than purely environmental, interest. While it is certainly important not to apply NEPA so that it unreasonably interferes with agency processes, it is not clear that such a rule would substantially accomplish this goal. Economic interest plaintiffs appear to bring only a small number of NEPA cases, and so it does not seem that their presence greatly increases either incidence, expense, or agency fear of NEPA litigation. Furthermore, standing is no guarantee of a hearing on the merits, as some portion of economic interest cases are already dispatched relatively inexpensively on motions to dismiss. It is thus unclear whether agency operations would be made substantially more efficient by denying all economic interest plaintiffs standing.

More importantly, there are better ways to limit NEPA's negative effects on agency efficiency. One proposal is firm time limits on the NEPA process and page limits on NEPA compliance documents. If

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aversion to legal liability causes some agencies to irrationally over-allocate resources to NEPA compliance efforts, this tendency could be corrected by externally-imposed limitations. To the extent that NEPA compliance efforts are a cause of agency inefficiency, this proposal seems a better solution than excluding plaintiffs who arguably serve the purpose of NEPA.

Another proposal would limit standing to parties who have asserted their interests throughout the NEPA process. Opportunities for public comment and participation occur at several key junctures in the process. If interested parties make use of these forums to voice their interests, agencies have the opportunity to address these concerns preemptively. However, agencies never have the opportunity to do this if interested parties opt not to participate. Penalizing nonparticipating parties through loss of standing to sue would substantially narrow the class of potential plaintiffs without arbitrarily eliminating parties based on an abstract judgment about the nature of their interests.

These two proposals, reining in the excesses of the EIS process and making active participation in the NEPA process a prerequisite for standing, promote efficient agency decisionmaking, as well as the goals of NEPA. These proposals and others that do not arbitrarily exclude interested parties should be explored before a more restrictive standing rule is considered.

IV. Conclusion

NEPA's EIS provision is a considerable safeguard against short-sighted agency actions that ignore significant environmental consequences. NEPA enforcement suits by private parties make agency decisionmaking less efficient, but have the valuable upside of promoting NEPA compliance. Prudential standing is one way the federal courts safeguard against frivolous lawsuits, and the zone of interests test in particular gives effect to congressional purpose. A close reading of NEPA reveals that its zone of interests encompasses economic considerations that bear a substantial relationship to the environment, and excludes all other economic interests. This rule makes sense in the context of current standing doctrines, and it does not appear that its modification would substantially further NEPA purposes. This is particularly true in light of more promising and less arbitrary proposals for improving NEPA standing requirements.

NEPA SAMPLE DOCUMENTS

Sample Petition written by Grant Freeman.

IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF LOUISIANA

NAME OF PLAINTIFF andNAME OF PLAINTIFF

Plaintiffs, CIVIL ACTION NO.: v.

U.S. ARMY CORPS OF ENGINEERS COL. EDWARD R. FLEMING, in hisofficial capacity as District Engineer of theUnited States Army Corps of Engineers,New Orleans Division

Defendant,

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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This action involves the U.S. Army Corps of Engineers’ continuing operation of the freshwater

diversion at Caernarvon, LA that redirects Mississippi River water into the wetlands of the Breton Sound.

New evidence is emerging that the Corps’ redirection of this freshwater is in fact harmful to the wetlands in

ways not envisioned or considered in their Environmental Impact Statement completed in September of

1984. As such, the Corps is in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), for

arbitrarily and capriciously choosing not to undertake preparation of a Supplemental Environmental

Impact Statement. More specifically, the Corps has failed to follow the procedure set out in 40 CFR §

1502.9(c)(1)(ii), a regulation issued by the Council on Environmental Quality, which demands that agencies

like the Corps prepare a Supplemental Environmental Impact Statement when significant new

circumstances or information arise. For these reasons, a preliminary injunction of the diversion’s

operation should be granted in response to this proper challenge under the National Environmental

Protection Act through the Administrative Procedure Act.

PARTIES AND STANDING

1. NAME OF PLAINTIFF is a Baton Rouge based organization established to protect and promote the

health of the coastal environment for the use and enjoyment of the people of Louisiana. In executing its

purpose, NAME OF PLAINTIFF seeks to ensure that all state and federal laws are obeyed in letter and spirit

and that the agencies acting as trustees of these resources perform their duties effectively and diligently.

NAME OF PLAINTIFF has a particular interest in preserving wetlands that are deteriorating and

disappearing because of human activities. The actions of the Corps concerning this freshwater diversion

have damaged NAME OF PLAINTIFF and its members’ interests.

2. NAME OF PLAINTIFF is a grassroots association of fishermen, oystermen, researchers, and students

that have an interest in preserving their local environment’s quality, commercial viability, and recreational

use. The actions of the Corps concerning this freshwater diversion have damaged NAME OF PLAINTIFF

and its members’ interests.

3. Defendant U.S. Army Corps of Engineers is an agency of the United States Government and Col.

Edward R. Fleming, in his official capacity as the District Engineer for the New Orleans Division, is

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responsible for seeing that the Corps follows appropriate statutes and regulatory procedures that are

triggered by the emergence of significant new evidence.

JURISDICTION AND VENUE

4. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 (federal

question jurisdiction).

5. Venue is appropriate in this judicial district and in this Court pursuant to 28 U.S.C. § 1391, in that

the violations of the law giving rise to this claim occurred in the Eastern District of Louisiana.

BACKGROUND

6. The Corps of Engineers has been operating the freshwater diversion at Caernarvon, LA since 1991.

The structure is designed to shunt water from the Mississippi River into the wetlands of the Breton Sound.

Ostensibly, the project was intended to stabilize salinity in the area for commercial oyster and fish

production and to deposit sediment that would grow the diminishing land area.

7. New evidence concerning the effects of freshwater laden with nutrients and fertilizers from

upstream agricultural runoff on wetlands has surfaced. This evidence strongly suggests that nutrient-rich

freshwater causes wetland flora to develop increased aboveground biomass and reduced belowground

root biomass. Although the nutrients are helping the plants grow, they are inhibiting formation of deep

belowground root structures because the plants no longer have to search for those nutrients in the soil.

Without these stabilizing root structures, the soil in the area is easily washed away by erosion, storm

surges, and saltwater intrusion.

8. The Corps published their Environmental Impact Statement in 1984 as required by the National

Environmental Protection Act, 42 U.S.C. § 4332. NEPA itself does not give plaintiffs a mechanism to sue for

violations of the act, but such actions are permissible when brought through the Administrative Procedure

Act. In this case, the Corps is engaging in activity that is arbitrary and capricious as contemplated by 5

U.S.C. § 706(2)(A) of the APA. There is compelling authority from the Supreme Court of the United States

and the United States Court of Appeal for the Fifth Circuit that indicate that the Corps should be forced to

study this new threat by preparing an SEIS and that their refusal to do so is not entitled to administrative

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deference. The relevant authority and supporting scientific evidence will be presented in the memoranda

and exhibits that follow.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs pray that this Court grant the following relief:

(1) A declaration that the Corps’ failure to investigate this new unconsidered threat is in

violation of NEPA, the Administrative Procedure Act, and CEQ regulations;

(2) Award preliminary injunctive relief until the Corps has studied these threats and

procedurally complies with the relevant law;

(3) Retain jurisdiction of this matter to ensure compliance with its decree;

(4) An award of the Plaintiffs’ attorneys’ fees, expert fees, court costs, and other costs; and

(5) Such other and further relief as this Court may deem proper on the premises.

Dated this ____th day of ___________, 20_____.

Respectfully submitted,

________________________________

NEPA DISCOVERY AIDS

EIS

EIS LEGISLATION

State Statutes

LSA-Const. Art. 9, § 1§ 1. Natural Resources and Environment; Public Policy

Section 1. The natural resources of the state, including air and water, and the healthful, scenic, historic, and esthetic quality of the environment shall be protected, conserved, and replenished insofar as possible

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and consistent with the health, safety, and welfare of the people. The legislature shall enact laws to implement this policy.

Any written finding of fact and reasons for decision by Department of Environmental Quality (DEQ) in contested case involving complex issues must satisfy three issues: whether potential and real adverse environmental effects of proposed project have been avoided to maximum extent possible; whether cost benefit analysis of environmental impact costs balanced against social and economic benefits of project demonstrate that latter outweighs former; and whether there are alternative projects or alternative sites or mitigating measures which would offer more protection to environment than proposed project without unduly curtailing non-environmental benefits to extent applicable.

Matter of Rubicon, Inc., 95-0108 (La. App. 1 Cir. 2/14/96), 670 So. 2d 475

LSA-R.S. 30:2018§ 2018. Environmental assessment hearings

A. The applicant for a new permit or a major modification of an existing permit as defined in rules and regulations that would authorize the treatment, storage, or disposal of hazardous wastes, the disposal of solid wastes, or the discharge of water pollutants or air emissions in sufficient quantity or concentration to constitute a major source under the rules of the department shall submit an environmental assessment statement as a part of the permit application.

B. The environmental assessment statement provided for in this Section shall be used to satisfy the public trustee requirements of Article IX, Section 1 of the Constitution of Louisiana and shall address the following issues regarding the proposed permit activity:

(1) The potential and real adverse environmental effects of the proposed permit activities.

(2) A cost-benefit analysis of the environmental impact costs of the proposed activity balanced against the social and economic benefits of the activity which demonstrates that the latter outweighs the former.

(3) The alternatives to the proposed activity which would offer more protection to the environment without unduly curtailing non-environmental benefits.

C. The department may, and if requested, shall, conduct a public hearing on the environmental assessment statement in the parish where the facility is located. Any public hearing on the environmental assessment statement, whether requested or at the discretion of the department, may be combined with a public hearing on the proposed permit. If the facility is located in more than one parish, the department may conduct a single hearing to serve all the affected parishes in the vicinity of a centrally located facility. Simultaneously with the submission of the statement to the department, the applicant shall also submit copies of the statement to the local governmental authority and designated public library where the facility is located, at no cost to the local governmental authority or the designated public library.

D. If public hearings are conducted pursuant to this Section, they shall be controlled by R.S. 30:2017.

E. The following are not subject to this Section:

(1) An application for a minor modification, minor variance, or exemption from or administrative amendment to a permit, license, registration, variance, or compliance schedule authorized by this Subtitle.

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(2) An application for a minor source of air emissions, hazardous wastes, or solid wastes, or for a facility or activity which is not a major facility for water discharges.

(3) An application for authority to commence construction, a groundwater certification, or any decision regarding remedial action, remediation, response, corrective action, or cleanup of soil, groundwater, or surface water related to the facility or such immovable property.

(4) An application for renewal or extension of existing permits, licenses, registrations, exemptions, variances, or compliance schedules, unless said renewal or extension encompasses changes that need to be addressed as major applications.

(5) Any rulemaking by the department.

F. The provisions of this Section shall not apply to permits applied for prior to September 15, 1997.

G. The department shall rely on its applicable rules and regulations to determine whether a source, facility, or modification is considered as major or minor for the purposes of this Section.

H. Nothing in this Section shall relieve permit applicants or the department from the public trustee requirements set forth in Article IX, Section 1 of the Constitution of Louisiana and by the Supreme Court of Louisiana in Save Ourselves v. Louisiana Environmental Control Commission, 452 So.2d 1152 (La. 1984). Subsequent case law and laws interpreting said decisions and the rules and regulations adopted by the department in accordance with those decisions may be used to implement these requirements.

Federal Statutes

42 U.S.C.A. § 4321§ 4321. Congressional declaration of purpose

The purposes of this chapter are: To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality.

42 U.S.C.A. § 4331§ 4331. Congressional declaration of national environmental policy

it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.

EIS PROCEDURAL GIUDE

Federal Case law and secondary sources

Necessity and Sufficiency of Environmental Impact Statements Under the National Environmental Policy Act by Ray Vaughan, J.D.*

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American Jurisprudence Proof of Facts 3d

Topic of Article:

Proof of the necessity and sufficiency of an environmental impact statement with respect to action proposed by a federal governmental agency, pursuant to the requirements of the National Policy Act.

This issue generally arises in a legal action brought by a private individual, organization, corporation, or other entity, challenging a federal agency's failure to prepare an environmental impact statement, or alleging that a statement issued by the agency did not adequately assess the proposed action's environmental impacts.

I. Background

§ 1. Introduction; scope of article

The National Environmental Policy Act (NEPA) was the first major legislation passed during the explosion of environmental laws enacted during the late 1960s and early 1970s, and was designed to put consideration of environmental impacts on an equal footing with all other factors federal agencies consider when making major decisions. Before the passage of NEPA, many agencies planned and carried out their initiatives with little consideration of the action's possible environmental impact. NEPA was intended to counter this insensitivity in governmental decisionmaking, by requiring agencies that are planning a major federal action with a significant impact on the human environment to prepare an Environmental Impact Statement (EIS).

NEPA is not a long statute by environmental law standards, and its requirements are stated in general terms. Although it is not hard to understand in the abstract, NEPA does not clearly state how its commands are to be carried out in specific instances. Part of this vagueness is due to the fact that Congress had to create a statute that applied to all federal agencies under all circumstances and in all actions that they planned to take. Therefore, despite its relative simplicity, NEPA's practical effect has been massive litigation to fully define its parameters.

Because NEPA litigation has been ongoing since the statute was passed in 1969, most questions about the Act's requirements might seem to have been settled. NEPA's legal requirements are now fairly well known to government agencies, and compliance with the law has become more common among the agencies that have had significant experience with it. Nevertheless, proof of NEPA compliance remains vital for government agencies due to expanded federal activity and the variety of factual situations it may involve, and because of greater public awareness regarding NEPA's mandates. Knowledge of what must be established to make a case under NEPA thus persists as an important area of environmental law.

This article examines the proof necessary to sustain a legal challenge to a federal agency's failure to prepare an environmental impact statement, or allegations that a statement issued by the agency did not adequately assess the proposed action's environmental impacts. Coverage includes a review of NEPA's general requirements, as well as its enforcement and remedies provisions. The article also explores issues involving the decision whether to issue an EIS, and as to the development and contents of such a statement. Other topics covered include judicial review of agency decisions under NEPA; proving and challenging the sufficiency or nonpreparation of an EIS; and exceptions to NEPA requirements. The article provides checklists of the applicable elements of proof, and model interrogatories from a plaintiff environmental group to the acting federal agency. In addition, the article provides sample testimony tending to establish claims that the agency violated NEPA by failing to prepare an EIS or by issuing an inadequate one. Sources for further research are listed in a bibliography at the conclusion of the article.

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Cases:

When the Government conducts an activity, the National Environmental Policy Act (NEPA) itself does not mandate particular results; instead, NEPA imposes only procedural requirements to ensure that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts. National Environmental Policy Act of 1969, § 2 et seq., 42 U.S.C.A. § 4321 et seq. Winter v. Natural Resources Defense Council, Inc., 129 S. Ct. 365, 67 Env't. Rep. Cas. (BNA) 1225 (U.S. 2008)

Because of the operational similarity between NEPA, and NHPA, courts generally treat "major federal actions" under NEPA as closely analogous to "federal undertakings" under the NHPA. National Historic Preservation Act Amendments of 1980, §§ 1 et seq., 16 U.S.C.A. §§ 470 et seq.; National Environmental Policy Act of 1969, §§ 2 et seq., 42 U.S.C.A. §§ 4321 et seq. Sac and Fox Nation of Missouri v. Norton, 240 F.3d 1250, 49 Fed. R. Serv. 3d 697 (10th Cir. 2001), cert. denied, 2002 WL 13244 (U.S. 2002)

§ 2. General requirements of the national environmental policy act (NEPA)

NEPA sets forth the national goals of considering environmental impacts and protecting the environment. Congress clearly stated in NEPA that:

[I]t is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.

Additionally, NEPA "recognizes that each person should enjoy a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment." These policy considerations were intended to signal an important change in how the federal government does business; under NEPA, consideration of environmental impacts would become a primary function of federal agencies as they went about their usual affairs.

To implement these broad and lofty goals, NEPA provides that all federal agencies conform their administrative procedures and policies to those stated in NEPA. The Act makes its clear that NEPA provides additional authority to each and every federal agency to consider the environmental impacts of its actions. Thus, every federal agency has the authority to consider environmental impacts in its decisionmaking processes, regardless of whether its operative statutes give it that authority, as NEPA confers that power on all federal agencies. Because of NEPA, no federal agency can claim that it lacks the authority to consider environmental impacts as it implements its other commands.

NEPA's principal feature is found in § 102. This is the requirement that federal agencies planning a major federal action that would have a significant impact on the human environment prepare an Environmental Impact Statement (EIS). Specifically, the statute provides that all federal agencies shall:include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on—

(i)the environmental impact of the proposed action,

(ii)any adverse environmental effects which cannot be avoided should the proposal be implemented,

(iii)alternatives to the proposed action,

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(iv)the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and

(v)any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

This one section provides most of the mandates of NEPA, and has spawned most of the litigation under it. The key issues in such litigation are: (1) When is a recommendation or report sufficiently concrete that it triggers NEPA obligations? (2) What is a "federal" action? (3) When is a federal action "major"? (4) Does the action in question "significantly" affect the environment? (5) Is the agency's EIS sufficient in its scope and in its consideration of environmental impacts? These issues are generally fact intensive and require various types of proof.

A plaintiff challenging a federal agency's decision not to issue an EIS must show that the "action" contemplated by the agency is concrete enough to trigger NEPA obligations. In other words, the "action" must be more than some possible proposal in the mind of one bureaucrat who has yet to send it to others and begin the process of making that idea a reality. On the other hand, a final proposal for a dam on a major river that is ready for congressional funding would clearly require NEPA consideration. The difficulties of proof lie in between these two examples, and the heart of the question involves evidence that the challenged action will lead to further action that will have environmental impacts.

The question whether a proposed action is "federal" comes up much less often. Normally, when the Army Corps of Engineers is considering a permit to fill a wetland, or the National Park Service is deciding whether to build a campground in grizzly bear habitat in Yellowstone, it is clear that a federal agency is acting. Problems arise when, for instance, a state plans on building a new highway; NEPA does not apply to state agencies, but if federal funds or federal permits are involved, NEPA would be implicated. Thus, if state or private action is "federalized" through some kind of federal "nexus," the federal agency involved will have to comply with NEPA. The amount of federal assistance and the extent of federal control are key issues in determining whether an action is sufficiently "federal" to implicate NEPA requirements. A certain degree of necessary federal control and exercise of discretion over the action is needed. A state's use of federal funds, where the federal government has no control over how the state uses those funds, has been insufficient "federal" action to require NEPA compliance.

Whether a proposed federal action qualifies as "major" for NEPA purposes is another difficult issue. This is a highly factual question, as proof of possible impacts and of the scope of the action itself must be relied on to establish or negate its "major" quality. Yet another fact-intensive issue, generally requiring specialized expert testimony, is whether a proposed federal action would "significantly" affect the environment.

A mixture of legal and factual issues is often raised when the question is whether an agency's EIS is sufficient in its scope and consideration of environmental impacts. For example, if the agency decisionmaker completely failed to consider any alternatives to the proposed action, then, as a matter of law, the agency did not comply with NEPA's mandates under § 102(C)(iii). However, if the agency followed all the legal requirements, a factual issue could remain as to whether the agency sufficiently considered the environmental impacts. If an agency did consider alternatives to building a dam for electricity generation, but all the data was prepared by an archeologist who knew nothing about dams, geology, hydrology, or electricity, then, as a factual matter, the EIS would be insufficient under NEPA. The question whether an EIS is factually sufficient has been judged by courts under the "clear error of judgment" standard, but due to recent United States Supreme Court decisions, the standard of review may now be the "arbitrary and capricious" standard.

It is very important to note that NEPA is a procedural statute only; it makes no substantive demands on the federal agencies. NEPA requires that agencies take a "hard look" at the environmental effects of a proposed action and its alternatives, but the statute does not require that agencies choose the most environmentally benign alternative, or refrain from choosing the most environmentally destructive

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alternative. The Supreme Court has made it clear that NEPA mandates no particular result from the consideration of environmental impacts, but only that those impacts be identified and considered.

Inconsequential or technical deficiencies: Adequate agency consideration of project's environmental consequences under NEPA is evidenced through form, content, and preparation of environmental impact statement (EIS); Court of Appeals need not "fly speck" an EIS for inconsequential or technical deficiencies, but instead considers whether the agency's actual balance of costs and benefits was arbitrary or clearly gave insufficient weight to environmental values. National Environmental Policy Act of 1969, § 102, 42 U.S.C.A. § 4332. Friends of Boundary Waters Wilderness v. Dombeck, 164 F.3d 1115 (8th Cir. 1999)

Primary goal of NEPA is to make sure a government agency carefully gathers and evaluates relevant information about the potential impact of a proposed agency action on the environment and that this information is made available to the public. National Environmental Policy Act of 1969, §§ 2 et seq., 42 U.S.C.A. §§ 4321 et seq. Southern Utah Wilderness Alliance v. Norton, 301 F.3d 1217 (10th Cir. 2002)

Under NEPA, an environment impact statement (EIS) process is intended to ensure that the agency, in reaching its decision will have available, and will carefully consider, detailed information concerning significant environmental impacts, and it also guarantees that the relevant information will be made available to the larger audience that may also play a role both in the decisionmaking process and the implementation of that decision. National Environmental Policy Act of 1969 et seq., § 2, 42 U.S.C.A. § 4321 et seq. Conservation Law Foundation v. Federal Highway Admin., 630 F. Supp. 2d 183, 66 Env't. Rep. Cas. (BNA) 1038, 2007 DNH 106 (D.N.H. 2007).

When determining whether an environmental impact statement (EIS) satisfies National Environmental Policy Act (NEPA), a court must make a pragmatic judgment as to whether the agency has fostered the two principal purposes of an EIS: informed decision-making and informed public participation; rather than getting bogged down in possible technical flaws, a court must take a holistic view of what the agency has done to assess environmental impact, and must remember that it is the agency, and not the court, that has the technical expertise required to perform the environmental analysis in the first place. National Environmental Policy Act of 1969, § 102(2)(C), 42 U.S.C.A. § 4332(2)(C). Habitat Education Center, Inc. v. U.S. Forest Service, 593 F. Supp. 2d 1019 (E.D. Wis. 2009).

Unlike most federal environmental statutes, NEPA does not have a citizen suit provision that explicitly allows citizens to sue over alleged violations of the Act. However, the courts have long allowed citizens, environmental groups, and corporations to bring legal actions under the Administrative Procedure Act (APA)28 regarding decisions made under NEPA. Thus, every complaint alleging a NEPA violation must include a claim that the APA has been violated regarding the decision at issue. Working through the APA, relief for NEPA violations involves injunctive relief, and no assessment of penalties for violations of NEPA is possible.

NEPA also set up the Council on Environmental Quality (CEQ), which the statute empowers to promulgate regulations on NEPA compliance that are binding on all federal agencies. Federal agencies must establish their own regulations for ensuring NEPA compliance in all of their proposed projects, while the CEQ regulations provide guidance and a set of requirements every agency must meet.

§ 4. Decision whether to issue an EIS

With respect to every proposed federal action, the responsible agency must prepare an Environmental Assessment (EA), which is essentially a mini-EIS that briefly examines the possible environmental impacts of the action. Perhaps the main reason for an EA is to determine whether a full EIS is required. If the EA examination of the proposed action's possible environmental effects shows that there will be no significant impact, then the preparation of an EIS is not required, and the agency may proceed with the project. Such a conclusion is called a Finding Of No Significant Impact, or FONSI. Considerable

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litigation under NEPA has focused on whether an EA and resulting FONSI are sufficient, and whether these documents were wrong concerning the impact of the proposed action.

The federal courts review agency decisions not to prepare an EIS under the Administrative Procedure Act's "arbitrary and capricious" standard. Although that standard is very deferential to agency discretion, the courts have not turned a blind eye to official pronouncements of no significant impact, and carefully review such decisions to make sure that NEPA has been complied with fully.

Cases:

Rule of reason: Inherent in NEPA and its implementing regulations is "rule of reason," which ensures that agencies determine whether and to what extent to prepare environmental impact statement (EIS) based on usefulness of any new potential information to decisionmaking process; where preparation of EIS would serve no purpose in light of NEPA's regulatory scheme as a whole, no rule of reason worthy of that title would require agency to prepare EIS. National Environmental Policy Act of 1969, § 102, 42 U.S.C.A. § 4332; 40 C.F.R. §§ 1500.1(b, c), 1508.8, 1508.9, 1508.18. Department of Transp. v. Public Citizen, 124 S. Ct. 2204, 159 L. Ed. 2d 60, 58 Env't. Rep. Cas. (BNA) 1545, 26 Int'l Trade Re. (BNA) 1097, 34 Envtl. L. Rep. 20033 (U.S. 2004)

Under NEPA, agency is required to provide environmental impact statement (EIS) only if it will be undertaking a major Federal action, which significantly affects quality of the human environment. National Environmental Policy Act of 1969, § 102, 42 U.S.C.A. § 4332; 40 C.F.R. §§ 1508.8, 1508.18. Coliseum Square Ass'n, Inc. v. Jackson, 465 F.3d 215, 36 Envtl. L. Rep. 20195 (5th Cir. 2006)

"Immeasurable" effects of proposed action: Environmental assessment's use of the term "immeasurable" to describe increases in cumulative watershed effects caused by timber sale did not indicate that short-term adverse impacts on the watershed were "uncertain," so as to require an Environmental Impact Statement (EIS) under NEPA; term "immeasurable" reflected Forest Service's conclusion that any effects would be so negligible that they could not be measured. National Environmental Policy Act of 1969, § 102(2)(C), 42 U.S.C.A. § 4332(2)(C). Environmental Protection Information Center v. U.S. Forest Service, 451 F.3d 1005, 36 Envtl. L. Rep. 20120 (9th Cir. 2006)

Risks reasonably foreseeable: Risk of accidental ballistic missile explosion at submarine base was not reasonably foreseeable, so as to require preparation of environmental impact statement (EIS) under NEPA; Navy studied the risk of an explosive accident occurring during missile loading and unloading operations and determined the risk of any accident occurring during these operations to be less than one in one million, and that risk of the mishap leading to an explosion was between one in 100 million and one in one trillion. National Environmental Policy Act of 1969, §§ 2 et seq., 42 U.S.C.A. §§ 4321 et seq.; 40 C.F.R. §§ 1502.16, 1508.8(b). Ground Zero Center for Non-Violent Action v. U.S. Dept. of Navy, 383 F.3d 1082, 34 Envtl. L. Rep. 20100 (9th Cir. 2004)

Although court gives considerable deference to an agency's decision regarding whether to prepare an environmental impact statement (EIS) under National Environmental Policy Act (NEPA), the agency must (1) accurately identify the relevant environmental concern, (2) take a hard look at the problem in preparing its environmental assessment (EA), (3) make a convincing case for its finding of no significant impact, and (4) show that even if a significant impact will occur, changes or safeguards in the project sufficiently reduce the impact to a minimum. National Environmental Policy Act of 1969, § 102(2)(C), 42 U.S.C.A. § 4332(2)(C). New York v. Nuclear Regulatory Com'n, 681 F.3d 471 (D.C. Cir. 2012)

Under NEPA, not every agency decision requires an environmental impact statement (EIS); if it is unclear whether an action will significantly affect the quality of the human environment agencies may prepare an environmental assessment (EA). National Environmental Policy Act of 1969, § 102(2)(C), 42 U.S.C.A. §

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4332(2)(C); 40 C.F.R. § 1501.4(a, b). Theodore Roosevelt Conservation Partnership v. Salazar, 616 F.3d 497 (D.C. Cir. 2010).

Purpose of an environmental assessment is to determine whether there is enough likelihood of significant environmental consequences to justify the time and expense of preparing an environmental impact statement (EIS); thus, preparation of an EA leads either to a finding of no significant impact (FONSI), or to a finding that an EIS is required. National Environmental Policy Act of 1969, § 102, 42 U.S.C.A. § 4332. Hoosier Environmental Council, Inc. v. U.S. Army Corps of Engineers, 105 F. Supp. 2d 953 (S.D. Ind. 2000)

Worst-case scenarios: An environmental impact statement (EIS) need not include a worst-case scenario to comply with NEPA. National Environmental Policy Act of 1969, §§ 2 et seq., 42 U.S.C.A. §§ 4321 et seq. Edwardsen v. U.S. Dept. of Interior, 268 F.3d 781 (9th Cir. 2001)

Level of detail: An environmental impact report (EIR) must include detail sufficient to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project; analysis of environmental effects need not be exhaustive, but will be judged in light of what was reasonably feasible. Gray v. County of Madera, 167 Cal. App. 4th 1099, 85 Cal. Rptr. 3d 50 (5th Dist. 2008)

§ 5.5. Segregation of projects; cumulative impacts

Four-part test: To determine whether a single project is improperly segmented into multiple parts to escape application of the National Environmental Policy Act (NEPA) to some of its segments, four-part test asks whether the proposed segment: (1) has logical termini; (2) has substantial independent utility; (3) does not foreclose the opportunity to consider alternatives; and (4) does not irretrievably commit federal funds for closely related projects. National Environmental Policy Act of 1969, §§ 2 et seq., 42 U.S.C.A. §§ 4321 et seq. O'Reilly v. U.S. Army Corps of Engineers, 477 F.3d 225, 63 Env't. Rep. Cas. (BNA) 1833 (5th Cir. 2007)

NEPA does not require an agency conducting an Environmental Impact Statement (EIS) or Environmental Assessment (EA) to perform a separate analysis of alternatives that are not significantly distinguishable from alternatives actually considered, or that have substantially similar consequences. National Environmental Policy Act of 1969, § 102(E), 42 U.S.C.A. § 4332(E). Te-Moak Tribe of Western Shoshone of Nevada v. U.S. Dept. of Interior, 608 F.3d 592 (9th Cir. 2010)

§ 6. Exploration of alternatives and impacts

Once the project scope of the EIS is determined, the acting agency must determine the range of alternatives and impacts to be considered. Alternatives considered in an EIS must include a "no action" alternative, other reasonable courses of action, and mitigation measures not included in the proposed action. Impacts that must be considered include direct, indirect, and cumulative impacts.

An EIS must present the various alternatives, including the proposed action and the environmental impacts from each alternative, in a comparative fashion that sharply defines the issues and provides a clear basis for choice among options by the decisionmaker and the public. The EIS must "rigorously explore and objectively evaluate all reasonable alternatives," and if the agency eliminates any alternative from detailed study, regardless of who submitted it, the agency must briefly discuss in the EIS why that alternative was not considered with the others. Included in the EIS must be "substantial treatment" of each alternative, reasonable alternatives outside the jurisdiction of the acting agency, the no-action alternative, the agency's preferred alternative, if any, and any other appropriate mitigation measures not in the proposed action or alternatives.

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The affected environment must also be succinctly described in the EIS. The impacts from the various alternatives must be presented in a form that allows for the comparison of alternatives as to their scientific bases and environmental consequences. The impacts that must be discussed include:

Direct effects and their significance Indirect effects and their significance Possible conflicts between the proposed action and any jurisdiction's land use plans for the area Energy requirements and conservation potential of various alternatives and mitigation measures Natural or depletable resource requirements and conservation potential of various alternatives and

mitigation measures Urban quality, historic and cultural resources, and the design of the built environment, including

the reuse and conservation potential of various alternatives and mitigation measures Means to mitigate adverse environmental impacts (if not previously covered)47 The persons

responsible for preparing the EIS, together with a description of their expertise, experience, and professional disciplines, must be included.48

Cases:

An environmental impact statement (EIS) cannot be found wanting simply because the agency failed to include every alternative device thought conceivable by the mind of man, but existence of a viable but unexamined alternative renders an environmental impact statement inadequate. National Environmental Policy Act of 1969, § 102(C), 42 U.S.C.A. § 4332(C). Oregon Natural Desert Ass'n v. Bureau of Land Management, 531 F.3d 1114 (9th Cir. 2008)

The range of reasonable alternatives an agency must consider in developing an environmental assessment (EA) under NEPA depends on the nature and scope of the proposed action; an agency may reject an alternative without detailed discussion so long as it considered the alternative and provided an appropriate explanation as to why it was eliminated. National Environmental Policy Act of 1969, § 102(2)(E), 42 U.S.C.A. § 4332(2)(E). Cloud Foundation v. U.S. Bureau of Land Management, 802 F. Supp. 2d 1192 (D. Nev. 2011)

Although an agency's obligation to consider alternatives under an environmental assessment (EA) is a lesser one than under an environmental impact statement (EIS), NEPA requires that alternatives be given full and meaningful consideration, whether the agency prepares an EA or an EIS. National Environmental Policy Act of 1969, § 102(2)(E), 42 U.S.C.A. § 4332(2)(E). Northwest Environmental Defense Center v. U.S. Army Corps of Engineers, 817 F. Supp. 2d 1290 (D. Or. 2011)

Reasonable alternatives: While reasonable alternatives are to be considered in determining the adequacy of an environmental impact statement (EIS), every potentiality need not be evaluated, as the duty of an agency to prepare an EIS does not require it to engage in remote and speculative analysis. W.S.A. 1.11. Clean Wisconsin, Inc. v. Public Service Com'n of Wisconsin, 2005 WI 93, 282 Wis. 2d 250, 700 N.W.2d 768 (2005)

§ 7. Public notice, comment, and hearing

The procedural route for preparation of an EIS generally follows this formula: scoping, draft EIS, public notice and comment period, public hearing, and final EIS with the final decision. After preparing a draft EIS, the agency must obtain the comments of any other federal agencies that have jurisdiction or special expertise with any of the environmental impacts, and the agency must request the comments of appropriate state and local agencies, affected Indian tribes, and any agency that has requested receipt of draft impact statements of that kind. If an applicant for a federal permit or license is the triggering factor for the EIS process, that applicant must be given the draft EIS and can also submit comments. Further, comments must be requested from the general public and actively solicited from persons and organizations who may be interested or affected, such as environmental groups. The CEQ regulations also provide for

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public notice of the draft EIS and any scheduled hearing on it. Public meetings or hearings on the proposed action will often be governed by the requirements of the statutes that the agency is operating under. Within those restraints, the CEQ regulations specify the method of giving public notice, and provide for public hearings and the solicitation of information from the public, as well as for making the draft EIS available for free to members of the public, or at not more than the actual cost of copying it.

§ 8. Finalization of EIS

Once a draft EIS has gone through the notice and comment process,54 the agency must prepare a final EIS, which will include an assessment of and responses to the comments that were made. Possible responses include modifying the proposed action or alternatives; developing and evaluating new alternatives; supplementing, improving, or modifying the analysis in the EIS; and making factual corrections. The agency must also explain why any comments not responded to in these ways do not warrant a response, such as their obvious unreasonableness.55

With finalization of the EIS, the agency decisionmaker is supposed to have the tools at hand to fully analyze the environmental impacts of the proposed action. After consideration of those impacts, a final determination on the proposal is made.

Cases:

Final environmental impact statement (FEIS) must provide a basis for (1) evaluation of the benefits of the proposed project in light of its environmental risks, and (2) comparison of the net balance for the proposed project with the environmental risks presented by alternative courses of action; existence of a viable but unexamined alternative renders an (EIS) inadequate. 32 C.F.R. § 989.8(b). Davis Mountains Trans-Pecos Heritage Ass'n v. U.S. Air Force, 249 F. Supp. 2d 763 (N.D. Tex. 2003)

§ 9. Supplemental EIS

Even after an EIS is completed and a proposed action has been implemented, the acting agency may have a duty to prepare a Supplemental EIS (SEIS) under certain circumstances. NEPA makes no mention of a SEIS process, but the CEQ regulations mandate a SEIS when there are substantial changes in the proposed action, or when significant new circumstances or information arise. The Supreme Court has approved of these SEIS regulations. Another court has determined that although it does not mention the subject, NEPA requires the preparation of a SEIS, because substantial project changes by themselves may amount to a "major" federal action significantly affecting the quality of the human environment.

The courts have normally judged whether a SEIS is required by how much of a change in the original project has occurred. For example, the Fifth Circuit determined that a 50-percent increase in the land needed to build the Tennessee-Tombigbee Waterway, together with other large changes, was significant and substantial enough to require a SEIS. In a case that involved new information about a project, the Seventh Circuit held that "the extent to which the new information presents a picture of the likely environmental consequences associated with the proposed action not envisioned by the original EIS" is what must be evaluated in order to determine if the changes are substantial enough to warrant a SEIS. The same court stated that a SEIS is not necessary "unless the new information provides a seriously different picture of the environmental landscape such that another hard look is necessary."

Cases:

An agency need only supplement an environmental impact statement (EIS) required under NEPA for proposed agency action if a new circumstance or new information is significant, and determining significance is a factual question requiring technical expertise. National Environmental Policy Act of 1969, §

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2 et seq., 42 U.S.C.A. § 4321 et seq.; 40 C.F.R. §§ 1502.9(c)(1)(ii), 1508.27(b)(7). Habitat Educ. Center, Inc. v. U.S. Forest Service, 673 F.3d 518 (7th Cir. 2012).

Under National Environmental Policy Act (NEPA), an agency must prepare a supplemental assessment if the agency makes substantial changes in the proposed action that are relevant to environmental concerns; when the relevant environmental impacts have already been considered earlier in the NEPA process, no supplement is required. National Environmental Policy Act of 1969, § 102(2)(C), 42 U.S.C.A. § 4332(2)(C); 40 C.F.R. § 1502.9(c)(1)(i). New Mexico ex rel. Richardson v. Bureau of Land Management, 565 F.3d 683 (10th Cir. 2009)

Supplemental environment impact statement (SEIS) reports may be required under NEPA if the new information shows that remaining government action will affect the quality of the human environment in a significant manner or to a significant extent not already considered in the original EIS. National Environmental Policy Act of 1969, § 102(2)(C), 42 U.S.C.A. § 4332(2)(C); 32 C.F.R. § 651.40; 40 C.F.R. § 1502.9(c)(1). Chemical Weapons Working Group v. U.S. Dept. of Defense, 655 F. Supp. 2d 18 (D.D.C. 2009).

Federal action is "controversial," as may require preparation of supplemental environmental impact statement (SEIS), when substantial questions are raised as to whether action may cause significant degradation of some human environmental factor, or there is substantial dispute about size, nature, or effect of action. National Environmental Policy Act of 1969, §§ 2 et seq., 42 U.S.C.A. §§ 4321 et seq.; 40 C.F.R. § 1508.27. Sierra Club v. U.S. Dept. of Transp., 310 F. Supp. 2d 1168 (D. Nev. 2004)

§ 10. Judicial review of agency decisions under NEPA F

or many years, the federal courts were split as to whether substantive agency decisions under NEPA were subject to judicial review and reversal. The issue had been one of whether NEPA required an agency, once it considered the environmental impacts of a proposed action, to modify the action or adopt a less harmful alternative. In Environmental Defense Fund, Inc. v. Corps of Engineers of United States Army, the leading case for many years on judicial review under NEPA, the Eighth Circuit reviewed the adequacy of an EIS on a dam project, and decided that the Administrative Procedure Act (APA) and NEPA's legislative history required substantive judicial review of NEPA decisions. The court explained that NEPA was intended to effect substantive changes in decisionmaking, and that under NEPA, the federal courts have an obligation to review substantive agency decisions on the merits. Most other circuit courts addressing the issue agreed with this analysis of NEPA. The Tenth Circuit, however, disagreed.

Although NEPA makes strong policy statements about the responsibility of federal agencies to protect the environment, the actual commands of the statute involve only the procedure of identifying and considering the environmental impacts of a proposed action and its alternatives. In 1989, the United States Supreme Court finally made it absolutely clear that NEPA provides no substantive mandates for overturning an agency decision, finding it "now well settled that NEPA itself does not mandate particular results but simply prescribes the necessary process."

Because NEPA contains no enforcement provisions and compliance with the statute must be determined under the APA's standards, federal courts usually apply that section of the APA referring to agency action that is "without observance of procedure as required by law." Unlike the cases focusing on whether NEPA contains substantive mandates, the courts have always been fairly uniform on the standard of review for compliance with NEPA's procedural mandates. Attempting to conduct a "strict inquiry" in NEPA cases, the courts have generally decided that the determination whether an agency has met NEPA's procedural requirements is governed by a "rule of reason" standard. That standard requires a reviewing court to take a "hard look" at whether the agency took a "hard look" at the environmental consequences of the proposed action and has "engaged in reasoned decisionmaking." The procedural mandates of NEPA are subject to a "strict standard of compliance."

Cases:

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Agency's decision not to prepare environmental impact statement (EIS) can be set aside only upon showing that it was arbitrary, capricious, abuse of discretion, or otherwise not in accordance with law. 5 U.S.C.A. § 706(2)(A); National Environmental Policy Act of 1969, § 102, 42 U.S.C.A. § 4332; 40 C.F.R. § 1501.4. Department of Transp. v. Public Citizen, 124 S. Ct. 2204, 159 L. Ed. 2d 60, 58 Env't. Rep. Cas. (BNA) 1545, 26 Int'l Trade Re. (BNA) 1097, 34 Envtl. L. Rep. 20033 (U.S. 2004)

In light of purpose of environmental impact statement (EIS) of informing agency and public about potential adverse ecological effects and about availability, if any, of less harmful alternatives prior to final decision on fate of particular project or rule, courts do not review challenges to adequacy of EIS under standard of mathematical exactitude, but under standard of reasonableness. National Environmental Policy Act of 1969, § 102, 42 U.S.C.A. § 4332. Associated Fisheries of Maine, Inc. v. Daley, 127 F.3d 104 (1st Cir. 1997)

Deference is not owed to an agency's scientific or technical expertise when the agency has completely failed to address some factor, consideration of which was essential to making an informed decision. National Wildlife Federation v. National Marine Fisheries Service, 422 F.3d 782 (9th Cir. 2005)

Rule of reason: Supreme Court must assess a challenged environmental impact statement (EIS) in light of the "rule of reason," which requires an EIS to furnish only such information as appears to be reasonably necessary under the circumstances for evaluation of the project, rather than to be so all-encompassing in scope that the task of preparing it would become either fruitless or well nigh impossible. W.S.A. 1.11. Clean Wisconsin, Inc. v. Public Service Com'n of Wisconsin, 2005 WI 93, 282 Wis. 2d 250, 700 N.W.2d 768 (2005)

§ 10.5. Standard of review

Court does not require the agency in its environmental assessment (EA) under NEPA to compile an exhaustive examination of each and every tangential event that potentially could impact the local environment; such a task is impossible, and never-ending. National Environmental Policy Act of 1969, § 2 et seq., 42 U.S.C.A. § 4321 et seq. Native Ecosystems Council v. Weldon, 697 F.3d 1043 (9th Cir. 2012)

Under NEPA, in reviewing an Environmental Impact Statement (EIS), a court must not substitute its judgment for that of the agency, but rather must uphold the agency decision as long as the agency has considered the relevant factors and articulated a rational connection between the facts found and the choice made. National Environmental Policy Act of 1969, §§ 2 et seq., 42 U.S.C.A. §§ 4321 et seq. Navajo Nation v. U.S. Forest Service, 479 F.3d 1024 (9th Cir. 2007)

Standard of review: Court gauges adequacy of environmental impact statement (EIS) under "rule of reason" that does not materially differ from "arbitrary and capricious" review. National Environmental Policy Act of 1969, § 102, 42 U.S.C.A. § 4332. Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059 (9th Cir. 2002)

In reviewing the adequacy of an environmental impact statement (EIS), Court of Appeals determines whether there is a reasonable, good faith, objective presentation of the topics, such that it fosters both informed decision-making and informed public participation. National Environmental Policy Act of 1969, § 102(2)(C), 42 U.S.C.A. § 4332(2)(C); 40 C.F.R. § 1508.14. Forest Guardians v. U.S. Forest Service, 495 F.3d 1162 (10th Cir. 2007)

Rule of reason: A reviewing court tests an environmental impact statement (EIS) under a "rule of reason" standard of review requiring the EIS to contain sufficient discussion of the relevant issues and opposing viewpoints to enable the decisionmaker to take a hard look at environmental factors and to make a reasoned decision. National Environmental Policy Act of 1969, §§ 2 et seq., 42 U.S.C.A. §§ 4321 et seq. Colorado Off-Highway Vehicle Coalition v. U.S., 505 F. Supp. 2d 808 (D. Colo. 2007)

Court may not require agencies to elevate environmental concerns over other, admittedly legitimate considerations; courts should require full compliance with National Environmental Policy Act (NEPA), in

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order that agencies will be fully aware of the impact of their decision, however, in doing so, courts should not "fly speck" environmental impact statements, but rather, courts should be guided by a rule of reason. National Environmental Policy Act of 1969, §§ 2 et seq., 42 U.S.C.A. §§ 4321 et seq. City of Shoreacres v. Waterworth, 332 F. Supp. 2d 992 (S.D. Tex. 2004)

§ 11. Proving and challenging EIS sufficiency, generally

In order for an EIS to be found sufficient, the courts generally require that the agency include three things in the EIS process: (1) "full disclosure" of the proposal's environmental impacts, (2) a "good-faith effort" to consider environmental values, and (3) compliance with NEPA § 102 requirements. Meeting these requirements means that the EIS must contain an explanation of its inquiry, analysis, and reasoning, and must not be vague and conclusory. The scientific data and other information must be presented in a fashion that will give the general public full disclosure of the proposed action's environmental consequences.

If an agency ignores or does not adequately consider a significant environmental impact, its EIS may well be deemed insufficient. A lack of reasonable alternatives and mitigation measures could likewise invalidate an EIS. The burden of proof for a party challenging an EIS is to show that alternatives, mitigation measures, significant impacts, or environmental consequences were not given a sufficiently "hard look" by the agency, or were not fully disclosed to the public. The remedy for a successful challenge to an EIS is a court order requiring the preparation of a new EIS or of a supplemental EIS, if a SEIS would adequately correct the errors in, or examine the changed circumstances since, the original EIS.

Cases:

Future hypotheticals: Purely speculative possibility that, if dredge and fill permit were issued for construction of ten-berth terminal for cargo and cruise ships on undeveloped land adjacent to shipping channel, river might in future have to be deepened to accommodate larger vessels that were expected to traverse the ocean in future was not one which the Army Corps of Engineers was obligated to consider in assessing environmental impacts of issuing permit under the National Environmental Policy Act (NEPA). National Environmental Policy Act of 1969, §§ 2 et seq., 42 U.S.C.A. §§ 4321 et seq. City of Shoreacres v. Waterworth, 420 F.3d 440, 60 Env't. Rep. Cas. (BNA) 2068, 35 Envtl. L. Rep. 20162 (5th Cir. 2005)

Reliance on stale scientific evidence is sufficient to require reexamination of environmental impact statement. City of Carmel-by-the-Sea v United States DOT (1996, CA9 Cal) 95 F3d 892, 96 CDOS 6847.

To provide sufficient analysis of environmental impacts under NEPA, environmental impact statement (EIS) must consider cumulative impacts applicable to agency action under consideration. National Environmental Policy Act of 1969, § 102(2)(C), 42 U.S.C.A. § 4332(2)(C); 40 C.F.R. § 1508.7. Lands Council v. Cottrell, 731 F. Supp. 2d 1028 (D. Idaho 2010), report and recommendation adopted, 731 F. Supp. 2d 1074 (D. Idaho 2010)

§ 11.5. Applying the hard look standard

In reviewing decision under National Environmental Policy Act (NEPA) to forego preparation of an environmental impact statement (EIS), court looks to whether the agency has: (1) taken a "hard look" at the potential impact of its actions; (2) considered all of the relevant factors in its decision; and (3) provided an adequate statement of reasons to explain why a project's impacts are insignificant. 5 U.S.C.A. § 706(2)(A); National Environmental Policy Act of 1969, § 2 et seq., 42 U.S.C.A. § 4321 et seq. Alaska Wilderness League v. Kempthorne, 548 F.3d 815 (9th Cir. 2008)

NEPA does not contain substantive environmental standards and guidelines, nor does Act mandate that agencies achieve particular substantive environmental results. It establishes action-forcing procedures that require agencies to take hard look at environmental consequences; Act also prohibits uninformed, rather than unwise, agency action. National Environmental Policy Act of 1969, §§ 2 et seq., 42 U.S.C.A. §§

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4321 et seq. Center for Biological Diversity v. U.S. Forest Service, 349 F.3d 1157, 57 Env't. Rep. Cas. (BNA) 1449 (9th Cir. 2003)

NEPA does not require an agency to elevate environmental concerns over other appropriate considerations; rather, it requires the agency to take a "hard look" at environmental consequences before acting. National Environmental Policy Act of 1969, §§ 2 et seq., 42 U.S.C.A. §§ 4321 et seq. Hoosier Environmental Council, Inc. v. U.S. Army Corps of Engineers, 105 F. Supp. 2d 953 (S.D. Ind. 2000)

Agency must make convincing case as to why environmental impact statement (EIS) is not necessary if it so decides after preparation of environmental assessment (EA); in any event, whether issuing EA or EIS, the agency's hard look must encompass thorough investigation into environmental impacts of agency's action and candid acknowledgment of risks that those impacts entail. National Environmental Policy Act of 1969, § 102(C), 42 U.S.C.A. § 4332(C); 40 C.F.R. § 1508.9. Coalition to Preserve McIntire Park v. Mendez, 862 F. Supp. 2d 499 (W.D. Va. 2012) (applying federal law)

NEPA is a procedural environmental statute, which does not require agencies to elevate environmental concerns over other appropriate considerations, rather NEPA requires only that federal agency take a "hard look" at potential environmental effects of major federal action. National Environmental Policy Act of 1969, §§ 2 et seq., 42 U.S.C.A. §§ 4321 et seq. Pennaco Energy, Inc. v. U.S. Dept. of Interior, 266 F. Supp. 2d 1323 (D. Wyo. 2003)

II. Elements of Proof

§ 14. Proof as to necessity of EIS; Checklist

Evidence as to the following facts and circumstances should be adduced by the plaintiff in an action challenging a federal agency's failure to prepare an environmental impact statement (EIS), on the ground that an EIS is required under the National Environmental Policy Act (NEPA).

Project's Status as a "Major Federal Action" Requiring an EIS [§§ 2, 4, 9, 12]

Existence of a federal nexuso — A federal permit, lease, or approval is requiredo — Actual proposal from a federal agencyo — Funding or financial assistance from any federal sourceo — Federal agency oversight of a state programo — Federal planning or funding of the state or local program that has control over the

proposed actiono — Federal agency action taken on the proposalo — Amount of federal agency control and discretion over the proposed actiono — Statutory authority (whether used or not) that a federal agency has over the proposed

actiono — Adjudication by a federal agencyo — Rulemaking by a federal agencyo — Proposal for legislation by a federal agency

What the impacts may be to differentiate between "major" and "minor"o — Extent of federal participationo — Time when federal participation becomes necessary

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o — Cumulative impactso — Indirect impactso — Geographical area impacted and how it is impactedo — Number of people impacted and how they are impactedo — Number of wildlife species, individuals, or habitats impacted and how they are impactedo — Amount of federal money involvedo — Amount of federal planning involvedo — Amount of time required of federal agencyo — Amount of other resources required of federal agency

Whether Federal Action Has a "Significant Impact" on the Environment So That an EIS is Required [§§ 2, 4, 9, 12, 18– 22]

Determination of significanceo — Adverse impacts of the proposed actiono — Existing environmental conditions of the area to be impactedo — Relative change in existing environmental conditions of the area to be impacted if the

proposed action is completedo — Unique features and characteristics of the area to be impactedo — Degree that impacted area is in a natural state and previously unaltered by mano — Cumulative impactso — Indirect impactso — Impacts on public health and safetyo — Uncertainty of the possible impactso — Controversial nature of the possible impactso — Thoroughness of agency determination that impact would not be significanto — Impacts on the quality of life of those affectedo — The proposed action may lead to other later actions that will impact the area involvedo — Extent of aesthetic effectso — Probability of environmental risko — Consequences from that environmental risk

§ 15. Proof as to sufficiency of EIS; Checklist

Evidence as to the following facts and circumstances should be adduced by the plaintiff in an action challenging the sufficiency of an environmental impact statement (EIS) prepared by a federal agency under the National Environmental Policy Act (NEPA).

Failure to consider reasonably foreseeable impacts [§§ 2, 5– 7, 11, 23– 36]o — Inadequate description and consideration of the affected environmento — Cumulative impacts not considered by agencyo — Indirect impacts not considered by agencyo — Lack of thoroughness on part of agencyo — Degree that agency took a "hard look" at the possible impactso — Lack of proper scoping in defining the extent of the EISo — Full extent of the impactso — Agency segmentation of one project into several smaller projects to minimize effects of

any one part

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o — Agency failure to follow accepted scientific guidelines for collection of datao — Insufficient datao — Failure to consider data submitted by outside partieso — Ignoring sound datao — Use of improper methodology or technologyo — Ineffective risk analysiso — Lack of support for the EIS's statements in the administrative recordo — Nondisclosure of incomplete or unavailable informationo — Inadequate response to comments from public and other agencies

Failure to consider reasonable alternatives [§§ 2, 5– 7, 11, 23– 36]o — Predisposition to adopt initially proposed, preferred course of actiono — Narrowness of the range of alternativeso — Lack of true alternativeso — Failing to consider reasonable alternatives submitted by outside partieso — Incomplete scoping of alternatives at start of EIS processo — Insufficient consideration of the environmental impacts of alternativeso — Inadequate discussion of the "no action" alternative

Lack of mitigation measureso — Failure to consider mitigation measureso — Failure to include reasonable mitigation measures in the consideration process

— Inadequacy of the discussion of mitigation measures

Memorandum Asking for Preliminary Injunction and Commencement of Supplemental EIS Studies by Eva Conner.

The Caernarvon Freshwater Diversion Project commenced releasing freshwater from the Mississippi River into the Breton Sound area in 1991 for the purposes of stabilizing salinity for oyster production and supplying sediment to maintain and build marshland. The United States Army Corps of Engineers (Corps) completed their study of the feasibility of this project in 1984, including an Environmental Impact Statement (EIS) required by the National Environmental Policy Act of 1970 (NEPA). Their studies and rationale for building the diversion failed to take into account newly studied detrimental effects that nutrient-rich river water has on the root development of marshland flora. Plaintiffs contend that the Caernarvon Diversion should be preliminarily enjoined until the Corps completes a Supplemental Environmental Impact Statement (SEIS) to address this heretofore unexamined threat.

Although there is no action recognized within NEPA itself to challenge the Corps, US Federal Courts

have established that citizens, environmental groups, and corporations can sue federal agencies for NEPA

violations using the Administrative Procedure Act (APA). The APA prohibits agencies from actions that are

“without observance of procedure as required by law.” 5 U.S.C.A. § 706(2)(D). The Corps has not observed

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NEPA’s procedural requirements by failing to account for the harmful effects that nutrient-rich river water

has on marshland root structures and this suit is brought under authority of that Act.

NEPA prohibits uninformed, rather than unwise, agency action. Robertson v. Methow Valley Citizens

Council, 490 US 332 (1989). The Corps has made exactly such an uninformed decision by allowing the

operation of the Caernarvon diversion without knowing of the potential harm involved. Although

standards for EIS challenges differ across federal circuits, the United States Court of Appeals for the Fifth

Circuit has held that a challenge can be sustained if it “raises new concerns of sufficient gravity such that

another, formal in-depth look at the environmental consequences of the proposed action is necessary.”

Louisiana Wildlife Federation, Inc. v. York, 761 F.2d 1044, 1051 (5th Cir. 1985). That is, whether it “provides

a seriously different picture of the environmental landscape such that another hard look is necessary.” Id.

Additionally, the Supreme Court of the United States expressed approval of 40 CFR § 1502.9(c)(1)(ii), a

regulation issued by the Council on Environmental Quality, which demands undertaking a SEIS when

significant new circumstances or information arises. Marsh v. Oregon Natural Resources Council, 490 US 360

(1989). Recent studies indicate that river water saturated with nutrients from agricultural fertilizers

causes marshland flora to develop shallow, poorly formed root structures that do not deeply anchor the

plants to the soil. This soil is then easily washed away by flooding, storms, and the diversion waters itself

because there are no well-formed root structures to hold it in place. Replacing deeply-rooted plants with

shallow-rooted ones is causing a seriously different picture of the environmental landscape that the US

Fifth Circuit and Supreme Court have held would merit another hard look by the Corps, and failing to

address this issue would amount to conduct that is arbitrary and capricious. A further explanation of this

instant threat follows.

EIS SAMPLE DOCUMENTS

EIS DISCOVERY AIDS The primary source of the following content is:

38 Am. Jur. Proof of Facts 3d 547 (Originally published in 1996)

Necessity and Sufficiency of Environmental Impact Statements Under the National Environmental Policy Act written by Ray Vaughan, J.D.

Model Discovery

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Interrogatories from plaintiff environmental group to federal agency, regarding decision not to prepare EIS

These interrogatories are designed for use by a plaintiff environmental group or individual that is challenging a federal agency's decision not to prepare an Environmental Impact Statement (EIS). Given the broad range of possible projects and potential impacts therefrom throughout the United States, the spectrum of environmental considerations involved in a decision whether to prepare an EIS can be wide indeed. Although many of the following interrogatories are general in nature, some are specific in order to show the type of evidence sought when challenging a decision not to prepare an EIS.

Other environmental obligations involved include considerations under the Endangered Species Act (ESA) and the National Historical Preservation Act. Since NEPA requires consideration of all reasonably foreseeable significant impacts on the human environment, an agency that may not have violated ESA may still have violated NEPA by not considering its obligations under ESA.

Caution:

While the following interrogatories are intended to provide a generic set of questions for use in most jurisdictions, be aware that a number of states and federal district courts have numerical limitations and form requirements; we are cautioned to check local rules and discovery statutes in the appropriate jurisdiction.

DEFINITIONSA. PLAINTIFF means [name].

B. DEFENDANT means [name of agency and any officers that have been named in the suit].

C. PERSON means a natural person, partnership, firm, association, citizen group, nonprofit organization, corporation, proprietorship, governmental body, governmental office, government agency, or commission or any other organization or entity.

D. DOCUMENT means any recording of information in any tangible form. This definition includes, but is not limited to, reports, writings, letters, memoranda, correspondence, communications, agreements, contracts, checks, journals, ledgers, logs, notebooks, handwritten or typed notes, pamphlets, periodicals, computer printouts, computer files, computer data bases, communications through E-mail, communications through facsimile (fax) machines, records of meetings, books, speeches, public relations releases, material filed with any government agency, manuals, rules, regulations, any other written matter, photographs, sketches, diagrams, tape recordings, video recordings or other sound or visual reproductions, or any other thing on which information is recorded.

E. EIS means Environmental Impact Statement.

F. EA means the Environmental Assessment prepared by the Defendants that is the subject of this action.

G. NEPA means the National Environmental Policy Act of 1969.

H. DECISIONMAKER means the person or persons at [name of agency] that are responsible for the final decision to prepare the EA in question and not to prepare an EIS.

I. FONSI means the Finding of No Significant Impact issued by the Defendants which is the subject of this action.

J. NHPA means the National Historic Preservation Act.

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K. ESA means the Endangered Species Act.

INSTRUCTIONS

A. IDENTIFY a natural person means to state his/her full name, his/her present or last known business address and telephone number, and his/her present or last known employer and position with that employer.

B. IDENTIFY any entity other than a natural person means to state the full name of such entity or organization and the present or last known address and telephone number of such entity or organization.

C. IDENTIFY a document means to state its date; its author; all persons involved in its drafting; the person responsible for its drafting and the person signing it; its addressee and all other persons receiving copies; the type of the document (letter, contract, report, memorandum, computer printout, computer file, and so on); its title; the substance of the document; its custodian, and its present or last known location. If the document is no longer in your possession or subject to your control, state what was done with the document, when it became outside your control or possession, why it became outside your control or possession, and who was involved in the document becoming outside your control or possession.

INTERROGATORIES

1. IDENTIFY yourself fully, giving your full name, address, business address, occupation, and the office that you hold with the [agency].

2. Prior to answering these interrogatories, have you made a due and diligent search of the agency's books, records, and papers, and due and diligent inquiry of the agency's agents and employees, with a view to eliciting all information available in this action?

3. IDENTIFY all persons who assisted in preparing responses to these interrogatories.

4. State with specificity any and all conversations, either in person or on the telephone, that you or any agent or employee of the [agency] has had with any person regarding [the proposed project and subject matter of the EA].

5. (a)State with specificity all dates and times of any and all meetings, whether formal or informal, from [date] to the present, that you or any agent or employee of the [agency] had with anyone regarding [the proposed project and subject matter of the EA].

(b) State with specificity all participants and persons in attendance and all topics and details of any and all discussions that occurred at the meetings listed in response to Interrogatory 5(a) above.

6. List the name and responsibilities of any and all persons who were involved in drafting and promulgating the EA, and who were involved in any way in the study of [the proposed project and subject matter of the EA].

7. List the name, occupation, and address of any and all persons outside the employ of the [agency] who were involved in the drafting and promulgating of the EA, and who were involved in any way in the study of [the proposed project and subject matter of the EA], and state with specificity all actions taken by those persons.

8. (a)List all studies, research, reports, inquires, investigations, and analyses undertaken by you or the [agency] in regard to determining that there would be no significant environmental impacts resulting from [the proposed project].

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(b) What data did you or the [agency] gather, collect, or generate regarding the determination that there would be no significant environmental impacts resulting from [the proposed project]?

9. Set forth with particularity any and all conversations, meetings, or discussions among [agency] personnel and anyone else regarding political or economic influences upon the determination that there would be no significant environmental impacts resulting from [the proposed project].

10. (a) List all studies other than those submitted by industry, industrial groups, corporations, other business entities or any of their agents or representatives that were relied upon by the [agency] in deciding not to prepare an EIS on [the proposed project].

(b) List all studies submitted by industry, industrial groups, corporations, other business entities or any of their agents or representatives that were reviewed, considered, or relied upon by the [agency] in deciding not to prepare an EIS on [the proposed project].

11. With regard to the administrative record developed before the [agency] prior to issuance of the EA and the FONSI on [date], please answer the following:

(a) Did the decisionmaker read the entire record?

(b) Please state with specificity the exact dates and times that the decisionmaker engaged in reading the record.

(c) Is the decisionmaker qualified to understand everything in the record, and if so, what are those qualifications?

(d) If so, did the decisionmaker understand everything contained in the record?

(e) What things in the record provided a rational basis for the decision not to prepare an EIS?

(f) Does the decisionmaker consider the record deficient in any way?

(g) If you answered "yes" to Interrogatory 11(f), then state with specificity in what ways the decisionmaker found the record deficient.

12. (a) When the EA and FONSI were formulated, did the [agency] have certain economic goals in mind before it began that process?

(b) Did all the alternatives considered meet those goals?

(c) For the EA and economic objectives, did you consider alternatives of no [proposed project methodology] and selective [proposed project methodology]?

13. (a) Has the [agency] made an inventory of the flora and fauna in each and every compartment that is the subject of the EA and FONSI?

(b) Has the [agency] identified all indicator species in each and every compartment that is the subject of the EA and FONSI?

(c) Have you identified and considered habitat and habitat needs for all flora and fauna as a need in the EA?

(d) Have you considered the environmental impacts of your actions on all species in the area covered by the EA and the FONSI?

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(e) Did the EA consider and plan for the entire biological community in the area covered by the EA?

14. (a) Did you consider the impacts of the proposed action on the Wilderness [name of wilderness area]?

(b) Did the agency consider the impacts of [the proposed project] on the border of the Wilderness [name of wilderness area] and on the possibility of future designated expansions by Congress?

15. (a) Has the [agency] surveyed all compartments covered by the EA to assure that any historic, cultural, or sacred site is not inadvertently demolished, substantially altered, or allowed to deteriorate significantly?

(b) Who conducted this research and what are his or her qualifications?

(c) What has the [agency] done to discover and consider possible impacts to historic, cultural, and sacred sites in the areas covered by the EA, and to insure compliance with the National Historic Preservation Act?

(d) Has the [agency] provided for evaluation and identification of appropriate sites for the National Register of Historic Places?

16. Has the [agency] identified and evaluated public issues and coordinated them with the [state] Historical Commission and local Indian Tribes?

17. Where does the [agency] reference and consider old growth in each EA or in the original EIS?

18. Identify any computer modeling programs used by the [agency] in identifying environmental factors or impacts and in making any decision regarding any of the environmental impacts identified or considered during the preparation of the EA.

19. Set forth with particularity all sampling and testing of water quality on [names of any water bodies impacted by proposed decision], including all methods used, the dates and times of the sampling, the persons involved in the sampling, the persons involved in the testing, and the results.

20. Identify each and every expert who has been consulted, retained, or employed by you in anticipation of this litigation or preparation for trial, and whom you do not expect to call as a witness at trial. State the area of expertise for which each expert was consulted.

21. Identify all possible or potential expert witnesses in this case with whom you have consulted. State the area of expertise for which each expert was consulted.

22. Identify each expert you expect to call as a witness at trial in this case. State with particularity the subject matter concerning which each expert witness is expected to testify, the substance of the facts and opinions to which each expert witness is expected to testify, and a summary for the grounds for each opinion. Identify all documents or exhibits each expert witness expects to rely upon. Identify whether any expert witness identified above has prepared any reports relating to this litigation.

23. Identify all other persons that you expect to call to testify as witnesses in this case. For each person, state with particularity the substance of that person's expected testimony, and identify all documents that related to the subject matter of that person's expected testimony.

Interrogatories from plaintiff environmental group to federal agency, regarding sufficiency of EIS

The following interrogatories are additional to those in the immediately preceding section, and are designed to be used by an individual or environmental group that is challenging the sufficiency of an Environmental Impact Statement (EIS) prepared by a federal agency. Many of the same interrogatories in

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the preceding section could also be used here, with minor modifications focusing not on the failure to prepare an EIS, but on the failure to issue an adequate EIS.

INTERROGATORIES

1. State with specificity any and all conversations, either in person or on the telephone, that the Defendant or any agent or employee of the Defendant has had with any person regarding the [the proposed project], the permit application for [the proposed project], or the permit itself.

2. State with specificity all dates and times of any and all meetings, whether formal or informal, that the Defendant or any agent or employee of the Defendant had with anyone regarding the [the proposed project], the permit application for [the proposed project], or the permit itself.

3. State with specificity all dates and times of any and all communications, whether by letter, facsimile machine (fax), or otherwise, that the Defendant or any agent or employee of the Defendant had with anyone regarding [the proposed project], the permit application for [the proposed project], or the permit itself.

4. State with specificity all participants and persons in attendance and all topics and details of any and all discussions that occurred at the meetings listed in response to Interrogatory 2 above.

5. List the name and responsibilities of any and all persons who were involved in the drafting of the permit for [the proposed project].

6. List the name, occupation, and address of any and all persons outside the employ of the Defendant who were involved in drafting the permit for [the proposed project], and state with specificity all actions taken by those persons regarding the permit.

7. List all studies undertaken by this Defendant during consideration of the permit for [the proposed project].

8. Set forth with particularity any and all conversations, meetings, or discussions among Corps personnel and anyone else that regarded political or economic influences upon the permit for [the proposed project].

9. List all studies that were relied upon by the Corps in granting the permit for [the proposed project].

10. List all studies done by the Corps regarding endangered and threatened species during the permitting process for [the proposed project].

11. Set forth with particularity any and all conversations, meetings, discussions, or communications between Corps personnel and the United States Fish and Wildlife Service regarding [the proposed project], and set forth the contents of those conversations, meetings, discussions, or communications.

12. State with specificity any and all conversations, either in person or on the telephone, that the Defendant or any agent or employee of the Defendant has had with any person regarding [the proposed project] of [corporate name], the permit application for [the proposed project], or the permit itself.

13. State with specificity all dates and times of any and all meetings, whether formal or informal, that the Defendant or any agent or employee of the Defendant had with anyone regarding [the proposed project] of [corporate name], the permit application for [the proposed project], or the permit itself.

14. State with specificity all dates and times of any and all communications, whether by letter, facsimile machine (fax), or otherwise, that the Defendant or any agent or employee of the Defendant had with anyone regarding [the proposed project] of [corporate name], the permit application for [the proposed

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project], or the permit itself.

15. State with specificity all participants and persons in attendance and all topics and details of any and all discussions that occurred at the meetings listed in response to Interrogatory 13 above.

16. List the name and responsibilities of any and all persons who were involved in drafting the permit for [the proposed project] of [corporate name].

17. List the name, occupation, and address of any and all persons outside the employ of the Defendant who were involved in drafting the permit for [the proposed project] of [corporate name], and state with specificity all actions taken by those persons regarding the permit.

18. List all studies undertaken by this Defendant during consideration of the permit for [the proposed project] of [corporate name].

19. Set forth with particularity any and all conversations, meetings, or discussions among Corps personnel and anyone else regarding political or economic influences upon the permit for [the proposed project] of [corporate name].

20. List all studies that were relied upon by the Corps in granting the permit for [the proposed project] of [corporate name].

21. List all studies done by the Corps regarding endangered and threatened species during the permitting process for [the proposed project] of [corporate name].

22. Set forth with particularity any and all conversations, meetings, discussions, or communications between Corps personnel and the United States Fish and Wildlife Service regarding [the proposed project] of [corporate name], and set forth the contents of those conversations, meetings, discussions, or communications.

23. (a) For these permits, did the Corps of Engineers consider off-site impacts?

(b) If not, explain in detail why such impacts were not considered.

(c) If so, explain in detail all methodologies, studies, research, methods, and data used in identifying and considering off-site impacts.

24. (a) For these permits, did the Corps of Engineers consider the cumulative impacts of projects taken together?


(c) If so, explain in detail all methodologies, studies, research, methods, and data used in identifying and considering those cumulative impacts.

25. (a) For these permits, did the Corps of Engineers consider the cumulative impacts of these projects along with the current impacts of the present circumstances and the present facilities of other permittees in the area?


(c) If so, explain in detail all methodologies, studies, research, methods, and data used in identifying and considering those cumulative impacts.

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26. What alternatives to permitting these projects did the Corps consider? Explain in detail how those alternatives were identified and how the various environmental impacts from each alternative were determined.

27. What mitigation measures for the proposed action of permitting these projects did the Corps consider? Explain in detail how those mitigation measures were identified and how the various environmental impacts from the proposed action will be mitigated by those measures.

ESA

ESA PROCEDURAL GIUDE AND LEGISLATION

Species Protection: Critical Legal Issues, Cosponsored by the Environmental Law Institute with the, Cooperation of the Endangered Species Committee of the ABA Section of Environment, Energy, and Resources, CITIZEN SUITS by: Eric R. Glitzenstein , Meyer Glitzenstein & Crystal, Washington, D.C., Copyright (c) 2009 The American Law Institute; Eric R. Glitzenstein

Introduction

Consistent with the statute's sweeping objectives, the Endangered Species Act (ESA) contains one of the most far-reaching citizen suit provisions that Congress has adopted in an environmental law. Section 11 of the Act provides, in pertinent part, that “any person” may “commence a civil suit” to “enjoin any person, including the United States and any other governmental instrumentality or agency (to the extent permitted by the eleventh amendment of the Constitution), who is alleged to be in violation of any provision of this chapter or regulation under the authority thereof.” It further authorizes citizen suits “against the Secretary [and by delegation the Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS)] where there is alleged a failure of the Secretary to perform any act or duty under section 1533 of this title which is not discretionary with the Secretary.” In turn, “section 1533 of this title [section 4 of the Act]” imposes obligations on the Secretary to list and designate critical habitat for endangered and threatened species, as well as to prepare and implement recovery plans for listed species.

The statute expressly vests federal district courts with jurisdiction to order the Secretary to “perform any act or duty” arising under section 4, as well as to “enforce” any “provision or regulation” with which “any person” covered by the Act must comply. The only exhaustion requirement is that 60 days' advance notice of a lawsuit must generally be provided to both the Secretary and any other “alleged violator.” Venue is in the “judicial district in which the violation occurs,” and the reviewing court “may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate.”

Although these provisions seem relatively straightforward, a number of issues concerning the ability of citizens to pursue claims for violations of the ESA have arisen—and, for the most part, now been largely resolved—in the Supreme Court and lower federal courts. This chapter will not endeavor to address every such issue or every arguably pertinent precedent; rather, it will present an overview of the law as it applies to most of the ESA-related litigation that is brought to enforce the Act's most significant substantive provisions.

Current State of the Law

Standing

As in any lawsuit filed in federal court, plaintiffs in cases arising under the ESA citizen suit provision must satisfy the “irreducible constitutional minimum of standing,” which consists of three elements: (1) there must be an “injury in fact” that is “concrete and particularized,” (2) “there must be a

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causal connection between the injury and the conduct complained of,” and (3) it must be “likely” as opposed to merely “speculative” that the injury will be redressed by a favorable decision. However, because the citizen suit provision expressly authorizes “any person” to bring suit—an “authorization of remarkable breadth when compared with the language Congress ordinarily uses”—the Supreme Court has held that plaintiffs in such cases need not satisfy any “prudential” test for standing; that is, they need not meet any “zone-of-interests test to bring their claims under the ESA's citizen-suit provision.”

Also as in any federal litigation, the “manner and degree of evidence” required to establish standing varies with the particular “stage[] of the litigation.” Thus, at the pleading stage—that is, in response to a motion to dismiss—a plaintiff in an ESA case may ordinarily rely on “general factual allegations of injury resulting from the defendant's conduct,” although, even at that preliminary stage, it is prudent to detail as much as possible in the complaint how the plaintiff is harmed by the particular ESA violation being alleged. At the summary judgment phase, it is never sufficient for plaintiffs in ESA (or any other) cases to rely on the “‘mere allegations”’ of injury in their complaints; rather, even if a standing defense is not raised by the agency and/or private defendant in the case, it is the affirmative burden of the plaintiff to proffer, by affidavit or other appropriate evidence, “‘specific facts”’ supporting the plaintiff's standing as to each of the three elements required for Article III jurisdiction.

In applying the “injury in fact” element in an ESA case, the Supreme Court has declared that “[o]f course, the desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of standing.” Accordingly, the crucial inquiry in cases involving potential impacts on an animal or plant species in the wild is whether the plaintiff seeking to advance conservation interests can allege (at the motion to dismiss stage) or proffer evidence (at the summary judgment stage) that the plaintiff has a particularized interest (whether it be aesthetic, scientific, or recreational) in the species at issue, and whether that interest is being threatened in some concrete “imminent” fashion. Hence, it is insufficient for a plaintiff to allege that she has previously visited a particular area to observe a species, because “‘past exposure to illegal conduct does not in itself show a present case or controversy.”’ Nor is it adequate for an individual to assert (even in a sworn affidavit or declaration) that she intends to return to the area at some time in the future because “[s]uch ‘some day’ intentions—without any description of concrete plans, or indeed even any specifications of when the some day will be—do not support a finding of [an] ‘actual or imminent’ injury.” Accordingly, plaintiffs in the ordinary ESA case will be on the most solid footing when they can claim to actually live or work in very close proximity to the affected species or habitat and they use the “area affected by the challenged activity” on an ongoing or recurrent basis. In contrast, plaintiffs who are far removed from the area in question must be able to point to very tangible plans to visit the area within a specified time frame.

For members of the regulated community, injury in fact may be readily established through well-pled allegations (at the motion to dismiss stage) and sworn declarations (at the summary judgment stage) that an identifiable business or economic interest will likely be adversely affected through an agency's alleged misapplication of the ESA. Indeed, the Supreme Court has declared (in an ESA case) that if the “plaintiff is himself an object” of “government action or inaction,” then “there is ordinarily little question that the action or inaction has caused him injury” within the meaning of Article III

While these general principles govern “injury in fact” assessments in most ESA cases, there are certain cases where other kinds of asserted injuries may come into play. In Lujan v. Defenders of Wildlife, the Supreme Court observed that “[i]t is clear that the person who observes or works with a particular animal threatened by a federal decision is facing perceptible harm, since the very subject of his interest will no longer exist.” Thus, for example, a scientist who has radio-collared a particular animal may assert an injury based on imminent threats to that animal. Similarly, where persons have particularized interests in individual captive animals protected by the ESA, that may also afford a basis for challenging governmental or private actions threatening those particular animals.

In addition, in some contexts, plaintiffs in ESA cases may also assert that they have been injured by being deprived of information that they are statutorily entitled to receive under particular provisions of the

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ESA. For example, such a claim of “informational injury” was sustained in a case challenging a regulation issued by the FWS authorizing persons to take several listed antelope species without having to apply for individual permits under section 10 of the Act, which affords interested persons the right to obtain documents on which permit applications are based. The plaintiffs claimed that the regulation unlawfully deprived them of the information to which they would be entitled if the section 10 process were followed, and the court agreed that, as in a case arising under the Freedom of Information Act (FOIA) and other statutes requiring the dissemination of particular information to the public, section 10 “creates a right sufficient to support standing.”

With regard to the causation and redressability elements of Article III standing, the plaintiff in an ESA who can otherwise demonstrate injury in fact need not show that compliance with a procedure required by the ESA (such as section 7's consultation requirement) will necessarily lead to better protection for the species and/or habitat at issue. It is sufficient for the plaintiff to demonstrate that violation of the statutory requirement “could impair a separate concrete interest” of the plaintiff's, that is, a “concrete” aesthetic, recreational, scientific, or similar interest in a species likely to be affected. Regardless of whether a case is challenging an agency decision of general effect, such as a regulation or management plan, or a site-specific determination, plaintiffs bear essentially the same burden of demonstrating that a violation of the ESA is likely to contribute to a concrete injury.

The Ninth Circuit has specifically held that the number of “steps” in the causal chain before harm to the plaintiff may occur is of little moment so long as it is reasonably foreseeable that the decision of general applicability will cause site-specific harms to the plaintiff's interests. On the other hand, in a National Environmental Policy Act (NEPA) case frequently cited by defendants in ESA cases, the en banc D.C. Circuit held that the larger the number of steps in the causal chain, the more difficult it is to establish causation and redressability in cases challenging rules or other agency decisions of general applicability. Of course, as in any case involving a challenge to a rule or other decision of general application, such challenges must overcome ripeness as well as standing hurdles.

Although claims may be brought directly against the FWS or NMFS for the Services' failure to properly implement section 7 of the Act, it is, at the least, prudent for the plaintiff to join the “action agency” to such suits. In Lujan v. Defenders of Wildlife, a four-Justice plurality held that, in a case challenging a Service regulation limiting the consultation requirement to agency actions within the United States and on the high seas, the plaintiff conservation groups lacked standing because they had not initially joined the federal agencies actually carrying out allegedly harmful projects in foreign countries and there was “no reason” that such agencies “should be obliged to honor an incidental legal determination the suit produced”—that is, even if a court had held that the regulation was unlawful because the consultation obligation did apply to agency actions affecting species in foreign countries, such a ruling “would not have been binding upon the agencies.”

On the other hand, in Bennett v. Spear, the Supreme Court held that when ranch operators and irrigation districts challenged a Biological Opinion issued by the FWS concerning an irrigation project operated by the Bureau of Reclamation, the plaintiffs had standing without joining the Bureau to the case because a Biological Opinion has a “powerful coercive effect on the action agency” and “alters the legal regime to which the action agency is subject.” Especially in view of the seeming tension between these rulings, plaintiffs in any section 7 case—even one directed at the Service's findings or omissions—would be well advised to join all of the action agencies that may ultimately be responsible for carrying out the action(s) of concern.

Other Jurisdictional Issues

In addition to standing questions, ripeness and mootness issues often arise in ESA cases. Ripeness issues are frequently presented when a plaintiff brings a facial challenge to a Service regulation implementing the ESA or some other agency decision of general applicability. In evaluating whether such a

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challenge is ripe, courts apply the familiar two-part test that requires the court to “evaluate (1) the fitness of the issues for judicial decision and (2) the hardship to the parties of withholding court consideration.”

At least in the D.C. Circuit, facial challenges to rules that present “purely legal” questions are deemed to be presumptively reviewable and, indeed, that court will frequently resolve them with little or no serious consideration of the hardship to the parties of withholding review. In deciding such challenges on the merits, the court considers whether “faithful application” of the rule “would carry the agency beyond its statutory mandate,” and the court does not assume that the agency will “exercise its discretion [under the rule] unlawfully.”

In contrast, mootness issues generally arise when plaintiffs in ESA cases challenge very specific actions or omissions—such as an agency's failure to consult with regard to a particular project or to comply with the ESA's deadlines in making listing decisions—and the agency defendant takes steps that arguably rectify the violation *250 after the complaint is filed but before a court has resolved the claim. Defendants in such cases bear a “heavy burden” of demonstrating that the case has been completely mooted, and the asserted violation rectified, by intervening actions. Nonetheless, where such claims are based on agency failures to carry out discrete obligations imposed by the Act, courts often find that agencies have managed to moot claims through post-complaint efforts at compliance.

As in all cases where defendants invoke a mootness defense, plaintiffs may attempt to argue that one of the recognized mootness “exceptions” applies: (1) the defendant has voluntarily ceased its allegedly unlawful conduct but could resume it once the case is dismissed or (2) the agency's unlawful conduct is “capable of repetition yet evading review.” The latter exception applies where the “duration of the challenged action is too short to allow full litigation before it ceases” and “there is a reasonable expectation that the plaintiffs will be subjected to it again.”

In Biodiversity Legal Foundation v. Badgley, a case challenging the FWS's practice, in responding to listing petitions, of delaying “substantial information findings” even past the 12-month deadline for making final decisions on such petitions, the Ninth Circuit held that the Service's post-complaint resolution of the particular petitions at issue did not moot the case. Rather, the court held that the “capable of repetition” exception applied because the “Service exhibits a pattern of making listing determinations shortly after suit is commenced,” thus affording insufficient time for judicial review, and because the plaintiffs' “litigation history with the Service, in conjunction with the pending petitions it has filed with the Service, reflects that [plaintiffs] have a reasonable expectation that they will again litigate the issue of the extent of the Service's discretion to delay a twelve-month finding.” The court held that under these circumstances, it could issue meaningful declaratory relief to the plaintiffs irrespective of whether there were any “live” petitions pending before the court.

ESA versus APA Claims Following Bennett v. Spear

In Bennett v. Spear, the Supreme Court delineated the scope of the ESA citizen suit provision, while also establishing that certain claims that do not fall within that provision may nonetheless be pursued under the Administrative Procedure Act (APA). In Bennett, the plaintiffs challenged a Biological Opinion on various grounds, including that it was contrary to the requirement of section 7 of the ESA and that it “implicitly determine[d] critical habitat without complying with” the procedures mandated by section 4 for designating critical habitat. The Court held that the latter claim did fall within the ESA citizen suit provision because section 11(g)(1)(A) of the ESA authorizes claims against the Secretary (and hence the Service) when there is “alleged a failure of the [Service] to perform any act or duty under [section 4] which is not discretionary” with the Service. Of particular importance, the Court reasoned that a claim based on the proposition that the Service had ignored the process required by section 4—including that it use the best scientific data available and that it consider economic impacts in designating critical habitat—constituted a nondiscretionary duty claim even if the agency's ultimate decision “is reviewable only for abuse of discretion.”

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Given the Court's reasoning in Bennett, most, if not all, challenges relating to the Services' implementation of their listing and critical habitat duties will be regarded by the courts as ESA, rather than APA, claims, even if the challenge may reasonably be characterized as one seeking review of a discretionary decision. For example, Association of California Water Agencies v. Evans involved a claim that NMFS, in using an “incremental effects” approach to evaluating the economic effects of critical habitat designation, had failed to perform a “proper economic impact analysis of the effects of designating a critical habitat,” as mandated by section 4(b)(2) of the Act. The government, in resisting a claim for attorneys' fees under the ESA citizen suit provision, argued that the Service's action was “discretionary” and hence judicial review could only be sought under the APA. The court, however, held that, “as in Bennett[], Defendants had the ‘categorical requirement to take into consideration the economic impact or any other relevant impact’ in the designation of critical habitat,” and thus the plaintiffs' claim that NMFS's approach failed adequately to do so was cognizable as a claim under the ESA citizen suit provision. Under this reading of Bennett, any claim that the FWS or NMFS has violated a particular provision of section 4 in the course of making a listing or a critical habitat decision should be classified as an ESA, rather than APA, claim, regardless of whether the argument is that the agency ignored the provision entirely or simply misapplied it.

By the same token, however, even a claim that may appear to implicate section 4 but that does not assert a violation of any specific section of that provision may be pursued only under the APA (and, even then, plaintiffs may have difficulties obtaining judicial review). One example involves the Services' treatment of requests for emergency listing of species. Because there is “no separate process in the ESA or its implementing regulations for requesting an ‘emergency listing’ as opposed to a non-emergency listing,” the D.C. Circuit has held that a plaintiff “had no statutory right to petition the Secretary for an emergency listing under [16 U.S.C.] § 1533(b)(7), and no right to a decision meeting any particular procedural or substantive standards.” On a request for rehearing, the court clarified that its ruling did “not resolve whether plaintiffs may seek to have the denial of an emergency listing request reviewed under the Administrative Procedure Act.”

With regard to claims that the Service has engaged in the “maladministration” of ESA provisions other than those in section 4 (and particularly a claim that the Service has issued a Biological Opinion that does not comport with section 7's requirements), Bennett holds that such claims do not come within the ambit of the ESA citizen suit provision because the Service's “conduct in implementing or enforcing the ESA is not a ‘violation’ of the ESA within the meaning of” section 11(g)(1)(A), which authorizes suit against any “‘person . . . alleged to be in violation”’ of the ESA or implementing regulations. Rather, the Court accepted the government's position that this provision only allows plaintiffs to “enforce the substantive provisions of the ESA against regulated parties—both private entities and Government agencies—but is not an alternative avenue for judicial review of the [Services'] implementation of the statute.”

At the same time, however, the Court held that the Service's issuance of an unlawful or arbitrary Biological Opinion may be challenged under the APA, which “provides a right to judicial review of all ‘final agency action[s] for which there is no other adequate remedy in a court.”’ The Court reasoned that “[n]othing in the ESA's citizen-suit provision expressly precludes review under the APA,” nor is there is anything “in the statutory scheme suggesting a purpose to do so”; in addition, Biological Opinions constitute “final agency actions” within the meaning of the APA because the Opinions (and the accompanying incidental take statements) represent the “consummation” of the Service's analysis of a project's impacts on listed species and also “alter the legal regime to which the agency action is subject.”

The upshot of Bennett, therefore, is that certain violations of the ESA must be pled under the ESA citizen suit provision, and others must be pled under the APA. When the claim is that an agency is taking an action in violation of section 7—either by failing to consult at all or by relying on a faulty Biological Opinion (or concurrence in a “not likely to adversely affect” determination) issued by one of the Services—that claim is properly pled under the ESA citizen suit provision. Likewise, a claim that a party—whether a private entity or government agency—is taking a species in violation of section 9 must be pled as an ESA citizen suit. On the other hand, except for violations of section 4—that is, the Services' failures to comply with their section 4 duties to list species, designate critical habitats, or prepare or carry out recovery plans

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—claims against the Services concerning their implementation of the Act must be pled as APA claims. Most important, this means that challenges to all decision documents issued by the Services in implementing section 7—that is, Service concurrences in “not likely to adversely affect” determinations by action agencies, along with Biological Opinions themselves—as well as Incidental Take Permits and other permits issued by the Services under section 10 of the Act must be pled and pursued as APA claims.Although Bennett appears to counsel that all claims that a Service has violated its section 4 obligations in the course of making a listing or critical habitat decision (whether a positive or negative decision) should be pled as ESA, rather than APA, claims, in one recent case a court held that a challenge to the FWS's refusal to list a species was properly pled as an APA claim and hence did not have to be preceded by the provision of 60 days' notice to the Secretary. The court reasoned that the Service's listing decision was a “discretionary duty under the ESA,” and that “[b]ecause this suit is brought under the APA, to review a discretionary decision of the FWS, Bennett dictates that the ESA notice requirement does not apply.”

Plaintiffs should approach this ruling with caution, especially in view of the legal basis on which the court in that case actually ruled for the conservation group challenging a listing decision. The court held that the FWS had failed to comply with its statutory obligation to use the “‘best science”’ available in making its listing decision. In Bennett, however, the Supreme Court held that a claim that the Service had failed to consider the best available science (in the course of making a decision on critical habitat designation) did implicate a nondiscretionary section 4 duty and hence fell within the ESA *253 citizen suit provision. Accordingly, plaintiffs contemplating any claims implicating section 4 duties would be well-advised to provide 60 days' advance notice and to plead their claims under the ESA citizen suit provision and, in the alternative, under the APA. This approach also ensures that the plaintiff may avail itself of the more generous attorneys' fees provision that is triggered for ESA claims.

Properly categorizing a particular claim is crucial because substantial legal and practical consequences attach to the classification. As noted, ESA claims must generally be preceded by 60 days' advance notice to the Secretary and any alleged violator, whereas there is no exhaustion requirement before an APA claim may be filed. On the other hand, plaintiffs bringing ESA claims need not satisfy any zone-of-interests standing test, whereas plaintiffs bringing APA claims must do so.

Of even greater practical consequence, as Bennett makes clear, APA claims (except for those, discussed below, seeking review of “unreasonable” agency delay under 5 U.S.C. § 706(1)) may seek judicial review only of Service decisions constituting “final agency actions,” whereas claims brought under the ESA citizen suit provision should not be confined by that limitation. Indeed, in explaining why it was declining to construe the term “violation” in the citizen suit provision to encompass “any errors on the part of the [Services] in administering the ESA,” the Supreme Court in Bennett stated that this would “effect a wholesale abrogation of the APA's ‘final agency action’ requirement” and that “[a]ny procedural default, even one that had not yet resulted in a final disposition of the matter at issue, would form the basis for a lawsuit.” The necessary implication of this language would appear to be that for those claims that do fall within the citizen suit provision—such as claims that action agencies have violated section 7—a lawsuit may be pursued without meeting the APA's “final agency action” requirement.

In one recent case, however, a district court held that even an action brought under the ESA's citizen suit provision must satisfy the “final agency action” requirement. In Defenders of Wildlife v. Gutierrez, the plaintiffs challenged the Coast Guard's failure to engage in any section 7 consultation with respect to the establishment of “traffic separation schemes” that could adversely affect the northern right whale. Although this claim fell squarely within the ESA citizen suit provision, the court held that the plaintiffs were required to demonstrate that the Coast Guard had engaged in “final agency actions that are reviewable under the APA.” On appeal, the D.C. Circuit found it “unnecessary to resolve” the issue of “whether ‘agency action’ or ‘final agency action’ is required in order to bring suit under the citizen-suit provision of the ESA” because the court found that the plaintiffs were “challenging final agency action by the Coast Guard” in any event.

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Another important ramification of claim classification is that plaintiffs who prevail in ESA claims may recover fees under the generous fee provision set forth in the ESA citizen suit provision, whereas plaintiffs who prevail on APA claims are restricted to seeking recovery under the Equal Access to Justice Act (EAJA). Among other significant differences, EAJA limits fee awards to a “prevailing party,” whereas the ESA citizen suit provision authorizes the court to award fees “whenever the court determines such award is appropriate.” This means that plaintiffs prevailing on ESA claims may recover fees when they have not obtained any actual judgment or court-ordered relief in their favor, but they can establish that their lawsuit served as a “catalyst” for a sought-after change in the defendant's conduct. On the other hand, because the Supreme Court has construed the term “prevailing party” to foreclose a fee award for a party that has failed to secure either an “enforceable judgment on the merits” or a “court-ordered consent decree,” plaintiffs prevailing on APA claims cannot recover fees based on the catalyst theory. In addition, EAJA limits the parties that are eligible for a fee award, and also restricts the rates that may be assessedwhereas the ESA citizen suit provision contains no such restrictions. EAJA further provides that the court must deny an award when the government can establish that its legal position, though erroneous, was “substantially justified or that special circumstances make an award unjust,” whereas the pertinent ESA provision contains no such proviso.

When a claim is based on the FWS's or NMFS's failure to carry out an action that is required by section 4, but need not be carried out by a date certain— in other words, the duty is nondiscretionary but the specific time for compliance is not statutorily delineated—several courts have viewed such claims as arising under the APA's “unreasonable delay” provisions rather than under the ESA citizen suit provision. For example, one case addressed the Services' duty to revise a critical habitat designation in light of an obligation that the agency had imposed on itself (in a Recovery Plan) to carry out the revision. The court reasoned that only the FWS's failure to carry out a “clearly-mandated nondiscretionary duty must form the basis” for a suit under the ESA citizen suit provision; hence, because the Service had “some discretion” under the ESA as to when to carry out a critical habitat revision the agency had deemed necessary, the plaintiffs' claims were cognizable only under the APA, which imposes on agencies “merely a ‘general duty of timeliness”’ in carrying out a “required action.” Other courts have pursued a similar analysis in the context of claims that agencies failed to carry out ESA-related obligations.

In contrast, one court has held that a claim of agency delay in carrying out a duty arguably imposed by section 4 could not be brought under either the ESA citizen suit provision or the APA. In that case, the plaintiffs had argued that the Recovery Plan for the grizzly bear required the FWS to initiate a NEPA process to evaluate methods for recovering a particularly imperiled population and that the Service had unlawfully and unreasonably delayed in carrying out that duty. Consistent with other cases, the court held that such a claim could not be brought under the ESA citizen suit provision. But in conflict with those rulings, the court further held that the claim could not be pursued under the APA because section 4 does not impose any specific deadline by when duties imposed by recovery plans must be carried out.

In reaching that conclusion, however, the court relied heavily on a D.C. Circuit ruling, Sierra Club v. Thomas, which analyzed different kinds of unlawful agency delay claims in the Clean Air Act context, and held that a claim that an agency has failed to carry out a specific legal duty under a statute that lacks a “readily ascertainable deadline” for the action should be brought as an APA claim. Sierra Club, in turn, is generally consistent with Norton v. Southern Utah Wilderness Alliance, which held that unreasonable delay claims under the APA must be based on allegations that “an agency has failed to take a discrete agency action that it is required to take.” This test does not require a date-certain deadline for agency action, but does foreclose “broad programmatic attack[s]” on agencies' failures to carry out general statutory mandates, and also requires that unreasonable delay claims be predicated on unequivocal obligations imposed by statute or that agencies have imposed on themselves through regulations or other formal documents.

Standard of Review

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Regardless of whether a claim comes within the ESA citizen suit provision or the APA, courts employ the same standard of review in assessing the legality of an agency's decision implementing the Act. Thus, because the citizen suit provision sets forth no separate standard of review, even where courts are called on to review actions that are clearly encompassed within the citizen suit provision, they apply the standard of review in section 706(2)(A) of the APA, which directs that agency actions be set aside when they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” In addition, in evaluating whether the Services or action agencies have acted in “accordance with law,” courts apply the familiar two-step Chevron framework, which requires the court to assess (1) whether the court can infer, based on “traditional tools” of statutory interpretation (including legislative history), a clear congressional intention on the specific issue before the court and, if not, (2) whether the agency has adopted a “permissible” construction of the statutory provision at issue.

Likewise, in reviewing all agency decisions—including those that are challengeable under the ESA's citizen suit provision—courts do not engage in de novo review but, rather, generally confine themselves to review of the administrative record that was before the agency at the time of its decision, in accordance with standard APA principles. As in any case involving record review, however, courts in ESA cases occasionally find that particular documents fall within one of the recognized exceptions to the record review principle. Most important, some courts have permitted de novo affidavits or other extra-record materials in order to “allow the court to ‘understand the issues more clearly”’ in a complex case involving difficult scientific principles, as well as to assess whether “‘the agency failed to consider factors which are relevant to its final decision.”’ Courts may also consider extra-record materials in deciding whether to craft equitable relief and, in rare cases, may authorize a de novo factual investigation, including discovery, “where there is initially ‘a strong showing of bad faith or improper behavior’ by the agency.”

As in other administrative law cases, there are often disputes in ESA cases as to what actually does constitute the record for purposes of judicial review. While it is well established that the reviewing court must consider the “‘full administrative record before the [decision maker] at the time” of the decision, this does not mean that the record necessarily consists of only “those documents that the agency has compiled and submitted as ‘the’ administrative record.” Although the agency is afforded a “presumption that it properly designated the administrative record,” the agency may not “unilaterally determine what constitutes” the record; rather, the presumption of regularity can be rebutted where one of the other parties to the litigation demonstrates that particular documents that were “before” the agency at the time of decision have been omitted because, for example, they were unfavorable to the agency's position.

One important record-related issue that frequently arises in ESA litigation is the extent to which agencies (and particularly the Services) may invoke the deliberative process privilege as a basis for withholding from the reviewing court materials that would otherwise be deemed part of the record. Several courts have held that the privilege—which “is centrally concerned with protecting the process by which policy is formulated”—cannot generally be invoked to withhold documents generated during the section 7 consultation process. These courts have reasoned that although “scientific expertise” is brought to bear on the process, it is insufficiently connected to any “policy-oriented judgment” to implicate the underlying purpose of the deliberative process privilege.

In addition, in a FOIA case, a court rejected the government's argument that an action agency's Biological Assessment could be withheld as predecisional because it was part of “one long deliberative process” required by section 7 that did not end until after the action agency makes a “final decision after it receives the biological opinion from FWS.” The court held, instead, that the Biological Assessment was the “consummation of the [agency's] decision making process up to the time it submitted the assessment to FWS to initiate a formal consultation,” and hence the Assessment “constitutes a final agency opinion and is, therefore, releasable to the public under the principles of FOIA.”

In contrast, in several cases concerning listing and critical habitat designation decisions, several courts have allowed the Services to invoke the deliberative process privilege more broadly. A district court, for example, allowed e-mails and other “internal” documents to be withheld from the record, reasoning

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that the documents “were generated as part of the deliberative process by which the listing decision was made and their disclosure to the public would expose that process in a way to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions.”

Venue/Transfer Issues

With regard to claims that fall within the ESA citizen suit provision, the ESA provides that such claims may be brought “in the district in which the violation occurs.” APA claims based on ESA violations are governed by the general venue provision that applies to civil actions in federal courts. Such cases—in which a “defendant is an officer or employee of the United States or any agency thereof acting in his official capacity” or an “agency of the United States”—may “be brought in any judicial district in which (1) a defendant in the action resides, (2) a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of [the] property that is the subject of the action is situated, or (3) the plaintiff resides.”

As a practical matter, this means that section 9 claims against nonfederal entities may certainly be brought where the unlawful “taking” is allegedly occurring, and perhaps where the decisions were made to proceed with actions that violate section 9, because those are the arguable locations where the “violation occurs” for purposes of such claims. For other claims covered by the ESA citizen suit provision—claims asserting violations of section 4 by the Services, or violations of sections 7 and 9 by action agencies—the violation arguably “occurs” (and hence venue is proper under the ESA venue provision) either in the area where the species is affected, or where the relevant agency decision makers are located. This means that such suits may be brought in the District of Columbia as well as any regional office with significant responsibility over the particular decision.

Likewise, for APA-based claims—principally those brought against the Services for “maladministering” sections 7 and 10 of the ESA—suit may be brought in the District of Columbia (because that is where the “defendant” agency “resides”), in the area where the affected species exists (because that is where the “property that is the subject of the action is situated”), and arguably in the district where a regional office responsible for the particular action is located (because that is where a “defendant” “resides” if suit is brought against a regional official and/or where a “substantial part of the events or omissions giving rise to the claim occurred”). In addition, venue over APA-based claims is proper in any location in which at least one of the plaintiffs “resides.”

A federal claim that is filed in a district where venue is proper may nonetheless be transferred “to any other district or division where it might have been brought.” The standard for such a transfer is that it must be “[f]or the convenience of the parties and witnesses” and “in the interest of justice.” In ESA cases, the vast majority of transfer issues have arisen when cases were filed in Washington, D.C., and agency defendants (and/or private intervenors) moved to transfer to another location where the case could have been brought and was evidently regarded by the defendant as a more hospitable forum. Although the Supreme Court has said that there is “ordinarily a strong presumption in favor of the plaintiff's choice of forum,” the decision on transfer is committed to the broad discretion of the district court.

Accordingly, courts consider a wide variety of factors in ruling on transfer motions, including the location and convenience of the parties and witnesses, the court's ability to resolve the particular case based on an administrative record, and whether the case is deemed to involve a “localized controversy” rather than an issue of national concern.

Given the inherently discretionary nature of transfer decisions, it is difficult to distill from the case law any clear criteria that will serve as reliable predictors of whether a particular case will be transferred. As a general matter, however, D.C. judges are somewhat less inclined to transfer cases pertaining to the Services' listing and critical habitat decisions than cases involving challenges to permitting, licensing, or funding decisions involving particular projects located in other parts of the country.

60-Day Notice Requirement

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For cases that fall within the ESA's citizen suit provision, the provision's 60-day notice requirement is jurisdictional—the requirement cannot be waived by courts on equitable or any other grounds. Accordingly, unless adequate notice is afforded to both the relevant Secretary and to any other alleged violator of the Act, there is an “absolute bar to bringing suit under the ESA.” Thus, the principal issue that arises with regard to the notice provision is whether the notice letter sufficiently identifies the issue over which suit is brought.

While there is no hard and fast rule on how detailed the notice must be, the basic principle endorsed by the courts is that the notice must “provide sufficient information of a violation so that the Secretary or [action agency] could identify and attempt to abate the violation.” Accordingly, the notice should, at the least, identify each listed species the plaintiff intends to sue over, each specific agency action that may form the basis of a claim, and each provision of the ESA the plaintiff claims has been violated. When the plaintiff intends to seek relief for an ongoing pattern or practice of agency conduct that allegedly violates the ESA—such as a recurrent failure to engage in section 7 consultation with respect to a particular kind of agency action—the notice letter should also make that clear.

Intervention

In ESA cases, as in other civil litigation, district courts apply a four-part test to determine whether a party may intervene as of right under Federal Rule of Civil Procedure 24(a): (1) the motion to intervene must be timely; (2) the applicant for intervention must have a protectable interest relating to the property or transaction that is the subject of the action; (3) the applicant must be so situated that the disposition of the action may, as a practical matter, impair or impede the applicant's ability to protect that interest; and (4) the applicant's interest must not be adequately represented by the existing parties in the lawsuit. The circuits vary considerably, however, in how stringently they apply various features of that test. Accordingly, it is essential for any prospective applicant for intervention—whether it be a conservation group or a business interest—to become conversant with the particular manner in which each circuit approaches the intervention standards and to frame the intervention motion accordingly.

Most important, although the Supreme Court has held that the burden of showing inadequacy of representation by existing parties is “minimal,” and that the applicant need only demonstrate that representation of its interests by existing parties “may be” inadequate, in some circuits it is far more difficult to shoulder this “minimal” burden than in others. For example, in the Ninth, Tenth, and D.C. Circuits, it is relatively easy for would-be intervenors to establish that an agency defendant may *259 not fully represent either a conservation group's interest in species preservation or a business's economic interest. In contrast, it is much more difficult to establish that an agency's representation may be inadequate in the First Circuit.

Relief

In its seminal ruling in TVA v. Hill, the Supreme Court held that, in enacting the ESA, Congress intended to deprive the courts of their ordinary equitable discretion in crafting relief for legal violations. Accordingly, in that case—in which it was conceded that the operation of the Tellico dam would likely cause the extinction of the snail darter—the Court held that injunctive relief against dam operation was required without the courts engaging in the equitable balancing that generally must precede the issuance of injunctive relief. The Court reasoned that, in enacting the ESA, “Congress has spoken in the plainest of words, making it abundantly clear that the balance [of equities] has been struck in favor of affording endangered species the highest of priorities.”

In view of Hill, lower courts have generally held that appropriate injunctive relief must be fashioned for violations of any the substantive prohibitions in the ESA—for example, the prohibitions on jeopardizing species and impairing critical habitat embodied in section 7, or the unauthorized prohibition on taking species in section 9. Similarly, the case law establishes that the “remedy for a substantial procedural

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violation of the ESA—a violation that is not technical or de minimis—must [also] be an injunction of the project pending compliance with the ESA.” Hence, when an action agency fails to follow the consultation process mandated by section 7, courts will ordinarily issue injunctions against the actions that should have undergone consultation, on the grounds that the “purpose of the consultation process [] is to prevent later substantive violations of the ESA.” Likewise, when the FWS or NMFS fails to abide by the time frames set forth in section 4 for making listing or critical habitat decisions, courts have determined that injunctive relief must be fashioned to bring the agency into compliance.

This does not mean that a court lacks any discretion in crafting relief for an ESA violation; in deciding precisely what kind of injunctive (and/or declaratory) relief to fashion, a court may consider the nature of the ESA violation and how the purposes of the ESA would best be served under the particular circumstances. For example, notwithstanding a finding of a violation of the section 7 consultation process, the Ninth Circuit has “allowed nonjeopardizing agency actions to continue during the consultation process,” while making clear that the agency—the “entity that has violated its statutory duty”—bears a heavy burden of proving that a particular action is “nonjeopardizing.” Similarly, while courts have held that the Services' plea of inadequate resources cannot be relied on to avoid injunctive relief for a violation of one of the section 4 deadlines for decisions on listing or critical habitat designation, a court may take resource capabilities into account in determining the nature of the required injunctive relief, that is, exactly how much time to allow the Service to bring itself into compliance.

The courts' approach to the crafting of injunctive relief for ESA violations is largely the same in the context of requests for preliminary and permanent relief. Thus, when a court discerns a likely violation of the ESA that poses the potential for irreparable harm to a listed species, preliminary injunctive relief will ordinarily be forthcoming irrespective of the economic arguments or any other equitable factors counseling against such relief. Indeed, in appropriate circumstances, courts will fashion preliminary injunctions that require affirmative changes in agency conduct— ones that alter, rather than maintain, the status quo—when that is necessary to prevent irreparable harm to listed species. Once again, however, courts may consider economic and related interests in determining whether the specific injunctive relief sought by plaintiffs is broader than necessary to protect species while the court is resolving the merits and considering what kind of permanent relief may be appropriate.

Emerging Issues and Future Directions

As the foregoing discussion reflects, while some legal issues bearing on the pursuit of citizen suits under the ESA (as well as under the APA for violations of the ESA) are still being fleshed out in the courts, for the most part the law is now well settled, particularly because of Supreme Court rulings that provide a fairly clear blueprint as to how these kinds of cases should (and should not) be brought. Nonetheless, there are several issues that have thus far received relatively little attention, but that may grow in importance in coming years.

As noted previously, there is some confusion in the current case law as to the extent to which APA principles and restrictions should be incorporated into the resolution of claims that are properly brought under the ESA's citizen suit provision. While the case law is consistent that reviewing courts should borrow the APA's standard of review in assessing, for example, listing and critical habitat decisions (because the ESA sets forth no other standard of review), the government is now going considerably further and arguing that significant limitations on review of agency action under the APA—and particularly the APA's requirement that agency action must be deemed “final” before it can be reviewed—should also be incorporated into the courts' consideration of claims brought under the ESA citizen suit provision. Although Bennett v. Spear appears to conflict with that argument, it has been adopted by at least one district court and was then sidestepped by the D.C. Circuit on appeal. Accordingly, there is likely to be further litigation on that issue in the future.

There have also been several recent district court cases holding that although claims may be brought under the ESA citizen suit provision against violators of the statute itself and the Services'

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implementing regulations, such claims cannot be predicated on violations of permits issued by the Services under the ESA. In one such case—which has since been vacated by the 11th Circuit on mootness grounds—the United States District Court for the Middle District of Florida held that the plaintiff could not bring a citizen suit based on an asserted violation of an “incidental take” permit issued under section 10(a)(1)(B) of the Act. The court reasoned that the ESA provides that various provisions of the ESA refer to enforcement of permit conditions by the “Secretary,” but that “[i]n comparison, the ESA's citizen suit provision provides, in relevant part, for suits to enjoin violations only of the ESA and related regulations. The ESA, itself, simply does not provide a private enforcement mechanism covering the terms and conditions of incidental take permits.”

That ruling was relied on by another district court to hold that plaintiffs also could not base a claim on violations of permits authorizing otherwise prohibited activities that the Service has found will “enhance the propagation or survival of the affected species.” The court similarly reasoned that “[b]y specifically referencing permits” in various enforcement provisions of section 11 for which the Secretary has responsibility (relating to civil enforcement, criminal sanctions, administrative or judicial seizure and forfeiture), “but not referencing permits in subsection (g) (pertaining to citizen suits), Congress evidenced its intent to preclude private parties from permit enforcement.”

Although these rulings are ostensibly based on the plain terms of the ESA's citizen suit provision, on close inspection, they are in tension with the statutory language. Both rulings acknowledge that under the Act, citizen suits may be based on violations of the ESA implementing regulations. In both cases, moreover, the plaintiffs specifically argued that the regulations themselves were violated because there were violations of ESA permits at issue. Indeed, as acknowledged in Atlantic Green Sea Turtle, one such regulation flatly “requires ‘[a]ny person holding a permit under [the ESA] and any person acting under authority of such permit [to] comply with all conditions of the permit and with all applicable laws and regulations governing the permitted activity.”’

Yet neither ruling clearly explains why a citizen suit cannot be based on asserted violations of the regulations, as authorized by the plain terms of the citizen suit provision—that is, why ESA regulations mandating compliance with general or specific permit conditions cannot be the basis for a citizen suit even if permit violations, standing by themselves, could not form the foundation for such a suit. More important, neither ruling makes any effort to explain why Congress would have adopted what the Supreme Court has characterized as a citizen suit provision of “remarkable breadth when compared with the language Congress ordinarily uses” in such provisions if it had also intended to foreclose all citizen suits in any way tied to permit violations. Accordingly, other courts may decline to follow these rulings, especially as their full practical ramifications for effective enforcement of the ESA become evident.

Conclusion

Citizen suits have been crucial to the enforcement of the ESA and they will continue to play a vital role in the Act's implementation regardless of who controls the political branches of government. Indeed, as the world's wildlife is increasingly jeopardized by climate change, habitat destruction, invasive species, and other grave threats, the federal courts will likely be asked to play even more of a role in construing and applying the Act's vital safeguards. While some may bemoan the central function played by the courts, the fact is that Congress saw fit to create a sweeping citizen suit provision in the ESA, and those seeking to stave off extinctions as well as those affected by the economic impacts of species preservation efforts will continue to call on the judiciary for redress, especially if the political branches are unwilling or unable to devise effective solutions to the far-reaching problems plaguing imperiled wildlife.

ESA SAMPLE DOCUMENTS

ESA DISCOVERY AIDS

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CWA/CIRCLA

CWA/CIRCLA LEGISLATION

Rough breakdown of CERCLA liability as pertains to the Canaervon and Davis Pond Diversions By: Kellyn Elmer and Jennifer Mayberry

CERCLA regulates when there is a release or substantial threat of a release of a hazardous substance from a vessel or facility.

CWA and CERCLA (release + hazardous substance)

CWA toxic substances are subject to CERCLA liability.

List of CWA toxic substances: 40 C.F.R. § 401.15

§ 401.15 Toxic pollutants.

The following comprise the list of toxic pollutants designated pursuant to section 307(a)(1) of the Act:

1. Acenaphthene2. Acrolein3. Acrylonitrile4. Aldrin/Dieldrin1

5. Antimony and compounds2

6. Arsenic and compounds7. Asbestos8. Benzene9. Benzidine1

10. Beryllium and compounds11. Cadmium and compounds12. Carbon tetrachloride13. Chlordane (technical mixture and metabolites)14. Chlorinated benzenes (other than di-chlorobenzenes)15. Chlorinated ethanes (including 1,2–di–chloroethane, 1,1,1–trichloroethane, and hexachloroethane)16. Chloroalkyl ethers (chloroethyl and mixed ethers)17. Chlorinated naphthalene18. Chlorinated phenols (other than those listed elsewhere; includes trichlorophenols and chlorinated cresols)19. Chloroform20. 2–chlorophenol21. Chromium and compounds22. Copper and compounds23. Cyanides24. DDT and metabolites1

25. Dichlorobenzenes (1,2–, 1,3–, and 1,4–di–chlorobenzenes)26. Dichlorobenzidine27. Dichloroethylenes (1,1–, and 1,2–dichloroethylene)28. 2,4–dichlorophenol29. Dichloropropane and dichloropropene30. 2,4–dimethylphenol

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31. Dinitrotoluene32. Diphenylhydrazine33. Endosulfan and metabolites34. Endrin and metabolites1

35. Ethylbenzene36. Fluoranthene37. Haloethers (other than those listed elsewhere; includes chlorophenylphenyl ethers, bromophenylphenyl ether, bis(dichloroisopropyl) ether, bis-(chloroethoxy) methane and polychlorinated diphenyl ethers)38. Halomethanes (other than those listed elsewhere; includes methylene chloride, methylchloride, methylbromide, bromoform, dichlorobromomethane39. Heptachlor and metabolites40. Hexachlorobutadiene41. Hexachlorocyclohexane42. Hexachlorocyclopentadiene43. Isophorone44. Lead and compounds45. Mercury and compounds46. Naphthalene47. Nickel and compounds48. Nitrobenzene49. Nitrophenols (including 2,4–dinitrophenol, dinitrocresol)50. Nitrosamines51. Pentachlorophenol52. Phenol53. Phthalate esters54. Polychlorinated biphenyls (PCBs)1

55. Polynuclear aromatic hydrocarbons (including benzanthracenes, benzopyrenes, benzofluoranthene, chrysenes, dibenz-anthracenes, and indenopyrenes)56. Selenium and compounds57. Silver and compounds58. 2,3,7,8–tetrachlorodibenzo-p-dioxin (TCDD)59. Tetrachloroethylene60. Thallium and compounds61. Toluene62. Toxaphene1

63. Trichloroethylene64. Vinyl chloride65. Zinc and compounds

Some of the listed hazardous substances have been expressly identified as being dispersed from the diversion. Other substances that are identified look as though they might fall under some of these categories, but someone with a background in Chemistry would have to look at them to be sure.

Here are our findings from the documents. The bolded words indicate substances that are expressly on the list: (See Next Page)

Environmental Impact Statement, pg. 90 (This is from the final EIS)

Section 6.8.1.13

“The greatest potential adverse impacts of the proposed freshwater diversions are related to the high levels of pollutants in the Mississippi River. The river often contains high levels of plant nutrients, heavy metals, phenols, pesticides, polychlorinated biphenyls, and other alien compounds. Extensive information

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concerning levels of these pollutants can be found in Appendix H, Water Quality. The following discussion identifies potential impacts of these substances on fish and other aquatic organisms and identifies areas of concern.”

6.8.1.18 – “A variety of agricultural and industrial chemicals, such as pesticides and volatile and semivolatile organic compounds occur in the Mississippi River. Only limited data on the occurrence of many of these compounds is available.”

EIS -- 92

6.8.1.20 – “A variety of industrial compounds present in the river in the Baton Rouge to New Orleans Industrial Corridor are known or suspected carcinogens. Because methods have not been established to determine a threshold for carcinogenic effects, the Environmental Protection Agency policy is that there is no scientific basis for estimating “safe” levels of carcinogens. Therefore, the recommended ambient water concentration for carcinogens for maximum protection of human health is zero.”

EIS – 93

6.8.1.21 –

organochlorine insecticidelindane (most common), Chlordane, DDT (DDD and DDE as well), dieldrin, heptachlor, endosulfanorganophosphorus insecticidesdiazinon, parathion

EIS – 93

6.8.1.23 – “Trace metals and inorganics enter surface waters via several routes and from several sources. Trace metals and selected trace inroganics routinely detected in the Mississippi River include arsenic, cadmium, chromium, copper, iron, lead, manganese, mercury, nickel, and zinc. Copper, zinc, iron, and mercury have occasionally been detected at relatively high levels, considering the enormous dilution capacity of the river. Data contained in the Water Quality Appendix (Appendix H) present relative concentrations several “priority pollutants” including trace metals and inorganics detected in surface water, fish tissue, and sediment. None of the fish tissue concentrations were above Food and Drug Adminstration action levels. EIS – 94-956.8.1.24 – “In the Water Quality Appendix, concentration of six selected trace metal in the prospective receiving areas were compared to EPA fresh-and saltwater criteria. Examination of the data indicated that concentration of cadmium, copper, lead, mercury, nickel, and zinc do not frequently exceed the maximum fresh- or saltwater criteria except for copper, Copper levels are relatively high in both receiving areas.” Then it explains that levels of these substances “exceed 24-hour criteria” – and I’m not quite sure what that even means.

EIS – 95

6.8.1.26 – Fish for Mississippi River analyzed for heavy metals – average concentration found did not exceed FDA action levels, but there were individual instances where action levels were exceeded.

EIS – 95

Table 6-8-3 shows river fish concentration levels, with those of concern underlined

EIS – p 96

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Interim Report : Canearvon Freshwater Diversion Contimanants Monitoring Study

Table 5 gives data for elements found in fish tissue in 1990, and table 6 provides data for 1991 after operation of the diversion, looking at the tables side by side, LEAD went from a “below detectible limits” in Big Mar and Bay Gardene to a readable amount, and the same with the MS River data (?) – can include these, but I’m not sure how to read the data – but it’s clear that during this time the ppm of elements found in fish tissue rose in the diversion areas, and in the River as well – not sure why this would be....a number of other elements also increased in these areas from 1990 – 1991, but These appear on pages 13-16 of the report

Vessel or Facilities (includes structures)

The diversion projects would be a structure releasing hazardous materials into the wetlands

CERCLA liability

Strict liability to any Potentially Responsible Party (PRP)

PRPs include:

Generators; Owners and operators; Past owners and operators; and TransportersThe government here might be charged as an operator or perhaps a transporter. Municipalities may be liable just as any other person under section 107 of CERCLA. See B.F. Goodrich Co. v. Murtha, 958 F.2d 1192 (2d Cir. 1992).

Issues:

Whether the wetland area comprising of the Caernarvon Diversion is a “water of the United States” as defined by the CWA?

Whether diverting Mississippi River water containing pollutants from the River into the diversion is an “addition… to navigable waters” of that pollutant.

Is the Caernarvon Diversion in fact a navigable water way?

Whether the unitary waters theory applies, therefore making regulation under the CWA inapplicable?

Rules:

Congress enacted the Clean Water Act to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. §1251. To accomplish this goal, the CWA prohibits “the discharge of any pollutant by any person,” unless in compliance with §402 or §404.

“Discharge” is defined as “any addition of any pollutant to navigable waters from any point source.” §1362(12)(A).

“Point source” is defined as “any discernable, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container…” §1362(14).

Under §402, the Administrator of the EPA may issue permits authorizing the discharge of pollutants in accordance with specified conditions. §1342(a). “The authority to administer the NPDES permit system

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may be delegated to a state or regional agency where the state or regional regulatory scheme meets certain criteria.” §1342(b).

Under §404, the Secretary may issue permits “for the discharge of dredged and fill material into the navigable waters.” §1344(a).

The NPDES permit regime requires compliance with numerous provisions such as effluent limitations, water-quality standards, water monitoring obligations, public reporting mechanisms, and certain discharge requirements. See §1342(a).

Facts:

Canals/trenches divert water from the Mississippi River into the Carnarvon Diversion in order to facilitate wetland regrowth. It is undisputed that the agricultural, urban and industrial runoff into the Mississippi River contain “pollutants,” that the Mississippi is considered part of the “nations waters,” and that the canals/trenches that divert the river water into the diversion are “point sources” within the meaning of the Act.

The permitting requirement does not apply unless the waters are meaningfully distinct. S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe, 541 U.S. 95 at 112 (2004).

Is this still good law?

Waters Transfer Rule/Unitary Waters theory

The “unitary waters” theory holds that it is not an ‘‘addition… to navigable waters’ to move existing pollutants from one navigable water to another, and that all bodies of water which fall within the CWA’s definition of “navigable waters” are inseparable parts of a single whole. See ONRC Action v. U.S. Bureau of Reclamation. An addition occurs, under this theory, only when pollutants first enter navigable waters from a point source, not when they are moved between navigable waters.” Miccosukee, 541 U.S. at 110.

Between 1991 and 2006, “the unitary waters theory, its premise, or both, were considered and rejected by the First, Second, Ninth, and Eleventh Circuit Courts of Appeal.” ONRC Action.

EPA’s water transfers rule is meant to “clarify that water transfers are not subject to regulation under the [NPDES] permitting program. This rule defines water transfers as an activity that conveys or connects waters of the United States without subjecting the transferred water to intervening industrial, municipal, or commercial use. NPDES Water Transfers Rule, 73 Fed. Reg. 33,697-708 (June 13, 2008) (codified at 40 C.F.R. § 122.3(i)).

In Friends of the Earth v. South Florida Water Management District, the 11th Circuit found that the phrase “…” was ambiguous, and therefore gave Chevron deference to the EPA’s interpretation found in the Unitary waters theory. The court accepted the unitary waters theory that transferring pollutants between navigable waters is not an “addition… to navigable waters,” because it is a permissible construction of that language.

in that case argued that the agency was not entitled to Chevron deference because the meaning of the Π“addition… to navigable waters” language is not ambiguous and forecloses on the unitary waters theory. Court rejected, found there were multiple interpretations, the very definition of ambiguous.

Cases relied upon by ∆’s that found “discharge of pollutant” language ambiguous, 11th Cir. Found cases inapplicable

National Wildlife Federation v. Consumer Powers Co., 862 F.2d 580 (6th Cir. 1988)

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National Wildlife Federation v. Gorsuch, 693 F.2d 156 (D.C. Cir. 1982)

CWA Memo: navigable waterways by: Eva Conner

For a body of water to fall under the jurisdiction of the Clean Water Act (CWA), it must be a navigable water of the United States. The Supreme Court has found in multiple cases that the term navigable waters, as used in the CWA, is broader than the traditional definition. The traditional definition of navigable waters required that the water either be navigable in fact, or susceptible of being rendered navigable.1 However, for the purposes of the CWA, the Supreme Court has developed a separate definition.

The Supreme Court has examined the term navigable waters, as used by the CWA, only a couple times. The first case was U.S. v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985), which found that wetlands that directly abutted a navigable creek were navigable for the CWA. The Court noted the Corps’ regulatory conclusion that the wetlands impacted water quality by filtering water, slowing runoff into lakes, and providing a habitant for the wetland species, and upheld it under Chevron deference. However, they also specifically questioned whether or not the Corps’ authority to regulate wetlands would extend to those areas not adjacent to open waters. The second case was Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001), (“SWANCC”), where the Corps tried to claim regulatory authority under the CWA (meaning the water must be termed navigable) over a series of isolated ponds and mudflats that were being used to store solid waste. The Court held that the ponds were not navigable, and in doing so, developed the “significant nexus” test that is still used today. The court stated that the difference between SWANCC and Riverside Bayview was a significant nexus between wetlands and navigable waters, which they found lacking in the isolated ponds in SWANCC. The latest case to define navigable waters was Rapanos v. U.S.

In Rapanos v. U.S., 547 U.S. 714 (2006), developer John Rapanos discharged fill material onto 54 acres of wetlands. The wetlands in question were not near traditional navigable waters, but did lie close to ditches that eventually emptied into navigable waterways of the United States. The Army Corps of Engineers sued, claiming that the wetlands constituted navigable waters of the United States, which would make them subject to the CWA and mean that Rapanos should have obtained permits for the backfilling. However, in the Rapanos opinion, the Supreme Court only made the issue more confusing than it had been before. The opinion had no majority, but instead had a four justice plurality, a four justice dissent, and Justice Kennedy’s concurrence, which agreed mostly with the dissent in reasoning while agreeing with the plurality in result.

The plurality, written by Justice Scalia, took a very narrow view of navigable waters under the CWA. It defined navigable waters as waterways which both 1) are “relatively permanent, standing or continuously flowing, bodies of water” and 2) “only those wetlands with a continuous surface connection” to other regulated waterways. Scalia stated that protection would not be lost, but that instead the Corps would just have to regulate non-navigable waterways as point sources themselves. The dissent by Justice Stevens deferred to the Corps of Engineers, finding that their regulatory decisions should be followed, especially when those decisions supported the purpose of the CWA.

Justice Kennedy’s concurrence also agreed that there should be a broad definition of navigable waters under the CWA, and supported regulation of all waterways where contamination would have downstream effects. He followed the SWANCC “significant nexus” test, explaining that wetlands should be regulated where “either alone or in combination with similarly situated lands in the region, [they] significantly affect the chemical, physical, and biological integrity” of other waterways that are clearly navigable. Kennedy also stated that waters should not be regulated when their effect on other waters was “speculative or insubstantial,” and believed that the test he proposed should be applied by the Corps on a case-by-case basis. However, Kennedy was unconvinced that the wetlands in Rapanos actually would impact water quality downstream, and so he joined the plurality. Kennedy did, however, explicitly reject

1 See Rapanos v. US, 547 U.S. 715, 731 (2006), citing The Daniel Ball, 77 U.S. 557, 563 (1870).

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the plurality’s reasoning as being “without support in the language and purposes of the CWA or in our cases interpreting it.”

Only one Fifth Circuit case has significantly discussed the Rapanos opinion. In U.S. v. Lucas, 516 F.3d 316 (5th Cir. 2008), the Fifth Circuit addressed the issue of whether waste discharge from septic systems into wetlands was a violation of the CWA. In Lucas, the wetlands had flowing open water along the edges with strong flow and high velocity, as well as open water on the edges that the court concluded made it difficult to determine where the water ended and the wetlands began. The court did not pick to follow either the plurality or the concurrence, but instead found that the wetlands in question met both tests, eliminating the need to determine which test the Fifth Circuit would follow. However, they did address the plurality opinion first and in more detail.

Other circuits have set out more definitive rules. In U.S. v. Gerke, 464 F.3d 723 (7th Cir. 2006), the Seventh Circuit issued a short judgment addressing solely whether Scalia’s plurality or Kennedy’s concurrence should be followed by their courts. They concluded that the controlling law was Kennedy’s concurrence, since it is the “narrowest ground to which a majority of the Justices would have assented if forced to choose.” The First Circuit questioned whether or not Kennedy’s opinion was the one that really met that standard, and instead determined Rapanos attaches if either the plurality or concurrence are met. U.S. v. Johnson, 467 F.3d 56 (1st Cir. 2006). In Northern California River Watch v. City of Healdsburg, 496 F.3d 993, 999-1000 (9th Cir. 2007), the Ninth Circuit followed Gerke and found that Justice Kennedy’s concurrence was the controlling opinion on the issue.

The jurisprudence seems to indicate that one may use either Scalia’s plurality or Kennedy’s concurrence to prove that waters are navigable. That is positive for the Caernarvon diversion case. In order to make the CWA apply, the waters of Caernarvon must meet on of the tests. Caernarvon flows via a diversion canal from the Mississippi River into the Big Mar, which then is connected to Lake Lery through Bayou Mandeville. Lake Lery is connected to the Gulf of Mexico via a series of lakes, canals, and bayous. It is undisputed that the Mississippi River and the Gulf of Mexico are navigable waterways, and both Big Mar and Lake Lery and likely navigable in the traditional sense due to their connections to the River and the Gulf.

To meet the test of Kennedy’s concurrence, it must just be shown that there is a significant nexus between the wetlands and other navigable waterways, defined as a showing that “either alone or in combination with similarly situated lands in the region, [they] significantly affect the chemical, physical, and biological integrity” of other waterways that are clearly navigable. Caernarvon clearly meets that test in multiple ways: first, it’s connection to the Mississippi, second, through its connection to Big Mar and Lake Lery, and third, through its indirect but close connection to the Gulf of Mexico.

The tougher test to meet will be the plurality’s, where the diversion must be shown to be both 1) a relatively permanent, standing or continuously flowing, body of water and 2) a wetland with a continuous surface connection to other regulated waterways. Even under that test, Caernarvon is almost certainly navigable. First, the diversion canal is almost always flowing, and even when it is not, both it and Big Mar are standing water. Second, there is a continuous surface connection to Big Mar, Lake Lery, the Mississippi River, and the Gulf of Mexico. Even under the test where it must be hard to tell where the wetlands end and the open water begins, just a glance at the map will show that the Gulf of Mexico encroaches steadily into the area of wetlands impacted by the diversion. Therefore, under both the concurrence and the plurality, the Caernarvon diversion is a navigable waterway and thus covered by the CWA.

CWA/CIRCLA PROCEDURAL GIUDE

CITIZEN SUITS AND DEFENSES AGAINST THEM by: James R. May, Widener University, School of Law, Wilmington, Delaware, Copyright (c) 2011 The American Law Institute; James R. May

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I. Introduction

What follows is a recap of major developments involving environmental citizen suit decisions under a variety of federal statutes in 2010.

Citizen suits are a common attribute in the enforcement of federal environmental laws, historically comprising almost one-half of all civil enforcement actions. While statistical information is elusive for most statutes, since 2003, under the Clean Water Act citizens have sent about 2,000 notices of intent to sue, filed 325 complaints, and entered about 140 consent decrees, including 312, 52 and 2, respectively, in 2010. Environmental citizen suits share common attributes. First, except in rare circumstances, environmental citizen suitors must send a notice of intent to sue to appropriate persons at least 60 days before commencing an action. The prototypical provision, section 505(b) of the CWA, provides: “No action may be commenced . . . prior to sixty days after the plaintiff has given notice of the alleged violation (i) to the Administrator, (ii) to the State in which the alleged violation occurs, and (iii) to any alleged violator of the standard, limitation, or order.”

Citizen suit notice requirements are considerably more demanding than notice pleading under the Federal Rules of Civil Procedure. Citizens must give notice in the manner prescribed by EPA. EPA rules generally require notices of intent to sue to identify the specific standards and limitations the recipient of the notice is alleged to be violating, the person responsible, the location of the alleged violation, the date or dates of such violation, and the full name and address of the person giving the notice. Though it is questionable whether advance notice is “jurisdictional,” there it must be perfected before commencing a citizen suit.

Second, government enforcement prior to commencement of the action may preclude the citizen suit. The prototypical provision precludes citizen suits when, prior to commencement of the citizen suit, a state or federal agency “commences” and is “diligently prosecuting” a civil or criminal action “in a Court of the United States,” or under the CWA there is diligent prosecution of an administrative action, collection of a penalty, and citizens do not file an action before institution of the agency action or within 120 days of sending proper notice.

Third, citizens may “commence” a case only by and large in the absence of government enforcement action. Unless precluded, forestalled, unconstitutional or otherwise unwise, the archetypal citizen suit provision allows “any person” to “commence a civil action on his own behalf” against either (1) “any person” who violates a legal prohibition or requirement, or (2) the U.S. Environmental Protection Agency (EPA) for failure “to perform any act or duty . . . which is not discretionary.” Each statute has its own temporal jurisdictional requirement as to when an action may be commenced. For example, the CWA requires good faith allegations of ongoing violations (that the polluter is “alleged to be in violation”), while the CAA allows for prosecution of past violations “if there is evidence that the alleged violation has been repeated,” and RCRA for past violations that “may present an imminent and substantial endangerment.”

Last, citizen suits face a banquet of constitutional and prudential challenges, including standing, mootness, preemption, sovereign immunity, the political question doctrine, claim and issue preclusion, and abstention.

Citizen suits comprise a significant portion of the judicial canon. Federal courts issued about 220 decisions in environmental civil cases in 2010, about 160 of which are environmental citizen suits. Of these, and as summarized below, nearly one-half are under the Clean Water Act (74), with the Resource Conservation Act (49), Clean Air Act (34), Endangered Species Act (32), and Comprehensive, Environmental Resource Compensation, Liability Act (25) also posting a significant number of judicial opinions, with 54 more cases involving a mash up of statutes. Given this distribution, I'll start with the Clean Water Act, before turning to the other statutes with citizen suit provisions. For sake of focusing the scope of this update, I've divided my discussion between “procedural” issues, including notice, preclusion,

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complaints, jurisdiction, attorney fees, and “substantive” decisions that reach the merits, although again, this is by no means a scientific distinction.

I. Clean Water Act

Citizens may bring suit under the Clean Water Act to enforce effluent standards or limitations set by the EPA or the State if the violation adversely affects them. Citizen suits are barred under the act if diligent state or federal enforcement is underway. Sixty day notice must be given to the violator, the State, and the EPA before filing the suit. Similar to the other citizen suit provisions discussed, to remedy a violation the court may issue an injunction, impose penalties, and grant attorney's fees.

A. Procedural

1. Notice

Assateague Coastkeeper v. Alan And Kristin Hudson Farm, 2010 WL 2924661 (D. Md. 2010)Assateague Coastkeeper and other organizations and individuals brought a citizen suit against a poultry producing concentrated animal feeding operation, Alan and Kristin Hudson Farm, seeking penalties and injunctive relief under Clean Water Act (CWA) for illegal discharges of poultry manure. The farm filed motions to dismiss. The District Court, held that failure to adequately identify one of the multiple plaintiffs in notice given of the citizen suit required dismissal of that plaintiff, and the notice was not sufficient as to other named plaintiffs, whose addresses and phone numbers were not included. The allegations of the Farm's control over grower's concentrated animal feeding operation (CAFO) were sufficient to state a claim. The Farm's motions granted in part and denied in part.

City of Ashtabula v. Norfolk S. Corp., 633 F. Supp. 2d 519 (N.D. Ohio 2009)The City of Ashtabula brought action against the owner of a coal dock facility, Norfolk S. Corporation, alleging a discharge of pollutants and contaminated water amounted to a violation of the CWA. The court determined that although the City provided timely and adequate notice of suit in the form of a letter for certain violations, their claim ultimately failed, and Norfolk's motion to dismiss was granted, because the City's letter did not provide adequate notice of all alleged violations.

Palm Beach County Envtl. Coal. v. Florida, 651 F. Supp. 2d 1328 (S.D. Fla. 2009)Palm Beach County Environmental Coalition (PBCEC) brought suit against various developers, as well as state and federal officials and agencies. They alleged that the construction of a natural gas pipeline segment would result in the release of noxious gasses and deteriorate the overall quality of life in violation of the CWA, and numerous other state and federal law. PBCEC required the filing of an amended complaint, as well as an emergency motion for temporary injunctive relief in order to enjoin further construction related to the pipeline. The court denied the motion, and most of the Defendants filed motions to dismiss the amended complaint. The court granted the defendants motions to dismiss as they pertained to the CWA claims against the state agencies and officers on the basis of their 11th Amendment sovereign immunity, and as they pertained to those claims against the federal agencies and officers because the Plaintiffs failed to comply with federal notice requirements. Additionally, the court dismissed the claims against the developers under the CWA because they found they had a lack of jurisdiction under 15 U.S.C. §717r(d), which granted original jurisdiction in the matter to the controlling federal circuit court.

Coal. for a Sustainable Delta v. City of Stockton, 2009 U.S. Dist. LEXIS 74353 (E.D. Cal. 2009)Five local water districts, the Coalition for a Sustainable Delta, alleged the City of Stockton illegally discharged pollutants in violation of the CWA. The City moved to dismiss, claiming that the Coalition had failed to meet CWA requirements of pre-suit notice because of a vague and unsupported, yet timely letter. The court disagreed, explaining that the Coalition need only inform the alleged polluters of what their alleged violations are, but need not argue their point at that time.

Duggan Family P'ship, LLP v. City of Jeffersonville, 2009 WL 1560045 (M.D. Ga. 2009)

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The Duggan Family Partnership brought a citizen suit against the City of Jeffersonville alleging that increased storm water and contaminated runoff from their adjacent treatment facility caused substantial erosion on their property, and posed a serious threat to several animal populations. The City filed a motion to dismiss, and the Court granted because the notice sent to them regarding the alleged violations failed to provide the nature of the alleged violation, as well as the activity alleged to constitute a violation. While the notice letter specifically states that it is in reference to an alleged CWA violation, it does not specify the specific standard or limitation of the CWA that was allegedly violated, nor does it provide a specific activity alleged to constitute the violation. Additionally, the court found that the notice letter was sent less than sixty days prior to the filing of the claims against the City, and was thus further deficient on that basis.

Rock Creek Alliance v. United States Forest Serv., 703 F. Supp. 2d 1152 (D. Mont. 2010)A coalition of environmental advocacy groups, the Rock Creek Alliance, brought an action seeking review under the APA of federal agency actions and associated planning documents relating to the approval of a proposed copper and silver mining operation which would run throughout a national forest. Amongst many other claims, the Alliance alleged that by increasing the amount of rock sediment in nearby creeks, they will consequently raise turbidity standards beyond acceptable state limits, and thus the USFS would violate the CWA. However, because the Alliance failed to provide any type of pre-suit notice of the CWA claims whatsoever, they were dismissed.

Gulf Restoration Network v. Hancock County Dev., LLC, 2009 WL 259617 (S.D. Miss. 2009)The Gulf Restoration Network (GRN), environmental groups, brought suit against land developers, Hancock County Development LLC, alleging that they engaged in a great deal of land clearing, dumping, and construction on approximately 700 acres of wetlands without required dredge and fill, and discharge permits. Hancock moved to dismiss, claiming an insufficiency of pre-suit notice, but ultimately failed. The court determined that the GRN may bring a Clean Water Act citizen suit claim against Hancock because their pre-suit notice provided adequate information for Hancock to identify the dates of alleged violations, the standards allegedly violated, and the locations of alleged violations.

See also, Delaware County Safe Drinking Water Coalition Inc. v. EPA, 68 ERC 1871 (3d Cir. 2008) (failure to provide notice of two NDD claims); (notice allegations about failure to comply with section 404 and other provisions too general); Building and Construction Trades Council of Buffalo, New York and Vicinity v. Downtown Development Inc., 62 ERC 1385 (2d Cir. 2006) (failure to provide 60 days' notice for CWA claims).

2. Standing New Manchester Resort & Golf v. Douglasville Development, 2010 WL 3271509 (N.D. Ga. 2010)New Manchester Resort & Golf, the corporate owner of undeveloped wetlands, filed suit against neighboring property owner, Douglasville Development, alleging that sediment-laden storm water discharges and placement of fill material in stream that passed through wetlands violated Clean Water Act, and asserted state law claims for nuisance, trespass, and negligence. Resort & Golf moved for partial summary judgment and Douglasville Development moved for summary judgment and to exclude expert testimony. The District Court held that Resort & Golf suffered injury-in-fact for standing purposes under the CWA and in its state claims except for the claims regarding Douglasville Development's placement of fill material into the stream because there was no evidence of injury. Also, the injuries found were traceable to the adjacent landowner. Resort & Golf's intent to sue letter did not provide adequate notice to the upstream landowner under the CWA that it was in violation of its permit conditions by ignoring monitoring and reporting requirements. Summary Judgment was precluded on Resort & Golf's CWA claims because genuine issue of material fact existed regarding whether Douglassville Development used the best management practice to prevent and minimize erosion and sedimentation in the stream. The court further found that the county water and sewer authority (WSA) was not a “state,” within meaning of Clean Water Act; but even if county WSA was a state, its actions did not bar plaintiff's civil suit. Summary judgment was also precluded on the on the nuisance, trespass, and negligence claims because genuine issue of material fact existed as to scope of drainage easement and actual damages wetlands owner suffered. Resort & Golf's motion was denied and Douglassville Development's motion was granted in part and denied in part.

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Black Warrior Riverkeeper, Inc. v. Cherokee Mining, LLC, 637 F. Supp. 2d 983 (N.D. Ala. 2009)Black Warrior Riverkeeper, a non-profit corporation, brought a citizen suit against the owner/operator of a coal mine, Cherokee Mining, LLC, regarding alleged violations of their NPDES permit. However, before the issues could reach the court, Cherokee Mining agreed to and executed an administrative consent order from the Alabama Department of Environmental Management (ADEM) that both penalized them financially, and forced them to make operational changes to prevent future violations. Subsequently, Cherokee Mining filed motions to dismiss due to res judicata, and lack of jurisdiction. The court granted, holding that because the issues were resolved to the satisfaction of the ADEM, and the Riverkeeper had no clear basis on which they could conclude that there would be ongoing violations, they this lacked standing to proceed.

United States v. Metro. St. Louis Sewer Dist., 569 F.3d 829 (8th Cir. 2009)A business trade association moved to intervene in an enforcement action against the agency that manages St. Louis' sewer and wastewater system by the United States and the State of Missouri under the CWA. The court here affirmed the lower court's denial, holding that only citizens whose suits are displaced by governmental enforcement actions are entitled under the CWA to intervene as of right. Furthermore, the organization could not articulate a concrete or particularized injury, and as such lacked standing to bring a claim here. Finally, the organization could not establish a substantial enough interest under general principles of intervention to be allowed to do so here.

Pollack v. United States Dep't of Justice, 577 F. 3d 736 (7th Cir. 2009)The Pollacks brought an action alleging that the discharge of bullets from a government gun range into Lake Michigan violated environmental laws. The lower court granted the government's motion to dismiss for lack of standing, and on appeal the court here held that because the Pollacks did not seem to be concretely affected in any way by the shooting activities, and merely sought the satisfaction of enforcing federal law, they lacked standing to pursue the claim.

City of Newburgh v. Sarna, 690 F. Supp. 2d 136 (S.D.N.Y. 2010)The City of Newburgh alleged that Sarna, the defendant land developers, and a nearby town were responsible for the discharge of unfiltered storm water runoff from a residential development, into an adjacent reservoir. Newburgh sought a preliminary injunction compelling the defendants to install numerous measures to prevent the alleged continued flow of unfiltered runoff. Both defendants filed a cross motion to dismiss, or in the alternative, for summary judgment. The court ultimately denied Newburgh's motion, but granted the motion as it pertained to the nearby town. They held that on top of the fact that the NYSDEC was already engaged in administrative proceedings regarding the matter, Newburgh's required letter of notice of suit failed to adequately notify the nearby town, and the City failed to clearly show a threat of irreparable harm. However, the court did determine that the Sarna were still a potentially liable party, and thus the motion to dismiss was denied as it pertained to them.

Domino v. Didion Ethanol, LLC, 670 F. Supp. 2d 901 (W.D. Wis. 2009)Domino, a property owner, brought a citizen suit Didion Ethanol, LLC, an ethanol producer, alleging CWA and NPDES permit violations. Didion moved to amend its answer, and Domino cross-moved for partial summary judgment, seeking a declaration that they have standing, and a determination that Didion violated certain provisions of its wastewater discharge permit. The court ultimately denied Didion's motion to amend, and granted the cross-motion in part, holding that genuine issues of fact precluded only one of Domino's claims (related to unlawful zinc discharge) from summary judgment on both the issue of standing, and whether or not it constituted a violation.

West v. Johnson, 2010 WL 2516056 (W.D. Wash. 2009)West brought a pro se citizen suit in which the he alleged that various municipalities, federal and state agencies and officers, and one private company, violated the CWA. Here, the state defendants moved to dismiss, and the court granted same. They held that because the defendants asserted immunity from CWA claims under the 11th Amendment, a legitimate argument for dismissal, in failing to respond to the motion

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West tacitly conceded that the movant's argument has merit. Furthermore, the federal defendant motion for dismissal was granted because West failed to demonstrate that in addition to his enjoyment of the affected waters, there was any possible way for the court to sufficiently redress his claims, and as such he lacked standing. Finally, the court denied West's motion to amend his complaint because in his supporting documents he sought to assert additional claims against parties he has no private right of action against, and to assert new claims against the parties he has here failed to adequately match.

See also, United States v. Metropolitan St. Louis Sewer District, 69 ERC 1012 (8th Cir. 2009) (lack of associational standing in CWA civil enforcement action); NRDC v. EPA, 67 ERC 1662 (9th Cir. 2008) (standing to bring NDD claims for failure to promulgate ELGs and NSPS for stormwater discharges from construction and development industries); Friends of the Earth Inc. v. Gaston Copper Recycling Corp., 65 ERC 1999 (4th Cir. 2008) (remand finding of standing due to death of standing affiant); Alliance for Environmental Renewal Inc. v. Pyramid Crossgates Co., 61 ERC 1983 (2d Cir. 2006) (remanding dismissal on standing ground, holding constitutional standing steps ahead of merits of whether salt is pollutant); American Canoe Association Inc. v. Louisa Water & Sewer Commission, 59 ERC 1481 (6th Cir. 2004) (upholding associational standing due to recreational and aesthetic injury). Ailor v. Maynardville, 58 ERC 1590 (6th Cir. 2004) (property owners lack standing to challenge city's discharge violations); Florida Public Interest Research Group Citizen Lobby Inc. v. EPA, 59 ERC 1166 (11th Cir. 2004) (upholding standing to challenge EPA failure to perform NDD).

3. Preclusion and Diligent Prosecution

Davis v. Jackson, 2010 WL 2836688 (M.D. Fla. 2010)The Eleventh Amendment barred a couple from maintaining an CWA action for injunctive relief ordering a director of a state water management agency to take actions to restore an estuary to compliance with previous water quality standards and physical dimensions. The relief sought was retrospective, even though the couple may have continued to suffer effects. Thus, the Eleventh Circuit's exception to the Eleventh Amendment for prospective relief was not applicable.

Ohio Valley Environmental Coalition, Inc. v. HobetMin., LLC, 2010 WL 2739990 (S.D. W. Va. 2010)Three environmental groups, collectively the Ohio Valley Environmental Coalition, Inc. (OVEC), brought action against the coal mining company under the citizen suit provisions of Clean Water Act (CWA) and Surface Mine Control and Reclamation Act (SMCRA). OVEC's alleged violations of effluent limits for selenium in the state permit, and performance standards, terms, and conditions of surface mining permit. OVEC moved for summary judgment, and company moved to dismiss for failure to state claim upon which relief could be granted. The District held that West Virginia Department of Environmental Protection (WVDEP) was not diligent in its state prosecution against coal mining company, and thus, it was appropriate for groups to bring action against company under citizen suit provisions of CWA and SMCRA. The claim was not moot because there was a realistic prospect that entry of consent decree in WVDEP's state prosecution against company would not eliminate continued violations of permit. The WVDEP was not a necessary party to action nor was it an indispensable party to the action. Younger and Colorado River abstention from exercise of federal jurisdiction was not appropriate in this instance. The court also found that the company failed to comply with permits; and thus injunctive relief, the scope and terms of which to be determined after trial, was appropriate.

St. Johns Riverkeeper, Inc. v. Jacksonville Elec. Authority, 2010 WL 745494 (M.D. Fla. 2010)Jacksonville Electric Authority sought summary judgment on St. Johns Riverkeeper, Inc's allegations under the Clean Water Act for 200 instances of unauthorized discharges of untreated wastewater, or sanitary sewer overflows (SSOs), at various locations associated with the Electric Authority's wastewater treatment facilities. Genuine issues of material fact existed as to whether there was a continuing likelihood of a recurrence of unauthorized discharge of untreated wastewater into river by wastewater treatment facility despite the facility's remedial action to correct the cause of previous discharges. Therefore, summary judgment was precluded on facility's claim that the St. Johns Riverkeeper's action, brought pursuant to the Clean Water Act for ongoing violations, was moot. Notwithstanding the facility's declaration that the cause

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of each discharge identified in group's complaint was identified and fixed prior to suit, the facility acknowledged that the cause of the discharge may not have even been at the site of the actual discharge. Furthermore, the facility admitted that its ongoing improvement process had resulted in a downward trend of unauthorized discharges, not a fix beyond a reasonable probability.

Friends of Milwaukee's Rivers v. Milwaukee Metro. Sewerage, 556 F.3d 603 (7th Cir. 2009)In response to certain sewer overflows, environmental organizations, collectively under Friends of Milwaukee's Rivers, brought this citizen suit against the defendant sewerage district. The case was initially dismissed in district court because the state itself had commenced and diligently prosecuted judicial and administrative enforcement actions against Milwaukee Metro. Sewerage. The case was then appealed, remanded, and dismissed again. Friends of Milwaukee's River appealed that second dismissal, but the court held, quite narrowly, that the district court did not clearly err in the decisive weight it gave to certain evidence in the determination of the diligence of state enforcement action, nor did it abuse its discretion in refusing to consider other evidence as public record and thus admit it under hearsay exceptions, and thus affirmed their judgment.

Sierra Club v. Powellton Coal Co., 662 F. Supp. 2d 514 (S.D. W. Va. 2009)The Sierra Club brought a citizen suit action against a coalmine operator, Powellton Coal Company, alleging a breach of the effluent limitations in their discharge permits in violation of the CWA. Powelton moved for partial dismissal, but the court explained that while the West Virginia Department of Environmental Protection had properly commenced administrative proceedings, because they are not allowed to engage in such matters without the consent of the violating party, the state provision is not analogous enough to federal preclusion provisions, and as such the Sierra Club is not precluded from suit on those grounds. Furthermore, contrary to the Powelton's motion to dismiss, the court held that the Sierra Club's construction of the SMCRA does not suggest that it supercedes, amends, modifies, or repeals the CWA in any way. Thus, Powelton's motion to dismiss was denied.

Riverkeeper, Inc. v. Mirant Lovett, LLC, 675 F. Supp. 2d 337 (S.D.N.Y. 2009)A non-profit conservation corporation, Riverkeeper, Inc., brought a citizen suit against the owner of a power plant, Mirant Lovett, LLC, alleging that by failing to implement environmental safeguards in a timely manner, they were in violation of the terms of their SPDES permit. Prior to this case, Mirant Lovett, LLC entered into a consent order which, although it did not modify their SPDES permit, did preclude any suits brought resulting from alleged damages up which occurred through 2004. Furthermore, because the power plant in question was unequivocally shut down and demolished, the Riverkeeper's claims for injunctive and declaratory relief were deemed moot. Additionally, because Mirant Lovett, LLC had filed for bankruptcy, all claims for civil penalties arising out of SPDES violations prior to October 2007 were barred as well. The court did hold however that the Riverkeeper adequately plead an injury in fact where it was able to show that the parties it represented had a stake in the enjoyment of the Hudson River, and as such has standing to bring any such claims arising from violations occurring after October of 2007.

Hernandez v. Esso Standard Oil Co., 597 F. Supp. 2d 272 (D.P.R. 2009)Hernandez and other community residents brought a citizen suit against a local service station, Esso Standard Oil Co., and others alleging violations of state and federal environmental laws under the CWA. Hernandez claimed that for many years during the Esso's operation of the station, several underground oil tanks leaked their contents into the surrounding soil and groundwater, with some of the contamination migrating beyond. After a long string of litigation involving the Puerto Rico Environmental Quality Board (ESQ) and a number of plans by which Esso was meant to regulate and repair the damage it had done, the ESQ was eventually barred from bringing any further investigations against the Defendant. Upon commencing drilling operations in accordance with plans for repair and mitigation, a great deal of noxious odor was released, a number of local citizens were harmed and required medical treatment as result, and they thus commenced the action here. Esso motioned to dismiss on grounds of preclusion. The court held that ESQ's previous proceedings did not preclude the citizen suit, and that triable issues of fact existed with regard to their various claims.

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Raritan Baykeeper, Inc. v. NL Indus., 2010 WL 2079749 (D.N.J. 2010)Raritan Baykeeper, Inc. brought a citizen suit against the manufacturer of titanium dioxide pigments, NL Industries, seeking remediation of contaminated sediments in a river located adjacent to a site formerly owned by the manufacturer. NL Industries moved to dismiss on grounds of abstention. The court held that while they could adequately decide the issues presented, in order to avoid interference with state action, in the interest of consistency at the state level, and because the New Jersey Department of Environmental Protection were in the process of getting involved anyway, it was best for the matter to be referred to them for resolution.

4. Standing & Mootness

Kopacz c. Hopkinsville Surface and Storm Water Util., 2010 WL 1979369 (W.D. Ky. 2010)Hopkinsville Surface and Storm Water Utility was engaged in a construction project located adjacent to the property of the Kopaczs. Kopacz alleged that point source discharges of sediment containing storm water runoff occurred from the site without Hopkinsville having obtained the necessary discharge permits. However, Kopacz was concurrently engaged in state court litigation of these matters, and as such Hopkinsville here sought to dismiss the federal claims, or in the alternative, to stay the proceedings pending the state court litigation. The court held that abstention was not proper with regard to the Kopacz's CWA based claims, yet granted the motion to dismiss because they failed to show alleged injury in fact, and thus had no standing in the matter.

Louisiana Envtl. Action Network v. Sun Drilling Products Corp., 2010 WL 2342381 (E.D. La. 2010)A Louisiana environmental watch dog nonprofit, Louisiana Environmental Action Network (LEAN), brought a citizen suit against a chemical manufacturer, Sun Drilling Products Corporation, alleging that as a by-product of its manufacturing process they had released waste water containing certain regulated chemicals into the Mississippi River, in violation of the CWA, and a compliance order issued by Louisiana Department of Environmental Quality (LDEQ). Sun Drilling moved to dismiss for lack of jurisdiction. The court first held that the state had not commenced diligent prosecution against Sun Drilling at the time LEAN filed notice of intent to sue. Furthermore, the court held that because it had been established through sufficient evidence, as well as a concession to as much during oral argument, that Sun Drilling had continued to pollute at the time of the hearing, LEAN's claims were unequivocally not moot.

See also, Black Warrior Riverkeeper Inc. v. Cherokee Mining LLC, 67 ERC 1865 (11th Cir. 2008) (state administrative action not bar citizen suit where action commenced within 120 days of filing); Center for Biological Diversity v. Marina Point Development Co., 67 ERC 1289 (9th Cir. 2008); Piney Run Preservation Association v. County Commissioners of Carroll County, 66 ERC 1353 (4th Cir. 2008) (no CWA citizen suit in face of state consent decree constituting diligent action); Paper, Allied-Industrial Chemical and Energy Workers International Union v. Continental Carbon Co., 61 ERC 1457 (10th Cir. 2005) (finding Oklahoma law “comparable” to CWA in barring citizen suit for injunctive relief, but finding CWA does not bar civil penalties); Friends of Milwaukee's Rivers v. Milwaukee Metropolitan Sewerage District, 59 ERC 1263 (7th Cir. 2004) (finding no diligent prosecution); Karr v. Hefner, 64 ERC 1481 (10th Cir. 2007) (state diligent civil enforcement precludes property owners' CWA citizen suit); Friends of Milwaukee's Rivers v. Milwaukee Metropolitan Sewerage District, 68 ERC 1615 (7th Cir. 2009) (upholding dismissal of CWA citizen suit, finding subsequent enforcement action does not establish lack of diligence for prior action).

5. Sovereign Immunity

West Virginia Highlands Conservancy, Inc. v. Huffman, 651 F. Supp. 2d 512 (S.D. W. Va. 2009)West Virginia Highlands Conservancy, Inc. brought a citizen suit against Secretary of West Virginia Department of Environmental Protection concerning the discharge of acid mine drainage. The court held that said discharge was a pollutant and a point source that, under the control of the WVDEP, was running off into jurisdictional waters without the proper permit. The Secretary asserted that they were immune from such claims under the 11th Amendment. However, the court held that the Ex Parte Young exception

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applied here, so the Conservancy was not barred from bringing suit, and the court thus granted the Conservancy's motion for summary judgment.

6. Attorney Fees

American Canoe Ass'n Inc. v. City of Louisa, 683 F. Supp. 2d 480 (E.D. Ky. 2010)After winning partial summary judgment against the defendant city in a citizen suit the American Canoe Association (ACA) moved for attorney fees and expenses. The district court granted the motion, holding that because the ACA prevailed substantially in their preceding suit, compensation for attorney fees and expenses is proper under the CWA. Furthermore, they held that the appropriate rate for determining the level of compensation was that of an hourly rate for a Kentucky law-firm, since there was no non-local council retained. Finally, they held that a 25% reduction of the overall lodestar calculation was appropriate based on factors of accounting and reasonableness, but that separate from the reduced amount granted, compensation would be made for costs associated with electronic legal research.

George v. Reisdorf Bros., 696 F. Supp. 2d 333 (W.D.N.Y. 2010)George, a landowner, brought a suit against the operator of a fertilizer distribution plant, Reisdorf Brothers, alleging, amongst other things, violations of the CWA as result of the discharging of pollutants on to their property. Both parties cross-moved for summary judgment. The court held that due to weak evidentiary offerings, the plaintiff failed to raise a triable issue of fact as to whether Reisdorf discharged pollutants into waters of the United States, and furthermore as to whether Reisdorf improperly disposed of a solid or hazardous waste. Thus, George's claims under both the CWA were dismissed. However, the court did refuse to award attorney fees to the Reisdorf Brothers, noting that while the asserted claims could not proceed to trial, they were not baseless.

Ctr. For Biological Diversity v. Marina Point Dev. Co, 560 F.3d 903 (9th Cir. 2009)The Center for Biological Diversity (CBD), a non-profit corporation, brought a citizen suit, alleging violations of the CWA on the part of land developers, Marina Point Development Company, in their encroachment upon nesting areas of the bald eagle. The court below held in favor of the CBD, awarding them attorney's fees, and finding Marina Point in contempt. Here, the court reversed, holding that (in addition to mootness on the basis of an ESA issue) because the CBD failed to provide proper notice of suit under the CWA, the district court did not have jurisdiction in the matter. Yet the court also held that where the CBD has already obtained direct benefit prior to the mootness of the case, attorney fees are still proper, and where a claim only becomes moot on appeal, the appellate court has no jurisdiction to question the lower court's decision on the merits. As such, the judgment, and awarded attorney's fees for the CWA claim were vacated, the contempt order was reversed, and the case was remanded with instruction to determine what portion of the attorney fees stemmed from the ESA issue, and reenter judgment on that portion only.

Fitzgibbons v. Cook and Thorburn Drainage Dist., 2009 WL 2170364 (W.D. Mich. 2009)Here, Thorburn Drainage District filed a motion for attorney fees after an unsuccessful citizen suit was brought against them by Fitzgibbons, and ultimately dismissed. The court held that even though the citizen suit was dismissed on the basis of insufficient pre-suit notice, the potential merits of the suit were not so obviously insufficient as to render it frivolous, unreasonable, or groundless. As such, attorney fees could not be granted to the Thorburn under the CWA, or general considerations of fee shifting.

Saint John's Organic Farm v. Gem County Mosquito Abatement Dist., 574 F.3d 1054 (9th Cir. 2009)Saint John's Organic Farm brought this citizen suit against the Gem County Mosquito Abatement District, alleging that the district's discharges of pesticides directly into the waters of the United States without a NPDES permit violated the CWA. After the parties settled the suit, the Organic Farm moved for attorney fees and costs. The lower court denied. Here, on appeal, the court found that while the Organic Farm was a prevailing party, his settlement with the district could preclude him from being awarded attorney fees and costs. They remanded the case to the lower court with an instruction to deny the awards only if they find “special circumstances,” a finding of which would be an admittedly rare occurrence.

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See also, St. John's Organic Farm v. Gem County Mosquito Abatement District, 69 ERC 1129 (9th Cir. 2009) (remanding denial of attorney fees because plaintiff obtained judicial order that materially altered relationship *472 with defendant and achieved actual relief on the merits); Sierra Club v. Hamilton County Board of County Commissioners, 65 ERC 1449 (6th Cir. 2007) (upholding attorney fees because, while citizen group not signatory to settlement agreement, it significantly impacted result); American Canoe Association Inc. v. Murphy Farms Inc., 60 ERC 1822 (4th Cir. 2005) (upholding award of attorneys' fees); Sierra Club v. Little Rock, 57 ERC 1714 (8th Cir. 2003) (no attorney fees due to lack of award of requested relief); Sierra Club v. Cripple Creek and Victor Gold Mining Co., 64 ERC 1698 (D. Colo. 2006) (plaintiffs environmental groups liable for more than $300,000 in attorney fees because they pursued factually unsupportable claims).

B. Substantive

1. TMDL/Listing

Center for Biological Diversity v. EPAPlaintiffs and EPA recently settled a claim alleging that EPA had failed to take into account sufficiently the effects of climate change in approving a state ‘list’ of water-quality impaired segments under the CWA. (W.D. Wash. March 11, 2010). The Center alleged that EPA had failed to recognize the impacts of ocean acidification on the state's coastal waters where the pH level had fallen more than .2 units, thus causing the waters to be in violation of the state's water quality standards. Plaintiffs alleged that this drop in pH was due to carbon dioxide emissions, which are absorbed into the oceans and contribute to enhanced acidification, affecting the ability of certain marine animals, like corals, pteropods, and other species of phytoplankton, to build the protective shells and skeletons. EPA has agreed to seek comments on the best methods for states to determine the effects of ocean acidification, and how to monitor the situation.See also, Conservation Law Foundation v. EPA. (D. Mass August 2010) (asking EPA to account for climate change when determining the total maximum daily loads for nitrogen in the bays around Cape Cod).

2. Permits/Jurisdiction

Peconic Baykeeper, Inc. v. Suffolk County, 600 F.3d 180 (2d Cir. 2010)An environmental group brought a citizen suit against Suffolk County, and their vector control division (collectively the “County”). They alleged that by discharging dredged spoils, pollutants from ditches and culverts, and other materials, and spraying pesticides into U.S. waters without a NPDES permit, the County was in violation of the CWA. The lower court held for the County, and the Baykeeper appealed. The court here chose to vacate the district court's holding that the county's spraying activities complied with FIFRA, holding that because the County may have sprayed pesticides above certain forbidden bodies of water the issue must be remanded for further review. Additionally, the court here held that the County's spraying activities constituted point sources, thus reversing the lower court's decision to the contrary. However, the court here did agree that the County's maintenance related dredging activities did not necessitate an NPDES permit, and were thus not in violation of the CWA.

Northwest Envtl. Defense Ctr. v. Brown, 2010 WL 3222105 (9th Cir. 2010)Northwest Environmental Defense Center (NEDC) brought an action against Oregon officials, and timber companies, alleging that they by discharging storm water from point sources into a system of ditches alongside logging roads, and eventually into streams located in a state forest without NPDES permits they were in violation of the CWA. The lower court dismissed the action, holding that the discharges were exempt from permit requirements under the Silvicultural Rule, which excluded logging operations from being required to obtain NPDES permits for water discharge. NEDC appealed, and the court held that the system of water discharge measures is not exempt from the definition of point source discharge under either the original Silvicultural Rule, or the revised 1976 version. Furthermore, they held that such a system was not exempt from the permitting process under the EPA's 1987 amendments to the CWA. Thus, the court concluded overall that storm water runoff from logging roads that is collected by, and then

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discharged from, a system of ditches, culverts, and channels, is a point source discharge for which an NPDES permit is required.

Ogeechee-Canoochee Riverkeeper, Inc. v. T.C. Logging, Inc., 2009 WL 2390851 (S.D. Ga. 2009)Ogeechee-Canoochee Riverkeeper, Inc. brought a citizen suit alleging that T.C. Logging, Inc.'s logging operations violated the CWA by discharging dredged fill materials into jurisdictional wetlands without a permit. The Defendant moved for dismissal on issues of standing. The court held that despite the fact that the T.C. Logging is actively engaged in the process of obtaining an after-the-fact permit, the court is still able to redress the Riverkeeper's claims, and the case is not moot. Furthermore, on the basis that the T.C. Logging's discharges did not qualify for the silvicultural exemption to permit requirements, and that it was undisputed that T.C. Logging did in fact discharge said fill material into jurisdictional wetlands without the required permit, the court granted a motion of summary judgment on behalf of the Riverkeeper on the issues of standing, and the liability of T.C. Logging.

See Also, Northern California River Watch v. Healdsburg, 62 ERC 2089 (9th Cir. 2006) (jurisdiction in CWA citizen suit to enforce failure to obtain permit); Environmental Conservation Organization v. Dallas, 66 ERC 2000 (5th Cir. 2008) (government consent decree addressing plaintiffs' claims moots CWA citizen suit). Greenfield Mills Inc. v. Indiana Department of Natural Resources, 58 ERC 1033 (7th Cir. 2004) (jurisdiction to hear claim for lack of 404 permit prior to “maintenance” dredging); Peconic Baykeeper Inc. v. Suffolk, 68 ERC 2072 (E.D.N.Y. 2008) (aerial spraying of pesticides not actionable as CWA citizen suit); Sierra Club v. Honolulu City, 68 ERC 1592 (D. Haw. 2008) (liability for permit violations); Puget Soundkeeper Alliance v. Tacoma Metals Inc., 68 ERC 1208 (W.D. Wash. 2008) (liability for failure to report and prevent discharge of spilled cutting oils, but not for failure to maintain SPPP); Alliance to Save the Mattaponi v. Army Department, 65 ERC 1889 (D.D.C. 2007) (CWA citizen suit provision not bar challenge EPA failure to veto CWA 404 permit); Humboldt Baykeeper v. Union Pacific Railroad Co., 65 ERC 1828 (N.D. Cal. 2007) (no CWA citizen suit to enforce state administrative order).

3. Post-Judgment Issues

a. Penalties

Sierra Club v. City of Colorado Springs, 2009 WL 2588696 (D. Colo. 2009)The Sierra Club brought suit against the City of Colorado Springs and alleged violations under the CWA in response to fifty-four events involving their discharge of wastewater, chlorine, and reclaimed water in violation of their NPDES permit. The court found that due to issues of inadequate notice, good faith mitigation, and preclusive administrative action by the CDPHE, only twenty-three claims could be considered for all forms of relief, and twelve could be considered for equitable relief only. The court determined that it would apply the guidelines for imposing civil fines laid out in 33 U.S.C. § 1365(d), as well as standards imposed by the CDPHE. Using those rubrics, the court determined that based on the severity, duration, and size of discharges, only seven of the claims were proper for civil penalties. The fines levied for each would fall between $1,000 and $10,000, with the amount decreed based upon the aforementioned criteria. In total they amounted to $35,500 in penalties to be paid to the U.S. Treasury. Furthermore, the court chose to deny injunctive relief, which would impose tighter court monitored restrictions on the City's operations, in lieu of a stay, giving the CDPHE room to diligently enforce its permits and orders.

b. Settlement

Lake Burton Civic Ass'n v. Williams, 2009 WL 973553 (N.D. Ga. 2009)Lake Burton Civic Association and Williams entered into a settlement agreement whereby William agreed to allow a neutral party to conduct various tests in order to determine the effect had on water located near one of their construction sites. Lake Burton Civic Association brought a motion to enforce that agreement when Williams refused to allow further testing beyond the initial round, claiming that the settlement document limited their responsibility regarding the type of pollutant material to be tested for. The court

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granted Lake Burton's motion, ordering that the Williams must allow further testing, and comply with any recommendations made by the neutral testing party in response.

C. Hybrids: Clean Water Act and Other Environmental Statutes

1. Procedural

a. Notice Requirements

Ecological Rights Foundation v. Pacific Gas and Elec. Co., 2010 WL 1881595 (N.D. Cal. 2010)Ecological Rights Foundation (ERF), a non-profit organization that focuses on ameliorating toxic pollution, brought suit against Pacific Gas and Electric Company (PG&E) alleging that its wooden utility poles are leaching the chemical pentachlorophenal into public waterways in violation of the CWA and RCRA. PG&E filed a Motion to Dismiss First Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(1). PG&E's motion was denied because the court found that ERF properly provided notice under both acts by broadly alleging which utility poles were leaching the chemical. Notice does not need to describe every detail of every violation; but rather provide enough information that the defendant can identify and correct the problem. Furthermore, the court found that exclusion of other parties who may own the poles also did not warrant dismissal of the suit, and the suit was not prematurely filed before the requisite waiting periods of the acts.

b. Preclusion

Arc Ecology v. United States Maritime Administration, 2010 WL 235065 (E.D. Cal 2010)The court lacked citizen suit jurisdiction over Ac Ecology's, an environmental group, suit against the United States Maritime Administration for violating the open dumping prohibition of RCRA. The Environmental Protection Agency (EPA) did not intend for the surface water criteria promulgated under the RCRA to authorize citizen suits for open dumping practices. RCRA regulations were designed to eliminate double liability under the CWA and RCRA. The pollution issues in this case were covered by the CWA. Washington Envtl. Council v. Mount Baker-Snoqualmie Nat'l Forest, 2009 WL 1543452 (W.D. Wash. 2009) The court held that an environmental group could not bring a CWA citizen suit claim against the federal government rooted in the discharge of hazardous substances from abandoned national forest mining sites into jurisdictional waters. Despite the government's concession of the violations, the citizen suit was precluded by ongoing removal actions initiated by the EPA, and in accordance with CERCLA.

c. Attorney Fees

Simsbury-Avon Preservation Soc., LLC v. Metacon Gun Club, Inc., 2010 WL 1286812 (D. Conn. 2010)In 2004 the Simsbury-Avon Preservation Society, LLC and six of its members brought a five-count complaint against Metacon Gun Club under the Resource Conservation and Recovery Act and the Clean Water Act. In a total of four rulings, the last of which addressed an intervening change in the law, the Court dismissed one RCRA claim and granted Defendant summary judgment on the remaining four. The Second Circuit affirmed the summary judgment, and Defendant has moved for attorney and expert witness fees under the RCRA and CWA attorney-fee provisions. Its motions were denied because Plaintiffs' claims were not frivolous, unreasonable, or without foundation at the outset of the litigation and were not unreasonably litigated thereafter.

2. Substantive

Cordiano v. Metacon Gun Club, INC., 575 F.3d 199 (2d Cir. 2009)Cordiano and a citizen group brought a claim against Metacon Gun Club, alleging that by discharging spent lead casings on a privately owned shooting range, they were operating a hazardous waste disposal facility, and polluting navigable waters via nearby soil and wetland point sources in violation of the CWA. The lower court granted summary judgment in favor of the gun club, and the court here affirmed, holding that

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the accumulation of spent lead casings through disposal does not constitute solid waste, or pose an imminent and substantial endangerment to health or environment. As such, they are not required to obtain a permit for the disposal of such waste under RCRA. The court further held that there was no evidence that the gun club discharged any pollutants into jurisdictional wetlands, and as such no NPDES permit is required of them.

II. Clean Air Act

Citizens are authorized to enforce compliance with emission limitations or standards and orders issues by either the EPA Administrator or a State under the Clean Air Act. 42 USC §7604. Proper notice of the alleged violation must be given to the alleged violator, State, and EPA sixty days before filing suit. The citizens bringing the suit must be adversely affected by the violation, and a suit may be barred if enforcement actions have already been commenced by the State or the EPA. Remedies vary from injunctions and penalties *475 to attorney fees. Below is a recap of developments, other than those regarding climate change, covered elsewhere in this program.

A. Procedural

Concerned Citizens Around Murphy v. Murphy Oil USA, Inc., 686 F. Supp. 2d 663 (E.D. La. 2010)Concerned Citizens Around Murphy (CCAM), a non-profit organization, brought action against Murphy Oil USA, Inc. on behalf of its members under the citizen suit provision of the Clean Air Act (CAA), alleging the oil company repeatedly violated hourly and yearly emission limitations set by the Louisiana Department of Environmental Quality (LDEQ). CCAM also alleged that Murphy failed to properly maintain certain pollution control devices, and that those violations endangered the health and impaired the quality of life of its members who lived or owned property near the oil company's refinery. Both parties moved for partial summary judgment. The District Court held that the organization had standing under the CAA, but that fact issues existed as to whether certain emissions met regulatory requirements of malfunction defense. Article III's standing requirements were met because: (1) CCAM's members showed that they used and enjoyed their yards and neighborhood less because of odors emanating from the company's refinery; (2) the members traced the pollution they smelled to the company because the odors grew stronger when they got closer to the refinery; and (3) civil penalties would redress the organization's injuries to the extent that they encouraged the company to discontinue current violations and deter it from committing future ones. Moreover, CCAM sought to protect interests germane to its purpose as an organization.

See Also, Sierra Club v. Franklin County Power of Illinois LLC, 67 ERC 2063 (7th Cir. 2008) (upholding standing to bring citizen suit challenging PSD permit violations); NRDC v. EPA, 63 ERC 1203 (D.C. Cir. 2006) (upholding standing to challenge EPA CAA rule Environmental group has associational standing to challenge Clean Air Act rule promulgated by EPA implementing critical use exemptions on production and consumption of methyl bromide.); BCCA Appeal Group v. EPA, 57 ERC 1257 (5th Cir. 2003) (upholding industry group's standing to challenge EPA approval of Texas SIP); Cambrians for Thoughtful Development v. Didion Milling Inc., 67 ERC 1326 (W.D. Wis. 2008) (no standing due to lack of ongoing violations); Sierra Club v. Wisconsin Department of Administration, 66 ERC 1717 (W.D. Wis. 2007) (upholding standing due to proximity to power plant and adverse effect on aesthetic and recreational values).

B. Substantive

Natural Resources Defense Council v. South Coast Air Quality Management District, 694 F.Supp.2d 1092 (C. D. Cal. 2010)The Natural Resources Defense Council (NRDC) challenged an air quality management district's “offset” requirements of the “new source review” program for “nonattainment” regions. The NRDC sought declaratory judgment and a preliminary injunction. The District moved to dismiss. The District Court held that review of contents of state implementation plan (SIP) for nonattainment area could not be made in context of CAA citizen suit in district court. Thus, the first cause of action failed to state a claim. The district court also lacked jurisdiction because § 173(c) could only be enforced against the EPA in the Ninth Circuit

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pursuant to § 307(b)(1) of the Act. The EPA specifically approved the district's use of the credits previously, so any challenge to that should have been brought against EPA in the Ninth Circuit earlier. In the absence of any enforceable EPA-approved SIP requirements, the second claim for relief was dismissed under Fed R. Civ. P. 12(b)(6) for failure to state a claim. There was no provision for an internal offset tracking system in the Clean Air Act, EPA's regulations or the EPA-approved SIP, so the third and fourth causes of action were also dismissed.

Sierra Club v. Korleski, 716 F. Supp. 2d 699 (S.D. Ohio 2010)The Sierra Club filed a motion for reconsideration and reversal of an interlocutory order denying the Ohio EPA's motion for partial summary judgment. The Sierra Club had previously alleged that the Ohio EPA adoption and enforcement of a best available technology exemption, which contained less stringent requirements than Ohio's State Implementation Plan (SIP), violated the Clean Air Act. In that instance the court held that citizen suits were authorized against a state or local government only as polluters who violated an emission standard, not as regulators who failed to enforce an emission standard. The Sierra Club's motion to reconsider was granted because the court held that it was required by the decision by the U.S. Court of Appeals for the Sixth Circuit in United States v. Ohio Department of Highway Safety to hold that citizens' suits were proper against the state when it failed to enforce an SIP emission standard or limitation.

Sierra Club v. Otter Tail Power Co., 615 F.3d 1008 (8th Cir. S.D. 2010)On appeal the Sierra Club alleged that the Otter Tail Power Company (OTPC) violated the CAA by failing to obtain Prevention of Significant Deterioration (PSD) program permits before commencing certain plant modifications. Also the Sierra Club argued that violations of the CAA continued by operating without PSD permits and without abiding by best available control technology (BACT) emission limits and by operating in violation of New Source Performance Standards (NSPS) limits. The court of appeals held that the Sierra Club's PSD claims were time-barred, as the claims accrued upon commencement of the modifications. Construction or modification of a facility without a PSD permit and BACT is prohibited but there is not an ongoing duty to obtain a permit, so there was no ongoing obligation that could have given rise to a timely claim. The concurrent remedy doctrine barred equitable relief sought by the Sierra Club. The district court's judgment was affirmed.

La. Envtl. Action Network v. Jackson, 685 F. Supp. 2d 43 (D.D.C. 2010)The Louisiana Environmental Action Network (LEAN), an environmental group, brought action against administrator of the Environmental Protection Agency (EPA) and secretary of the Louisiana Department of Environmental Quality, alleging violations of the federal Clean Air Act (CAA). After secretary moved to dismiss for failure to state a claim and lack of supplemental jurisdiction, LEAN moved to dismiss the secretary without prejudice and for leave to amend. The District Court held that LEAN's motion to withdraw its claims against the secretary would be treated as notice of voluntary dismissal rather than a motion to dismiss. Motions granted in part and denied in part.

McEvoy v. IEI Barge Servs., 622 F.3d 671 (7th Cir. Ill. 2010)Neighbors who were adversely affected by coal dust filed action under Clean Air Act against polluter to enforce two Illinois environmental regulations that allegedly had been violated. The United States District Court for the Northern District of Illinois dismissed the action and the Neighbors appealed. The Court of Appeals held that the CAA permitted citizen enforcement of standards found in state implementation plan (SIP), even if those standards were not repeated in a permit. But the Illinois environmental regulation entitled, “Prohibition of Air Pollution,” was not specific enough for judicial enforcement under the CAA citizen enforcement provision; and on issue of first impression, Illinois environmental regulation referring to fugitive particulate matter “that is visible by an observer looking generally toward the zenith at a point beyond the property line of the source” was not specific enough for judicial enforcement under CAA citizen enforcement provision.

See also, National Parks & Conservation Association v. TVA, 65 ERC 1417 (11th Cir. 2007) (alleged violations of preconstruction permit NSR requirements no longer ongoing); National Parks Conservation Association v. TVA, 63 ERC 2025 (6th Cir. 2007) (upholding CAA citizen suit for failure to apply BACT and obtain

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construction permit for major modification); Grand Canyon Trust v. Tucson Electric Power Co., 59 ERC 1161 (9th Cir. 2004) (laches not bar CAA citizen suit due to lack of prejudice). St. Bernard Citizens for Environmental Quality Inc. v. Chalmette Refining L.L.C., 66 ERC 1118 (E.D. La. 2007) (finding certain CAA citizen suit barred by res judicata following refinery's entry of consent decree with federal and state environmental agencies, but upholding jurisdiction for violations not addressed); Ass'n of Irritated Residents v. Fred Schakel Dairy, 67 ERC 1369 (E.D. Cal. 2008) (upholding CAA citizen suit for failure comply with MACT for HAPs emissions); Hell's Kitchen Neighborhood Ass'n v. New York City, 66 ERC 1525 (S.D.N.Y. 2007) (finding CAA citizen suit not barred by res judicata insofar as New York does not give preclusive effect to cases dismissed due to mootness).

III. Comprehensive Environmental Response, Compensation and Liability Act

Under Section 310 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) a citizen may bring suit against an alleged violator of the act, or against the EPA or Agency for Toxic Substances and Disease Registry for failing to perform a non-discretionary duty. Citizen suits can be used to compel cleanup of hazardous waste sites, require additional clean, or to challenge the chosen method of cleanup. Civil penalties and attorney's fees are authorized remedies under the act.

A. Procedural

1. Notice

Tyco Thermal Controls v. Redwood Industrials, 2010 WL 1526471 (N.D. Cal. 2010)The district court held there was no pre-suit notice prerequisite to the exercise of subject matter jurisdiction over a property owner's claims under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). The property owner's private right of action for remediation costs under Section 9607 of CERCLA was distinct from the injunctive and declaratory relief available under Section 9659(a), and property owner's complaint did not make any reference to Section 9659. The notice requirements of Section 9659(d) applied only to Section 9659(a) claims.

2. Jurisdiction

See Davis v. EPA, 63 ERC 1309 (10th Cir. 2006) (upholding jurisdiction to hear CERCLA mandatory duty claims against EPA); Pakootas v. Teck Cominco Metals Ltd., 62 ERC 1705 (9th Cir. 2006) (affirming citizen suit against Canadian company for failing to comply with agency order to study contamination in United States caused by migrating waste from Canadian smelter facility, finding personal and subject matter jurisdiction, and extraterritorial application); Frey v. EPA, 60 ERC 1097 (7th Cir. 2005) (upholding jurisdiction to hear some CERCLA citizen suit claims for failure to perform nondiscretionary and other duties at PCB contaminated site, but dismissing nine other claims as falling outside of CERCLA's citizen suit provision); Moses Lake v. U.S., 62 ERC 1373 (E.D. Wash. 2005) (upholding city's CERCLA citizen suit challenging EPA cleanup plan under section 120 as not subject to section 113's jurisdictional review bar); Moraine Properties LLC v. Ethyl Corp., 68 ERC 1922 (S.D. Ohio 2008); Pinoleville Pomo Nation v. Ukiah Auto Dismantlers, 66 ERC 1646 (N.D. Cal. 2007); Envirowatch Inc. v. Hawaii Department of Health, 65 ERC 2019 (D. Haw. 2007); Nadist LLC v. Doe Run Resources Corp., 64 ERC 2053 (E.D. Mo. 2007); Hackensack Riverkeeper Inc. v. Delaware Ostego Corp., 63 ERC 2136 (D.N.J. 2006); Sierra Club v. EPA, 68 ERC 1228 (N.D. Cal. 2008) (CERCLA's venue provision, “may be brought,” does not require action to be brought in district court in DC, upholding case filed in district court in California).

3. Standing

See Byford v. EPA, 67 ERC 1849 (N.D. Okla. 2008) (no standing due to lack of allegation of proximity or imminent harm from CERCLA site); Sierra Club v. Tyson Foods Inc., 58 ERC 1076 (W.D. Ky. 2003) (upholding standing to bring CERCLA citizen suit for failing to report releases of ammonia from chicken farm); Maine People's Alliance v. Mallinckrodt Inc., 63 ERC 1737 (1st Cir. 2006) (upholding standing in RCRA citizen suit);

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Parker v. Scrap Metal Processors Inc., 59 ERC 1353 (11th Cir. 2004) (same); Covington v. Jefferson, 57 ERC 2066 (9th Cir. 2004) (same); Kersenbrock v. Stoneman Cattle Co., 65 ERC 2016 (D. Kan. 2007) (same).

4. Attorney Fees

See Citizens Against Pollution v. Ohio Power Co., 65 ERC 1374 (S.D. Ohio 2007) (upholding award of $876,895.83 in attorneys' fees, 68,451.61 in expert witness fees, $63,788.23 in court costs, and interest to partially “prevailing party.”); Waukesha v. PDQ Food Stores Inc., 65 ERC 1357 (E.D. Wis. 2007) (no attorney fees due to lack of judicial order; catalyst theory not apply).

B. Substantive

Chitayat v. Vanderbilt Assocs., 702 F. Supp. 2d 69 (E.D.N.Y. 2010)Property owner Chitayat brought action under CERCLA seeking recovery of cleanup costs and contribution from former corporate owner of the property, Vanderbilt Associates, and one of its general partners. The partner commenced two third-party actions against other partners and a neighboring property owner. Vanderbilt Associates and third-party defendants moved for summary judgment against Chitayat. The District Court held that Chitayat was not entitled to recover costs it expended in reimbursing state for clean-up costs but that he was entitled to seek contribution under CERCLA. Also the three-year limitations period applied under the statute and the contribution action was untimely. Summary judgment was granted.

City of Colton v. Am. Promotional Events, Inc.-West, 614 F.3d 998 (9th Cir. Cal. 2010)The City of Colton sued numerous entities that had engaged in industrial activities in groundwater basin, seeking to recover response costs and contribution, under CERCLA, for release of perchlorate contamination in water supply, and asserting claim for declaratory relief as to liability for future costs under Declaratory Judgment Act. The United States District Court for the Central District of California granted defendants summary judgment and the City appealed. The Court of Appeals held that past response costs were not recoverable; the claim for declaratory judgment was ripe, the appeal was not moot, and court had subject matter jurisdiction over declaratory relief claim. However, in matter of first impression, CERCLA declaratory relief as to future response costs is unavailable absent recoverable past costs. Summary judgment for the defendants affirmed.

IV. Resource Conservation and Recovery Act

The Resource Conservation and Recovery Act (RCRA) allows for citizen enforcement under 42 U.S.C. 6972(a)(1)(B). This provision provides that a citizen can bring suit against any person who has contributed to or is contributing to the storage, treatment, transportation, or disposal of any solid or hazardous waste. RCRA generally requires a sixty to ninety day notice before commencing an action, depending on the type of claim and the jurisdiction. Injunctive relief and an award of attorney's fees are available under the provision. Under RCRA, citizens may sue owners or operators of disposal facilities that may present an imminent and substantial endangerment to the environment. [FN16] An endangerment that is “imminent” is not necessarily one precipitating immediate harm. [FN17] Rather, a harm that may not be realized for some time may form the basis for “imminent” endangerment. [FN18] An endangerment that is “substantial” need not quantify the risk of harm. [FN19] Instead, some reasonable cause for concern regarding risk of exposure may for the basis for a “substantial” endangerment claim. [FN20]

A. Procedural

1. Notice

Kfd Enterprises v. City Of Eureka, 2010 WL 1779907 (N.D. Cal. 2010)

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A property owner gave insufficient pre-lawsuit notice to an environmental remediation company under the RCRA. The notice failed to provide facts as to the nature of the company's activities that were alleged to have violated the RCRA or a range of dates for the activities.

Frontier Recovery v. Lane County, 2010 WL 2555800 (D. Or. 2010)Frontier Recovery, the owner of a former landfill, brought a citizen suit against Lane County under RCRA to recover clean up costs. Frontier Recovery also sought contribution and indemnity. The County filed a motion for summary judgment. The District Court held that an Oregon solid waste permit, which predated RCRA's enactment, did not become effective pursuant to the statue. Frontier Recovery had satisfied the notice requirements for a suit alleging imminent and substantial endangerment to health and the environment. Summary judgment was precluded because of factual issues on Frontier Recovery's status as a potentially responsible party. Also, Frontier Recovery was not entitled to indemnity. The County's motion was granted in part and denied in part.

See also, Rennie v. T & L Oil Inc., 66 ERC 1754 (N.D. Okla. 2007) (finding property owner failed to provide 60 days' notice prior to filing claim); Innis Arden Golf Club v. Pitney Bowes Inc., 66 ERC 1435 (D. Conn. 2007) (60 day notice requirement does not apply to section 107 cost recovery actions); Building and Construction Trades Council of Buffalo, New York and Vicinity v. Downtown Development Inc., 62 ERC 1385 (2d Cir. 2006) (failure to provide notice, not “hybrid” claims dispensing need for notice); Covington v. Jefferson, 57 ERC 2066 (9th Cir. 2004) (claims of mishandling hazardous wastes not subject to notice requirement). Affholter v. Franklin County Water District, 68 ERC 1977 (E.D. Cal. 2008) (dismissing RCRA citizen suit, holding notice requirement “strictly construed”). Accord, Hackensack Riverkeeper Inc. v. Delaware Ostego Corp., 65 ERC 1328 (D.N.J. 2007) (failure to provide notice of source of alleged contamination in RCRA citizen suit).

2. Jurisdiction

Sullins v. Exxon/Mobil Corp., 2010 WL 1980218 (N. D. Cal 2010)This case is based on the allegations that, during the time Defendant ExxonMobil Corporation owned the real property now owned by the Sullins, underground storage tanks leaked, contaminating the property and ExxonMobil refused to contribute to the cost of remediating the property. ExxonMobil moved to dismiss Sullins' action for failure to state a claim under the act. The motion was granted in part because Sullins' failed to show how ExxonMobil would continue to pollute the property, as the company had not owned the property since 1972. The motion was denied in part because Sullins had alleged sufficient facts to show the contamination poses an imminent harm to the environment.

Interfaith Cmty. Org., Inc. v. PPG Indus., 702 F. Supp. 2d 295 (D.N.J. 2010)Interfaith Community Organization, Inc., and environmental group, brought action under RCRA alleging that former operator of chrome production facility, PPG Industries, contributed to chromium waste that could present imminent and substantial endangerment to health or environment. Operator moved for summary judgment or for abstention. The District Court held that the action was not rendered moot as result of consent judgment between operator and state environmental agency. Furthermore, the Colorado River abstention was not warranted nor was the Burford abstention. The doctrine of primary jurisdiction did not the preclude action, and the action was not improper collateral attack. PPG Industries' motion denied.

Green Valley Corp. v. Caldo Oil Co., 2010 WL 2348636 (N.D. Cal. 2010)Green Valley Corporation filed suit pursuant to RCRA, and various California state laws, seeking injunctive relief, declaratory relief, and damages related to the investigation and remediation of alleged soil and groundwater contamination. Green Valley alleged that Caldo Oil Company are liable for the abatement of the contamination and the costs of investigation and remediation, which were incurred in response to releases or threatened releases of petroleum products at or near a location currently owned by Plaintiff. The Oil Company moved to dismiss the complaint for lack of subject matter jurisdiction. The motion was denied because the Oil Company failed to show that the petroleum exception in RCRA barred Plaintiff's claims.

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3. Complaint

Grace Christian Fellowship v. KJG Investments Inc., 2010 WL 1905006 (E.D.Wis.,2010) Grace Christian Fellowship (Fellowship) filed this action against KJG Investments Inc. under the citizen suit provision of RCRA. The Fellowship also asserted state law claims of continuing trespass, nuisance, and negligence. The Fellowship moved to file a second amended complaint after three years of litigation and considerable amounts of time and money spent by KJG Investments Inc. trying to resolve the case. Under the circumstances, the Fellowship has unduly delayed the filing of its motion to file a second amended complaint. If the court were to allow the filing of the second amended complaint, at this stage of the case KJG Investments would suffer undue prejudice. The Fellowship's motion was denied.

4. Standing

Premier Associates, Inc. v. EXL Polymers, Inc., 2010 WL 2838497 (N.D.Ga. 2010)Premier Associates, Inc., which was leasing property from EXL Polymers, Inc., potential liability in a suit brought against it by EXL Polymers, Inc. for violations of RCRA could not be considered an injury under that act and thus, lessee had no standing to bring a citizen-suit. Premier Associates did not claim it was injured by EXL Polymers conduct regarding the environmental conditions on the leased premises rather the claim was for contribution to the RCRA violations. However, whether EXL Polymers was partially responsible for RCRA violations had no bearing on whether lessee had standing to bring a citizen-suit against the lessor.

5. Abstention

Adkins v. Will, 2010 WL 1652953 (N. D. Ind. 2010)Adkins' federal action and two Indiana Department of Environmental Management (IDEM) actions in a state court were parallel proceedings, and therefore abstention for a federal district court was appropriate. Abstention was proper because both the citizen-plaintiffs in the federal action and the IDEM plaintiff in the state actions sought the same interests of the removal of solid wastes from a company site and injunction of the company's further handling of solid waste at the site. Furthermore, the state cases and the federal case arose of the same facts and all three actions were predicated upon the company's alleged history of operating a wood recycling facility in violation of Indiana's solid waste regulations.

Natural Resources Defense Council, Inc. v. County of Dickson, TN, 2010 WL 1408797 (M. D. Tenn. 2010)The NRDC brought suit against the County of Dickson, TN, for the abatement of a contaminated land fill. The County moved to dismiss the action, but the motion was denied because the Court held that the NRDC were not barred to bring suit by a commissioner's order in that the order was not from the EPA administrator. The NRDC have proper standing to bring the action, and the circumstances in this action did not fit into the extremely narrow and extraordinary class of cases subject to Burford abstention.

B. Substantive

1. Liability/Indemnification

Gulf Coast Asphalt Co., L.L.C. v. Chevron U.S.A., Inc., 2010 WL 3489941 (S.D. Ala. 2010)Gulf Coast Asphalt Company, L.L.C. (“GCAC”) brought a lawsuit against Chevron U.S.A., Inc. (“Chevron”) under RCRA seeking injunctive and other relief from Chevron to clean up illegally buried crude oil gallons from a former refinery and storage area, alleging that Chevron was a past owner of the storage site who contributed to the disposal of solid waste which presents an imminent and substantial endangerment to human health or the environment. In October 2009, Chevron filed a third-party complaint against Trifinery, Inc. (“Trifinery”) seeking contractual indemnification from and against the claims made by Gulf Coast. Trifinery counterclaimed against Chevron for fraud and misrepresentation, promissory fraud, and breach of contract. This court adopted a report and recommendation dismissing all of Trifinery's counterclaims against Chevron. Chevron's motion for summary judgment was granted.

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Voggenthaler v. Maryland Square, LLC, 2010 WL 2947296 (D. Nev. 2010)Plaintiffs, all residential property owners, brought suit under RCRA against the owners and prior owners of a shopping center, which leased space in the center to a dry cleaning facility. The owners and prior owners contributed, over at least twenty years, to the handling and disposal of perch loreoethylene (PCE), a hazardous waste, which had been discharged from the facility and become an underground plume underneath a residential neighborhood where it had contaminated groundwater as required to subject owners to injunctive relief under the RCRA. The owners of the shopping center also owned the drain pipes beneath the dry cleaning facility where the highest concentrations of PCE had been found. They also gained a financial advantage by leasing the site to the dry cleaning tenant because they received a percentage of the dry cleaning operation's over-the-counter sales as part of the lease agreement. Because of this participation in the financial operation of the dry cleaning business, and direct profits from the dry cleaner's use of PCE, the shopping center owners were subject to liability.

See also, Simsbury-Avon Preservation Society LLC v. Metacon Gun Club Inc., 69 ERC 1187 (2d Cir. 2009) (gun club not RCRA disposal facility, and no imminent and substantial endangerment); Oklahoma v. Tyson Foods Inc., 68 ERC 1961 (10th Cir. 2009) (federal court order denying motion for PI in RCRA citizen suit not abuse of discretion); Sycamore Industrial Park Associates v. Ericsson Inc., 67 ERC 1870 (7th Cir. 2008) (no RCRA liability for sale of commercial products); Cannon v. Defense Department, 67 ERC 1788 (10th Cir. 2008) (CERCLA 113(h) bars RCRA citizen suit challenging ongoing removal or remedial action); OSI Inc. v. United States, 66 ERC 1513 (11th Cir. 2008) (same); Sánchez v. Esso Standard Oil Co., 69 ERC 1053 (1st Cir. 2008) (remanding for reconsideration of decision to grant P/I in RCRA citizen suit despite failure to conduct harm and balancing analysis); Maine People's Alliance v. Mallinckrodt Inc., 63 ERC 1737 (1st Cir. 2006) (upholding RCRA citizen suit to redress medical and scientific concerns). Esso Standard Oil v. Rodríguez-Pére, 63 ERC 1213 (1st Cir. 2006) (jurisdiction to hear RCRA citizen suit as counterclaim); Interfaith Community Organization v. Honeywell International Inc., 59 ERC 2116 (3d Cir. 2005) (Cleanup order upheld in RCRA citizen suit for imminent and substantial endangerment); June v. Westfield, 58 ERC 1648 (2d Cir. 2004) (no continuing violations in RCRA citizen suit); Northern California River Watch v. Redwood Oil Co., 68 ERC 1773 (N.D. Cal. 2008) (CWA consent decree bars subsequent RCRA citizen suit); River Village West LLC v. Peoples Gas Light & Coke Co., 68 ERC 1720 (N.D. Ill. 2008) (CERCLA 113(h) bars RCRA citizen suit, even if instituted after commencing RCRA action). Wason Ranch Corp. v. Hecla Mining Co., 67 ERC 1570 (D. Colo. 2008) (same).

2. Preliminary Injunction

Kentucky Oil and Refining Co. v. W.E.L., Inc., 2010 WL 882133 (E.D. Ky. 2010)The transport company, W.E.L., Inc., established that it had a likelihood of success on its RCRA claim, and thus, the transport company was entitled to a preliminary injunction. The transport company entered into an agreement with the oil company, Kentucky Oil and Refining Co., to transport its waste, but some of its waste was rejected by the disposal sites for containing high amounts of toxins. The transport company tanker was currently filled with the toxic waste on the oil company's property, and the transport company wanted the oil company to clean tanker of the toxic waste. The transport company alleged that the tanker was not designed for long-term storage of waste material and that its valves could burst at low temperatures, releasing the waste. Furthermore, there was evidence that the waste did contain toxins and that the tanker was not fenced off and any person could have access to it.

3. Enforcement

Saline River Properties LLC v. Johnson Controls Inc., 2010 WL 2605972 (E. D. Mich. 2010)An Administrative Order on Consent (AOC) issued by the Environmental Protection Agency (EPA) did not preclude citizens from bringing an RCRA action against a facility owner to enforce the AOC. Johnson Controls Inc. contended that the AOC required certain conditions precedent be met such as giving notice before penalties could be imposed and providing with dispute resolution rights before commencing a civil

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action. However, under the express language in the AOC, a citizen action to enforce the AOC or assess penalties was not precluded.

4. “Imminent and Substantial Endangerment”

City of Fresno v. United States, 709 F. Supp. 2d 934 (E.D. Cal. 2010)The city of Fresno brought suit against, inter alia, a company allegedly responsible for activities, conduct and omissions that caused or permitted the release of environmental contaminants at an airport. The company moved for summary judgment on the city's claim under RCRA. The District Court held that presence on the site of 1, 2, 3-trichloropropane (TCP) did not present an “imminent and substantial endangerment.” The motion was granted.

Crandallv. City & County of Denver, 594 F.3d 1231 (10th Cir. Colo. 2010)Defendants Denver city and county that operated the airport were entitled to judgment on citizen suit claims brought by two individuals under RCRA. Crandall and other individuals alleged harm from deicing operations at the airport concourse. The city and county were granted summary judgment because: (1) under RCRA *482 individuals were only entitled to injunctive relief if they established imminent and substantial endangerment to human health or environment; (2) at time of trial the city and county had prohibited full plane deicing at airport gates, instituted new protective deicing protective measures, and there was no detectable hydrogen sulfide gas from degraded deicing fluid in airport concourse; and (3) gas could only be problem if full-plane deicing operations resumed at concourse gates and measures instituted by city and county proved insufficient to protect human health.

Newark Group, Inc. v. Dopaco, Inc., 2010 WL 1342268, (E. D. Cal. 2010)Newark Group, Inc. moved for partial summary judgment on its RCRA claim in this RCRA citizen suit. Newark Group sought an order holding Dopaco, Inc. jointly and severally liable for the contamination of toluene on its property. Dopaco was a former tenant on Newark's property before Newark purchased the property. Because Newark had failed to satisfy “the imminent and substantial endangerment” element of its RCRA claim, the motion for partial summary judgment was denied.

V. Endangered Species Act

Citizen driven lawsuits are allowed under section 11 (g) of the Endangered Species Act. These lawsuits can seek to enjoin any person that is in violation of the act, to compel agency compliance with the act when a violation has occurred, or can be against the Secretary where there is an alleged failure to perform the nondiscretionary acts and duties set forth by section 4 which sets the procedures for determining endangered and threatened species. Sixty day notice must be given to the violator and the Secretary of the Interior before the commencement of an action. Remedies under the act include an injunction and award attorney's fees and costs if appropriate.The core of the Endangered Species Act (ESA) is §7(a)(2) that requires federal agencies to “insure that any action authorized, funded, or carried out” by the agency “is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species.” The section further provides in §7(b) that if an agency concludes that the action “may effect” an endangered species or its habitat a formal consultation with the Fish and Wildlife Service is required. Section 9 prohibits any person, not just federal agencies, from unlawfully taking, selling, importing, or exporting any protected species.

A. Procedural Issues

1. Notice

Conservation Force v. Salazar, 715 F. Supp. 2d 99 (D.D.C. 2010). Conservation Force, comprised of organizations and individuals that supported sustainable hunting of the Canadian wood bison, brought suit alleging that the Secretary of the Department of the Interior had violated the Endangered Species Act (ESA)

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by not downgrading the species' classification to threatened as it is currently listed as endangered. The Secretary filed a motion to dismiss, and Conservation Force moved for summary judgment. The District Court held that notice of intent to sue under ESA for the failure to issue a 90-day finding did not provide proper notice of intent to sue for the subsequent failure to issue a 12-month finding, and that the request for declaratory judgment was moot. The Secretary's motion was granted. See also Man Against Extinction v. U.S. Fish and Wildlife Service, 68 ERC 1141 (N.D. Cal. 2008) (failure to provide notice challenging decision to delist whale species); Western Watersheds Project v. U.S. Forest Service, 66 ERC 1693 (D. Idaho 2007) (APA claims not trigger ESA's notice requirement); South Yuba River Citizens League v. National Marine Fisheries Service, 66 ERC 1627 (E.D. Cal. 2007) (failure to provide notice of section 7 claim).

2. Jurisdiction

The ESA is replete with jurisdictional issues concerning enforcement, listing and delisting, and a variety of other issues. See e.g., Salmon Spawning and Recovery Alliance v. U.S. Customs and Border Protection, 68 ERC 1041 (Fed. Cir. 2008) (dismissing ESA citizen suit, finding enforcement discretionary); American Bird Conservancy v. FCC, 67 ERC 1833 (9th Cir. 2008) (no jurisdiction to review section 7 claims for actions regulated under FCC); Center for Biological Diversity v. Marina Point Development Co., 67 ERC 1289 (9th Cir. 2008) (delisting species *483 moots ESA citizen suit); Defenders of Wildlife v. Commerce Department, 67 ERC 1097 (D.C. Cir. 2008) (traffic separation scheme subject to citizen enforcement under ESA); Coos County Board of County Commissioners v. Interior Department, 66 ERC 1929 (9th Cir. 2008) (no citizen suit by county for agency's alleged failure to act after determining lack of distinct population segment under ESA); Institute for Wildlife Protection v. Interior Department, 63 ERC 1395 (9th Cir. 2006) (failure to respond to petitions for review not subject to ESA citizen suit); Washington Toxics Coalition v. EPA, 60 ERC 1940 (9th Cir. 2005) (upholding citizen suit requiring EPA to consult under section 7).

3. Standing

Animal Welfare Inst. v. Martin, 623 F.3d 19 (1st Cir. Me. 2010)Animal rights' group Animal Welfare Institute (AWI) sued the Commissioner of Maine Department of Inland Fisheries and Wildlife among others seeking to enjoin Maine officials from using foothold traps, to prevent incidental takes of the threatened Canadian Lynx. The District Court denied relief, citing that AWI failed to show irreparable harm for purposes of the injunction. On appeal, the 1st Circuit found that AWI did have standing to sue, and that the agency did not abuse its discretion when denying the injunction. See Also, Defenders of Wildlife v. Commerce Department, 67 ERC 1097 (D.C. Cir. 2008) (standing to challenge effect U.S. Coast Guard's maritime traffic separation pattern would have on right whales); Alabama-Tombigbee Rivers Coalition v. Interior Department, 56 ERC 1897 (11th Cir. 2003) (upholding business' standing to challenge listing of sturgeon as endangered); American Society for the Prevention of Cruelty to Animals v. Ringling Bros. & Barnum & Bailey Circus, 55 ERC 1904 (D.C. Cir. 2003) (upholding standing to challenge mistreatment of endangered elephants); Institute for Wildlife Protection v. U.S. Fish and Wildlife Service, 66 ERC 1620 (D. Or. 2007) (upholding standing to challenge failure to designate critical habitat).

B. Substantive Issues

1. Section 4

The ESA continues to shape climate litigation. In Center for Biological Diversity v. Salazar (N.D.Cal., June 3, 2010), the U.S. Fish and Wildlife Service reached a settlement to complete listings to protect certain penguin species from the effects of climate change. The determinations for all six species and a subspecies are to be published at various dates, with the last being January 30, 2011. Also, the Eastern District of California recently found that the National Marine Fisheries acted arbitrarily and capriciously by not discussing the impact of climate change on protected salmon and steelhead in the Yuba River in their biological opinion about two dams on the river. South Yuba River Citizens League v. National Marine Fisheries Service (E.D. Cal. July 8, 2010). The agency's actions constituted a taking under the ESA, the court held.

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2. Section 7

Medina County Environmental Action Ass'n v. Surface Transp. Bd., 602 F.3d 687 (C.A.5, 2010).Medina County Environmental Action Association (“EAA”), an environmental organization, challenged the Surface Transportation Board and the Fish and Wildlife Service's decision to allow the construction of a service railroad for failure to comply with §7 of the ESA. Specifically EAA challenged the agencies' findings that the railroad and its cumulative effects would not harm endangered bird species and karst invertebrates known to live in the area. The Court found that the agencies did not act arbitrarily or capriciously when making the decision because: (1) board properly relied upon biological opinion that considered actions associated with proposed line that were reasonably certain to occur, and (2) board adequately analyzed effects of project in making its jeopardy determination.

Western Watersheds Project v. Kraayenbrink, 620 F.3d 1187 (9th Cir. Idaho 2010).The Western Watersheds Project (WWP) challenged the Bureau of Land Management's regulation amendments to the Taylor Grazing Act which decreased public involvement in public land management and limited the agency's enforcement power while increasing ranchers' ownership rights to improvements and water. The Court of Appeals found that the agency violated §7(b) of the ESA by not consulting with the FWS given the extensive evidence of effects on listed species and habitat. Furthermore, the amendments violated the National Environmental Policy Act in that the agency failed to take a “hard look” at significant environmental impacts, failed to consider other agencies and expert concerns, and offered no reasoned explanation for the policy change in its environmental impact statement. Summary judgment was granted for the ESA and NEPA claims and a permanent injunction was affirmed by the 9th Circuit.

Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096 (10th Cir. N.M. 2010).Environmental group Rio Grande Silvery Minnow (hereinafter Minnow) sued the Bureau of Reclamation for failure to protect the Rio Grande Silvery Minnow, an endangered species, by not reallocating water from agriculture and contract users to maintain stream flows in the Rio Grande. Contract water users intervened. The United States District Court for the District of New Mexico, affirmed the biological opinion on substantive grounds, but found that the Bureau had sufficient discretion over certain operations to require consultation under the ESA. Water users, Bureau, and Corps appealed. The Court of Appeals dismissed the water users' appeal for lack of standing and the agencies' appeal because the order was not subject to interlocutory appeal. While appeal was pending, Minnow filed a motion for emergency injunctive relief that alleged a drought was endangering the fish and requested an order directing the Bureau and Corps to meet the flow requirements of the biological opinion. The District Court granted the motion in part and the Bureau, Corps, and water users appealed. The Court of Appeals affirmed the injunction, but subsequently found the appeal moot and vacated its opinion. Following dismissal of the appeal and issuance of a new biological opinion by the FWS, Minnow sought dismissal, but requested that the District Court not vacate its prior orders. The Bureau, Corps, and water users moved for vacatur, and Minnow sought to withdraw their motions to dismiss. The District Court denied the motion to vacate, and the Bureau, Corps, and water users appealed. The Court of Appeals held that Minnow's scope-of-consultation was mooted by the superseding biological opinion, and that the de novo standard of review was applicable to questions of Article III mootness. Further, the Court of Appeals held that the vacatur of the District Court's prior orders was warranted.

3. Sections 9 and 10

Sierra Club v. California American Water Co., 2010 WL 135183, 1 (N.D.Cal.,2010).The Sierra Club alleged that California American Water Co. (CAW), a public water company, diverted and continues to divert water from the Camel River and that these diversions are harming the endangered South Central California Coast Stealhead. Federal agencies were joined as defendants as a necessity because the Sierra Club claimed they had not enforced the takings of the Stealhead. The Sierra Club sought injunctive relief. The District Court dismissed the claim because of its interference with ongoing state judicial proceedings on the same issues.

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In January 2010, the district of Alaska upheld a rule by the U.S. Department of the Interior allowing for incidental takings of polar bears and Pacific walruses during oil and gas exploration. Center for Biological Diversity v. Kempthorne, (D. Alaska Jan. 8, 2010). Petitioners sought to revoke the rule for failure to consider the impact of climate change when approving the taking of the protected species. See also, Center for Biological Diversity v. Kempthorne (9th Cir. Dec. 2, 2009) (upholding U.S. Fish and Wildlife Service's incidental take rules when the climate change evidence presented by the petitioners showed only a generalized threat the species populations, rather than a significant impact).

Conclusion

2010 shows that environmental citizen suits are to remain a necessary but not sufficient attribute in enforcement of environmental laws in the United States.

STATUTES W/ENV. CITIZEN SUITS INCLUDE

• Clean Air Act (“protect and maintain” air quality) (1970, 1987)• Clean Water Act (“protect and restore the chemical, physical and biological integrity of the nation's waters”) (1972, 1977, 1987)• Endangered Species Act (Conserve Threatened and Endangered Species) (1973)• Resource Conservation and Recovery Act (Management of Hazardous Waste) (1976 & 1984)• Comprehensive Environmental Response, Compensation and Liability Act (Clean Up Releases of Hazardous Substances) (1980)

CITIZEN SUIT PURPOSES

● Force compliance when agencies can't or won't● Hold unelected agencies more accountable● Spur enforcement● Compel compliance with legislative mandates● Uphold bicameral lawmaking and tripartite governance● Encourage environmental stewardship and awareness home and abroad● Allowed against:● Person who violates legal requirement (“enforcement” case)● EPA for failure to perform non-discretionary duty (“agency forcing” case)

ANATOMY OF A CITIZEN SUIT

● Fact gathering● FOIA and other informal means● Ascertain extent of injury (“standing”)● Notice of Intent to Sue● To governing agency● To non-complying party● Wait statutory time period to elapse● If (a) violation is ongoing, and (b) agency still not enforcing or complying, evaluate litigation prospects● Commence Action● Person who violates legal requirement (“enforcement” case)● EPA for failure to perform non-discretionary duty (“agency forcing” case)● Defend dispositive briefs● Conduct formal discovery● Submit dispositive briefs● Trial on any surviving issues● Determine appropriate penalties● Negotiate and monitor compliance with consent decree, if any

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CWA/CERCLA SAMPLE DOCUMENTS

Environmental Law Forms Guide, Database updated April 2013 , by: Richard H. Mays

Part III. Clean Water Act (CWA) Forms

Chapter 15. Complaints Under The Clean Water Act

§ 15:18. Private party complaint against the government for wetlands destruction

This form is a complaint brought by an environmental group against the Army Corps of Engineers for destroying freshwater wetlands. Plaintiffs seek injunctive relief under which the government would be prohibited from engaging in any additional nonpermitted wetlands fill activities.

IN THE UNITED STATES DISTRICT COURT

FOR THE_______________

______________________________,Plaintiffs, Civil Action no., ______________________________v.______________________________,Defendants.

Amended Complaint

Introduction

1. __________________'s precious freshwater wetlands are being destroyed. Hundreds of thousands of acres of vital wetlands on the coast of __________________ have been lost, and with them, the crucial flood protection, food storage, water purification, salinity balancing, sedimentation prevention and wildlife refuge functions they provide.

2. In 1972, the Congress of the United States, in passing the comprehensive Federal Water Pollution Control Act Amendments, made clear its intent to protect and preserve the waters of the United States from destruction. In 1977, with the passage of the Clean Water Act, the Congress reiterated its intent to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." In so doing, the Congress entrusted to the Administrator of the Environmental Protection Agency ("EPA") and the Army Corps of Engineers ("Corps") the crucial task of administering the Act's "404" program, which prohibits any dredging or filling in our Nation's vital wetland resources and other waters without a permit properly issued under the Clean Water Act.

3. Rather than fulfilling that trust, the defendants have instead, through a series of actions and inactions, put the delicate balance of water quality and a healthy, productive estuarine system on the coast of __________________in serious jeopardy.

4. This action challenges the illegal conduct of the defendants in allowing the destruction of wetlands on the__________________ Peninsula, and in part, involves two separate wetland areas which have common ownership and some common problems:

a. __________________-Tract I (Exhibit I)

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i. Tract. __________________Farms is engaged with __________________ Associates in a venture to mine peat from over 100,000 acres of its land in__________________ and __________________Counties and convert it to a synthetic fuel—methanol—for chemical and automotive fuel uses. This operation began with an application to the state of __________________ for a peat mining permit to extract peat from and otherwise disturb approximately __________________acres of __________________land in an area lying generally south and east of Lake __________________.

ii. Violations. This approximately __________________-acre tract is composed of wetlands which:

1. Corps and EPA defendants have refused to designate as such;

2. Corps defendants have refused to require permits for dredging and filling these wetlands under § 404 of the CWA; and

3. An effect of these refusals has been illegally to absolve the Corps of its responsibility to prepare an environmental impact statement under § 102(2)(C) of the National Environmental Policy Act [NEPA] analyzing the effects of dredging and filling this vast expanse of wetlands.

b. __________________ Farms-Tract II (Exhibit I)

__________________Farms, which purchased thousands of acres in__________________ and __________________counties from__________________ Farms, is a joint venture of the owner of __________________Farms and__________________ Insurance Company.

The President of __________________Farms is also the Managing Agent of__________________ Farms.

i. Tract. __________________ Lake Creek Basin and__________________ Lake Creek Basin comprise an approximately __________________-acre tract. It lies within a __________________-acre area which__________________ Farms intends to convert to agricultural use and for which it has applied for a § 404 permit.

ii. Violations. This tract, like the entire __________________-acre area in which it lies, is composed of wetlands, which Corps defendants have properly designated as such. Defendants' violations include:

1. Failure to order__________________ Farms to cease unpermitted dredge and fill activities which modified the hydrological conditions in the tract;

2. Allowing __________________Farms to dredge and fill during preparation of an environmental impact statement and during the permit review process on the subject of whether to permit such dredging and filling.

5. This action also challenges other of defendants' actions by which they have attempted to limit the jurisdiction of the Clean Water Act.

Jurisdictional Statement

6. The Court has jurisdiction of this action pursuant to 28 U.S.C.A. § 1331 (federal question); 33 U.S.C.A. § 1365 (citizens' suit provision of the Clean Water Act); 5 U.S.C.A. §§ 701 et seq. and 28 U.S.C.A. § 1361 (action in the nature of mandamus); and 28 U.S.C.A. §§ 2201 to 2202 (action for declaratory judgment). This action is brought to enforce Sections 301, 309, and 404 of the Clean Water Act, 33 U.S.C.A. §§ 1311, 1319, and 1344 and its implementing regulations, and Section 102(2) of the National Environmental Policy Act of 1969, 42 U.S.C.A. § 4332(2), and its implementing regulations.

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Plaintiffs

7. Plaintiff__________________ (__________________ ) is a not-for-profit corporation organized under the laws of the__________________ in__________________ , dedicated to the restoration, wise use and conservation of natural resources. __________________has over__________________ members, affiliate organizations in __________________states, as well as__________________ , and__________________ , and the__________________ , and is the largest nongovernmental conservation and education organization in the world. Its address in __________________.

8. Plaintiff__________________ (__________________ ) was incorporated in__________________ in the__________________ as a nonprofit, tax-deductible organization for the purposes of research and education on key energy and environmental laws. __________________monitors the implementation of these laws with a special interest in water resources and wetlands. Since its founding, __________________has been involved with helping citizens to understand and participate in the activities of federal agencies as they relate to the CWA and wetland protection. __________________produces and distributes a periodic educational newsletter reporting on clean water, wetland protection, and other environmental issues to concerned citizens across the country. Its office is located at__________________ .

9. Plaintiff __________________is a statewide membership organization, affiliated with the __________________and has approximately __________________members. It is primarily devoted to wise use, conservation, aesthetic appreciation, and restoration of wildlife and other natural resources in the state of__________________ . __________________ recognizes that protection of wetlands in the state of is critical to the quality of its waters. It maintains an office at __________________.

10. Plaintiff __________________is an association of citizens concerned about water quality in the__________________ River. The__________________ works to preserve and enhance the quality and productivity of the waters of the__________________ River through public education and participation in decision-making processes affecting water quality in the region. The __________________maintains an office at__________________ .

11. Plaintiff __________________is a community organization formed to discuss issues and problems of concern to the community of__________________ and to develop projects to improve the quality of life in the community. The __________________performs civic and quasi-governmental functions for__________________ , an unincorporated community with a population of approximately__________________ . Its address is General Delivery, __________________ .

12. Plaintiff __________________is a non-profit organization incorporated in__________________ in the state of __________________. The purpose of this membership organization is to educate the public on water quality issues and, through public participation in the decision-making process, to preserve and enhance water quality in the__________________ and __________________River Basins. The__________________ maintains an office at __________________.

13. Plaintiff __________________, incorporated in the state of__________________ in__________________ , is a not-for-profit organization with__________________ members and member organizations with a total of over members, and is dedicated to the maintenance and protection of a healthy and beautiful environment in the state of__________________ . The __________________is particularly concerned about and regularly participates in administrative proceedings involving water quality in the state of __________________. The__________________ maintains an office at __________________.

a. Plaintiff __________________is incorporated under the laws of the__________________ of __________________. The objectives of the corporation are the study, promotion and development of the use, conservation and propagation of seafood products and in gathering and disseminating information which will be beneficial to those engaged in catching, taking, preparing and preserving or distributing products of the sea.

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b. The __________________represents the thousands of people in eastern __________________whose livelihoods are directly affected by the seafood industry, including fishermen, crabbers, boat captains and crews, dock owners, seafood processors, wholesalers, retailers, restaurant owners, and suppliers, and the many others who are directly or indirectly dependent on the seafood industry for their livelihoods. Its address is__________________ .

15. Members of each of the plaintiffs regularly use and enjoy the waters of the coastal rivers, sounds, and estuaries of __________________, and other waters of the United States known as wetlands, including the wetlands that are located on the __________________Peninsula, __________________, for outdoor recreation, including fishing, hunting, boating, hiking, camping, nature observation, photography, scientific study and aesthetic enjoyment. In addition, members of each of the plaintiffs have a substantial interest in the protection and preservation of __________________'s and the__________________ 's wetlands because they contribute to the maintenance and restoration of the chemical, physical and biological integrity of surface and groundwaters. Many of the plaintiffs have, through participation in numerous legislative, administrative, and judicial proceedings, demonstrated their strong interest in the effective protection of the chemical, physical and biological integrity of the Nation's waters and the proper implementation of the CWA. Plaintiffs and their members will be adversely affected in their activities and in their persons by the actions challenged here. Plaintiffs' interests in this proceeding fall squarely within the zone of interests protected by the CWA.

Defendants

16. Defendant __________________is sued in his official capacity as District Engineer of the District of the__________________ United States Army Corps of Engineers. Colonel Hanson is responsible on a daily basis for the operation of the __________________District office of the Army Corps of Engineers, including the activity of the Corps personnel under his supervision. The __________________District office, located at P.O. Box 1890, __________________ , has within its jurisdiction the state of __________________and the wetlands that are the subject of this action. __________________is responsible in the first instance for the lawful implementation of Section 404 of the Clean Water Act and the National Environmental Policy Act as it relates to the regulation of wetland activities within his jurisdiction. Defendants __________________are sometimes referred to collectively as the Corps defendants.

17. Defendant , is sued in his official capacity as Secretary of the United States Department of the Army, the principal office of which is located at , is charged with ultimate responsibility for insuring that the actions of the Department of the Army and the Corps of Engineers under the Clean Water Act and the National Environmental Policy Act, including the issuance of regulations and permits, are conducted in accord with applicable law and regulation.

18. Defendant __________________is sued in his official capacity as the Chief of Engineers of the United States Army Corps of Engineers (Corps). His office is located at __________________. __________________is responsible for the lawful implementation of the Section 404 program on a daily basis, including responsibility for the actions of Corps officials under his supervision.

19. Defendant__________________ is sued in his official capacity as Assistant Secretary (Civil Works) of the United States Department of the Army, the principal office of which is located at__________________ . In that capacity he has immediate responsibility for supervision of the Corps of Engineers and is responsible for insuring lawful implementation of the section 404 program of the CWA by the Department of the Army and the Corps of Engineers.

20. Defendant __________________is sued in his official capacity as the Administrator of the United States Environmental Protection Agency, the principal office of which is located at__________________ . In that capacity, __________________is charged with responsibility of implementing the Clean Water Act and § 404 thereof, including determining the jurisdictional scope of § 404, issuing orders to prohibit the discharge of

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pollutants into the waters of the United States, and prohibiting the specification of sites for the disposal of dredged or fill material.

21. Defendant __________________is sued in his official capacity as Regional Administrator of the United States Environmental Protection Agency, the principal office of which is located at__________________ . As such, he is responsible for the operation of the__________________ Regional Office of the Environmental Protection Agency and the actions of the EPA employees under his supervision. __________________is charged with responsibility for implementation of the Clean Water Act and Section 404 thereof, including activities related to the discharge of pollutants into the waters of the United States such as wetlands under his jurisdiction. The state of __________________, including the wetlands that are the subject of this action, are within the jurisdiction of the__________________ Regional Office of the Environmental Protection Agency. __________________and__________________ are sometimes collectively referred to herein as the EPA defendants.

21a. Defendant __________________is a general partnership organized under the Uniform Partnership Act for the primary purpose of designing, constructing, owning and operating a peat-to-methanol synthetic fuels plant and mining peat deposits from wetlands in several coastal counties of__________________ .

21b. Defendant __________________Farms, Inc. is a joint venture of__________________ , owner of __________________Farms, Inc., and__________________ Insurance Company, doing business in __________________and__________________ counties, __________________ . Farms, Inc. maintains its principal place of business at__________________ , __________________ . Its address is __________________.

FACTUAL BACKGROUND

Wetlands

22. This nation's wetlands are a vital natural resource, essential to maintaining our fish and wildlife populations. Wetlands perform essential water quality functions by recycling nutrients, holding and trapping sediments, and removing pollutants. Wetlands also recharge groundwater supplies. The ability of wetlands to retain and impede surface water runoff and flood waters makes them invaluable for flood protection.

23. Wetlands also provide vital breeding, nesting, molting and wintering habitat for migratory waterfowl. Ten to twelve million ducks breed in the wetlands of the lower 48 states, as well as 60 to 70 percent of the nation's mallards, 50 percent of the wood ducks and 55 percent of the woodcocks.

24. Two-thirds of the commercial fish species harvested on the__________________ and __________________coasts depend on coastal estuaries and their wetlands for food, spawning grounds, and nurseries for their young. Many river and lake fish species depend on inland freshwater lakes and wetlands.

25. Notwithstanding their immense value, their nation's wetlands are being destroyed at an alarming rate. Over 40 percent of the nation's original wetlands are gone, and in some states the loss has been much greater.

The Wetlands of Coastal__________________

26. __________________Peninsula lies between __________________on the north and the __________________River on the south. It is bordered on the east by the__________________ and __________________Sounds and on the west by the __________________Scarp, a low line of cliffs which extends in a southwesterly direction through western __________________County and central County. The peninsula includes the largest continuous area of wetlands in__________________ and one of the largest in the United States. See Exhibit 2.

27. Much of the peninsula's natural habitat is thick evergreen shrub bogs called "pocosins," the __________________Indian term for "swamp-on-a-hill," which typically have highly developed organic or peat

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soils. Such pocosins comprise more than 50 percent of __________________'s valuable fresh water wetlands, with by far the greatest proportion of these wetlands being found on the__________________ Peninsula.

28. Although several theories have been proposed to explain the origin of pocosins, scientists agree that peat forms only in a perenially wet environment. Peat accumulation on the lower coastal plain of eastern__________________ is believed by scientists to have begun some 10,000 years ago.

29. In 1962, natural pocosins covered approximately 2,243,550 acres of__________________ , representing nearly 70 percent of the entire nation's pocosins. By 1979, as a result of forestry and agricultural development, only approximately 695,000 acres remained undisturbed (approximately 31 percent of the 1960 pocosin area).

30. The vast __________________estuarine system, the largest of any single __________________Coast state, occupies more than 2.3 million acres, over 90 percent of which is covered by water. In 1978, __________________'s commercial and recreational fishing industry contributed more than $235 million to the coastal economy, and employed over 23,000 persons. Estuarine-dependent species, such as Atlantic croaker, menhaden, penaeid shrimp, blue crab, and oysters accounted for more than 90 percent of the commercial landings from 1974 to 1978. Without various life-supporting conditions supplied by the wetlands, including a delicate balance between fresh and salt water, these species would not be available for commercial or sports fishing.

31. Pocosin wetlands, which are a unique type of fresh water wetland, serve the following vital functions:

(a) Pocosins provide abundant water retention capacity and act as storm buffers by greatly reducing flood peaks and by preventing the rapid influx of fresh water and excess nutrients into saline estuarine areas, which would severely damage the fisheries;

(b) Pocosins absorb mercury and other heavy metals from the atmosphere and render them insoluble, thus removing heavy metals from potential concentration within the food chain;

(c) Pocosins provide a natural sink for carbon storage, holding a significant portion of the world's carbon in delicate balance;

(d) Pocosins are the natural habitat of species which have always been restricted to pocosins and are also refuges for native species which once ranged widely but are now confined to pocosins because they are among the last habitats to be destroyed by human activity;

(e) Pocosins are extremely valuable as habitat for a variety of game birds and mammals, furbearers, and fish in the coastal plain, and provide the last stronghold for the black bear in coastal __________________.

APPLICABLE LAW

The Clean Water Act (CWA)

32. The CWA is a federal statute that seeks to protect wetlands and other waters of the United States. The primary objective of the CWA is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C.A. § 1251(a).

33. One of six national goals established to achieve this objective is the attainment of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and for recreation in and on the water. 33 U.S.C.A. § 1251(a)(2).

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34. To achieve its objective and goals, the CWA prohibits the discharge of any pollutant into waters of the United States, including wetlands, except in accordance with standards promulgated and permits issued under the CWA. 33 U.S.C.A. § 1311(a).

35. Section 404, 33 U.S.C.A. § 1344, and Section 309 of the CWA, 33 U.S.C.A. § 1319, as implemented by regulations at 33 C.F.R. Parts 320 to 330 (Corps defendants' regulations) and 40 C.F.R. Part 230 (EPA Guidelines) provide Corps and EPA defendants with the responsibility of regulating the discharge of dredged or fill material into waters of the United States and further provide that the discharge of dredged or fill material into waters may not lawfully take place without a permit from defendants. Such permits are issued by Corps defendants (§ 404(a) and (b), 33 U.S.C.A. § 1344(a) and (b)), in accord with Guidelines issued by EPA (§ 404(b), 33 U.S.C.A. § 1344(b)).

36. Section 309(a)(3), 33 U.S.C.A. § 1219(a)(3), provides that the Administrator of EPA shall issue an order requiring any person in violation of, inter alia, Section 301, 33 U.S.C.A. § 1311, to comply with such section. Section 301(a), 33 U.S.C.A. § 1311(a), prohibits the discharge of dredged or fill material into waters of the United States by any person unless such person has a permit pursuant to Section 404, 33 U.S.C.A. § 1344. The Administrator of EPA is charged with overall responsibility for enforcing the CWA, including § 404, and is the final authority for defining the jurisdictional reach of "waters of the United States."

37. Waters of the United States include wetlands. The definition of wetlands in Corps and EPA defendants' regulations, which has been in effect since at least 1977, is as follows:

The term "wetlands" means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas.

General Permits

38. Under Section 404, the Secretary of the Army is authorized to issue both individual permits and general permits. Section 404(e) allows the issuance of general permits (on a state, regional, or nationwide basis) for any category of activities involving the discharge of dredged or fill material only if the Secretary determines the activities are similar in nature and will cause only minimal individual and cumulative adverse environmental effects. 33 U.S.C.A. § 1344(e)(1). As with individual permits, the issuance of general permits is subject to notice and opportunity for public hearing, and the permits must be based on the EPA Guidelines. id.

39. The EPA Guidelines specify, inter alia, that dredged or fill material must not be discharged into waters of the United States unless the permitting authority determines that the discharge will have only minimal adverse effects on water quality and the aquatic environment. 40 C.F.R. § 230.7(a).

40. The EPA Guidelines also prohibit, among other things, the discharge of dredged or fill material which will cause or contribute to significant degradation of the waters of the United States. Effects contributing to significant degradation considered individually or collectively include but are not limited to:

(a) Significantly adverse effects of the discharge of pollutants on aquatic ecosystem diversity, productivity, and stability, such as loss of fish and wildlife habitat or loss of the capacity of a wetland to assimilate nutrients, purify water, or reduce wave energy; and

(b) Significantly adverse effects of discharge of pollutants on recreational, aesthetic, and economic values. 40 C.F.R. § 230.10(c).

41. Two of 27 general permits which are currently in effect and which apply nationwide are as follows:

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(a) 33 C.F.R. § 330.4(a)(1), authorizing discharges from any activity into non-tidal rivers, streams and their lakes and impoundments, including adjacent wetlands, that are located above the headwaters (nationwide "Headwaters" general permit);

(b) 33 C.F.R. § 330.4(a)(2), authorizing discharges from any activity into other non-tidal waters that are not part of a surface tributary system (nationwide "Isolated Waters" general permit).

Together the nationwide "Headwaters" and "Isolated Waters" general permits cover vast geographic areas and authorize a substantial share of the approximately 90,000 annual discharge activities subject to the 27 nationwide general permits. These two permits allow the discharge of dredged or fill material into millions of acres of waters and wetlands that are of vital importance to fish and wildlife resources to go unreported and unmitigated.

BACKGROUND ACTIONS INVOLVING WETLANDS ON THE__________________ PENINSULA

42. In approximately __________________, __________________began acquiring acreage on the__________________ Peninsula which by__________________ totaled some __________________acres in__________________ and __________________Counties, __________________ , in the name of __________________Farms headquartered in __________________.

__________________Tract-Tract I (Exhibit 1)

43. __________________ , headquartered in__________________ , is engaged, with __________________Farms, in a venture to convert __________________dry tons of peat located on approximately __________________acres of __________________property to a synthetic fuel, methanol, which it hopes to sell in the chemical and automotive fuel markets. An expansion strategy involving construction of an initial methanol production plant followed by staged expansion as the markets grow is central to commercial viability. The areas of deep organic soils (peat deposits) located on__________________ acreage which may eventually be mined in the project are shown in Exhibit 1 to this Complaint.

44. PMA is currently engaged in dredge and fill activities for the purpose of preparing wetlands in__________________ and __________________counties, __________________, for the onsite construction of a peat-to-methanol plant and for other purposes associated with mining peat from the wetlands.

45. In__________________ , the__________________ District of the Corps informed an attorney for __________________that the Corps was aware of certain peat mining activities on__________________ land in the area lying generally southwest of Lake , __________________ , __________________and indicated that these activities "could impact on the vast wetlands in that region."

46. On __________________, __________________applied for a mining permit from the state of __________________to conduct peat mining operations. The application indicated that approximately __________________acres of land in __________________and__________________ Counties would be affected by the Farm's mining activities. See Exhibit 1.

47. Subsequently, officials of Corps defendants' __________________District made an onsite inspection of the__________________ 's peat harvesting operations:

The results of the tour of the proposed mining areas were a consensus that vegetation typically found in a bog or pocosin was prevalent and dominant throughout the majority of the mining area but that this vegetation did not appear to be a sufficient indicator of wetlands. … Primarily this determination was reached due to the low water table in the area and relatively dry nature of the upper layers of the peat soils. … This determination that the area is a non-404 wetland carries one stipulation—that the site should be revisited during the late winter or early spring after a significant rainfall to determine then if the soils were saturated to the point of possibly reclassifying the area.

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48. On information and belief, no subsequent site visit was made during late winter or early spring for the purpose of verifying the determination that the area was not wetlands, as defined in ¶37 above, under the Corps defendants' jurisdiction.

49. Of approximately __________________acres of __________________holdings lying generally south and east of Lake __________________ (Tract I, Exhibit 1), Corps defendants determined that approximately 40,000 acres were not "waters of the United States" as defined in Corps administrative regulations and thus were not subject to permits under Section 404 of Clean Water Act.

50. These lands in the__________________ Tract are wetlands (Tract I, Exhibit 1).

51. Potentially severe environmental impacts of PMA activities on First Colony Tract I wetlands include:

(a) Impairment of those vital functions performed by wetlands which are more particularly described in ¶¶22–25 and 30–31 above;

(b) The release of__________________ gallons of wastewater from the peat-to-methanol plant per day; the release of an additional__________________ gallons of water per day for__________________ years during construction of the plant; and an additional__________________ gallons of water per day for__________________ years during construction of the plant; and an additional __________________gallons of water released per day for site preparation;

(c) Air quality impacts from both the dust created during mining operations and emissions from the plant;

(d) tons of solid waste produced each day by plant operations, some percentage of which is likely to be hazardous; and

(e) Mercury levels in waters on the tract which drain into the __________________River, and hence into__________________ Sound, far in excess of the state of __________________'s health-based standard for acceptable levels of mercury.

__________________Farms Tract-Tract II (Exhibit I)

52. __________________Farms, which purchased thousands of acres of __________________Peninsula in__________________ and __________________counties, __________________ , from __________________Farms, is a joint venture of __________________, owner of __________________Farms, and__________________ Insurance Company. __________________ , President of __________________Farms, is also the Managing Agent of __________________Farms.

53. On__________________ , __________________Farms applied to the Corps' __________________District, for a Section 404 permit under the Clean Water Act to clear and drain areas for agricultural use on __________________acres in __________________County.

54. Corps defendants determined that if the discharge of dredged and fill material were permitted on these wetlands, it would be a "major federal action having a significant effect of the quality of the human environment" and thus the application was subject to the requirements of the National Environmental Policy Act and would require the preparation of an environmental impact statement.

55. The__________________ Farms application for a § 404 permit and the environmental impact statement process is currently pending.

56. During the period of __________________to __________________, with the knowledge and acquiescence of Corps defendants, __________________Farms installed plugs and pumps in drainage ditches which altered the existing

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flow of water within an area of the__________________ acres of __________________Farms that was the subject of the individual § 404 permit application and the environmental impact statement process. This area—__________________ Lake Creek Basin and __________________Lake Creek Basin—is comprised of approximately__________________ acres of wetlands and is referred to as Tract II (Exhibit 1).

57. The actions described in ¶56 above, constitute the discharge of dredged or fill material in waters of the United States, and had as their purpose, bringing the waters into a use to which they were not previously subject. These activities were accomplished without a permit under § 404 of the CWA.

58. As a result of the unpermitted discharge of dredged and fill materials described in ¶56, Corps defendants condoned the uprooting of vegetation and other discharges of dredged and fill material on Tract II pursuant to the nationwide "Headwaters" general permit.

59. Tract II is composed of wetlands adjacent to tidal rivers, streams or creeks.

60a. The Corps defendants did not determine that the discharge of dredged and fill material on Tract II would have a minimal adverse effect, either separately or cumulatively, on water quality or the aquatic environment. Indeed, the Corps defendants had previously determined that a permit to discharge dredged and fill material in these wetlands, if granted, would constitute a "major federal action having a significant effect on the quality of the human environment." See ¶54 above.

60b. __________________Farms, Inc. is engaged in the unpermitted discharge of dredged or fill material on wetlands comprising Tract II (Exhibit 1).

Additional Use of General Permits and other Corps Actions to Limit the Jurisdiction of the CWA

61. At some time after the permit application to convert approximately__________________ acres in __________________County, described in ¶53, Corps defendants made onsite visits to other of __________________Farms holdings in __________________County that resulted in determinations that various tracts of wetlands encompassing some __________________acres were not subject to individual permit but could be converted pursuant to the nationwide "Headwaters" general permit. Corps defendants themselves have described at least one of these determinations as "lenient."

62. Corps defendants' abandonment of their duties under law was well summarized in a Corps letter to__________________ (see ¶52) of February 26, 1982:

The prevailing uncertainty over the jurisdictional extent of the law is perhaps one of our own making because of our seeking, through nationwide permits and other means, a justification for limiting the jurisdiction of the Clean Water Act to some boundary less than the full breadth of the wetlands found in the term "all waters of the United States." Thus, this uncertainty stems from our effort to reduce the regulatory requirements on, and accommodate the interests of, land developers such as__________________ and __________________ [emphasis in original].

63. One of the "other means" that the Corps defendants have used to "limit[] the jurisdiction of the Clean Water Act" and to "reduce the regulatory requirements on, and accommodate the interests of, land developers such as__________________ and__________________ " is described in ¶¶64 to 66, below.

64. In the spring or summer of 1980, Corps defendants discovered that __________________Farms was conducting dredge and fill activities in wetland acreage in__________________ County, southwest of __________________, and in the " __________________" area of__________________ County, north of__________________ Lake, without a permit under § 404 of the CWA.

65. Corps defendants agreed to accept after-the-fact permit applications for these two parcels and agreed to process the permit applications in an "abbreviated" and "expedited" manner. In the words of Corps defendants:

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Both areas involved violations of federal law subject to court action, substantial fines, and even restoration of the areas involved. Rather than resort to these measures … we agreed to accept and process permit applications for approximately 1,400 acres of land in the __________________County tracts and 1,600 acres in the __________________tract [of __________________County]. We also agreed to expedite this proceeding including the abbreviation of many steps required by law and regulations.

66. Corps defendants made the decision to dispense with the requirement of an environmental impact statement for these two tracts, despite having found that "[t]he activities of the farms in the area may have very significant impacts on water quality and commercial fisheries in the area. …"

Exhaustion

67. On May 25, 1983, representatives of the plaintiffs gave notice to defendants__________________ and __________________, with copies to, inter alia, __________________, Attorney General of the United States; and defendant __________________; to __________________, President, __________________ , an equity partner in __________________; and to__________________ , President, __________________Farms, Inc. and Managing Agent of Farms, Inc. pursuant to Section 505 of the Clean Water Act, 33 U.S.C.A. § 1365, of their intention to bring suit challenging their refusal to acknowledge their duty properly to regulate the discharge of dredged and fill material on the__________________ Peninsula.

__________________Colony Farms-Tract I

COUNT I. (refusal to regulate peat mining project)

68. Plaintiffs repeat and incorporate by reference the allegations of paragraphs 1 through 66 above, with specific reference to paragraphs 4(a) and 42–51.

Clean Water Act Violations

69 (a) Most, if not all, of the land in the __________________Tract, Tract I, is wetlands, as defined in EPA and Corps of Engineers regulations at 40 C.F.R. § 230.3(t) and 33 C.F.R. § 323.2(c).

(b) The ongoing activities of __________________and __________________constitute the discharge of dredged and fill materials in waters of the United States, as defined in Corps defendants' regulations at 33 C.F.R. § 323.2(a), (i) and (j).

(c) Corps defendants have abandoned their mandatory duty to regulate these dredge and fill activities as directed by § 404, specifically, § 404(a), (b) and (f)(2), 33 U.S.C.A. § 1344(a), (b), and (f)(2), which provide that any such discharge shall be required to have a permit (§ 404(f)(2)), and which entrusts the issuance of such permits (§ 404(a)) and the specification of a disposal site for each such permit (§ 404(b)) to the Secretary of the Army.

(d) Corps defendants have additionally abandoned their duty to prevent the unnecessary alteration or destruction of these vital wetlands, in violation of their own regulations (33 C.F.R. § 320.4(b)(1) and (2)), and have failed to evaluate the cumulative effect of numerous piecemeal alterations of these wetlands which could result in a major impairment of wetland resources, in violation of 33 C.F.R. § 320.4(b)(3) (Corps Regulations implementing § 404).

70. EPA defendants have failed their duties to:

(a) exercise their responsibilities under Section 404 of the Clean Water Act so as to prevent the Corps violations described above;

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(b) prohibit the discharge of pollutants into waters of the United States, which discharge by any person is unlawful under § 301(a), 33 U.S.C.A. § 1311(a), by ignoring their duty either to "issue an order requiring such person to comply with" § 301 by obtaining a permit under § 404, or to "bring a civil action," in violation of § 309(a)(3), 33 U.S.C.A. § 1319(a)(3).

NEPA Violations

71. Corps defendants have violated Section 102(2) of the National Environmental Policy Act (NEPA) and its implementing regulations promulgated by the Council on Environmental Quality (CEQ), and their own NEPA Regulations by failing to prepare an Environmental Assessment and an Environmental Impact Statement on the ongoing and proposed alteration and destruction of these wetlands, in violation of 42 U.S.C.A. § 4332(2) (NEPA); 40 C.F.R. Parts 1500 to 1508 (CEQ NEPA Regulations), and 33 C.F.R. Part 230, Appendix B.

__________________Farms-Tract II

COUNT II. (abuse of the individual permit process, NEPA process, general permits, and other means to limit the jurisdiction of the CWA)

72. Plaintiffs repeat and incorporate by reference the allegations contained in paragraphs 1 through 66 above, with specific reference to paragraphs 4(b), 5, and 52–66, which describe, inter alia, Corps defendants' acquiescence in landowners' modifications of existing hydrological conditions on Tract II for the purpose of qualifying for general permits; their subversion of the individual permit and NEPA process; their "lenient" determination of general permit areas; and other efforts to accommodate the interests of corporate landowners.

Clean Water Act Violations

73. Corps defendants, by these actions, have:

(a) abandoned their mandatory duty to enforce Section 404 of the Clean Water Act, and specifically, § 404(a), (b), and (f)(2) thereof (33 U.S.C.A. § 1344(a), (b) and (f)(2)), which provide that any discharge shall be required to have a properly issued permit (§ 404(F)(2)), and which entrusts the issuance of such permits (§ 404(a)) and the specification of a disposal site for each permit (§ 404(b)) to the Secretary of the Army;

(b) violated Section 404(e)(1) of the Clean Water Act, 33 U.S.C.A. § 1344(e)(1), and the EPA Guidelines at 40 C.F.R. § 230.7, which provide that general permits may only authorize activities determined to cause only minimal adverse environmental effects when performed separately, and to have only minimal cumulative adverse effect on the environment.

(c) violated their own regulations at 33 C.F.R. § 320.4 (1981) and (1983) specifying wetlands as vital areas that constitute a productive and valuable public resource and whose alteration or destruction is contrary to the public interest; at 33 C.F.R. § 320.4 (1981) and (1983); and at 33 C.F.R. § 325.2(a)(6) (1981) and (1983) (setting out the steps that must be taken before any dredged or fill activities are allowed in an area under consideration for an individual permit); at 33 C.F.R. § 326.2 (1981) (1983) (setting out a mandatory duty to issue an order prohibiting unauthorized activity); and at 33 C.F.R. § 323.42(a) (1981) and § 330.4(a) (1983) ("Headwaters" general permit applies only to non-tidal waters.)

74a. EPA defendants abandoned their mandatory duty to prohibit the discharge of pollutants into waters of the United States, by failing either to "issue an order requiring such person to comply" with § 301 by obtaining a lawful permit under § 404, or to "bring a civil action," in violation of § 309(a)(3), 33 U.S.C.A. § 1319(a)(3).

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74b. Defendant __________________Farms, Inc. is engaged in the unpermitted discharge of dredged and fill material into waters of the United States in violation of Section 301(a) of the Clean Water Act, 33 U.S.C.A. § 1311(a).

NEPA Violations

75. Corps defendants' actions were taken in violation of NEPA and:

(a) their own NEPA regulations at 33 C.F.R. § 230.22 (Policy and Procedures for Implementing NEPA) which limit Corps action during the NEPA review process and refer to those limitations contained in 33 C.F.R. § 230.17; and

(b) in violation of the Council on Environmental Quality's Regulations implementing NEPA at 40 C.F.R. § 1506.1, prohibiting any action concerning a proposal which would have an adverse environmental impact or limit the choice of reasonable alternatives until an agency issues a record of decision under 40 C.F.R. § 1505.2.

Prayer for Relief

WHEREFORE, Plaintiffs respectfully request this Court to declare that:

Respecting__________________ Tract I

(a) the areas owned by __________________Farms lying generally south and east of Lake (__________________Tract), which Corps defendants previously inspected and determined were not in their jurisdiction and on which activities associated with peat mining have occurred, are occurring and are proposed, are areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions and are therefore wetlands and part of the waters of the United States subject to regulation under the Clean Water Act, 33 U.S.C.A. §§ 1251 et seq.

(b) __________________Farms and__________________ have engaged and are engaged in the unpermitted discharge of dredged and fill material, including but not limited to ditching, removing vegetation, milling and sloping the soil, extracting and moving wet peat, and adding fill material for the primary purpose of replacing waters of the United States with dry land as defined in 33 C.F.R. § 323.2(k), (l), (m), and (n) (1981); 33 C.F.R. § 323.2(i), (j), (k), and (l) (1983), and such activities constitute the discharge of pollutants into waters of the United States under Section 301 of the Clean Water Act, 33 U.S.C.A. § 1311, which defendants are refusing to regulate;

(c) these unpermitted discharges of dredged and fill material in waters of the United States, which defendants refuse to regulate, are incidental to conversion of wetlands to another use to which they previously had not been subject where the flow and circulation of waters may be impaired and the reach of such waters reduced, in violation of 33 U.S.C.A. § 1344(f)(2);

(d) Corps defendants have failed and are failing to fulfill their mandatory duty under 33 U.S.C.A. § 1344(a), (b) and (f)(2) to designate these wetlands as part of the waters of the United States and to regulate the discharge of dredged and fill material occurring and proposed to occur thereon;

(e) Corps defendants have failed and are failing to comply with the National Environmental Policy Act and its implementing regulations and to prepare an environmental assessment and an environmental impact statement with respect to the ongoing and proposed peat mining project on these wetlands;

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(f) EPA defendants have failed and are failing to exercise their mandatory duty under 33 U.S.C.A. § 1319(a)(3) to issue an order or file a civil action to enjoin the discharge of pollutants into these wetlands without a permit issued pursuant to 33 U.S.C.A. § 1344;

(g) EPA defendants have violated and are violating 33 U.S.C.A. § 1344(c) by their failure to deny or restrict the use of these wetlands as a disposal site and to determine that the discharge of dredged or fill materials will have an unacceptable adverse effect on fishery areas, including spawning areas, wildlife or recreation areas;

Respecting __________________Farms Tract II

(h)(1) __________________Farms, Inc. has and is engaged in the unpermitted discharge of dredged and fill material into waters of the United States in violation of Section 301(a) of the Clean Water Act, 33 U.S.C.A. § 1311(a);

(h)(2) Corps defendants, by participating and acquiescing in the unpermitted discharge of dredged and fill material by __________________Farms affecting approximately __________________acres (Tract II) within a __________________acre area of wetlands in__________________ County, , currently under consideration for an individual permit, and, subsequent to such activities, by approving the uprooting of vegetation and other dredge and fill activities and the alteration of these wetlands pursuant to general permit prior to the completion of the individual permit and NEPA process, violated 33 U.S.C.A. § 1344(a), (b) and (f)(2); 33 C.F.R. § 325.2(a)(6) (1981) (1983); 33 C.F.R. §§ 230.17 and 230.22; Section 102(2)(C) National Environmental Policy Act, 42 U.S.C.A. § 4332(2)(C); and CEQ NEPA Regulations at 40 C.F.R. § 1506.1(a).

(i) the EPA defendants' participation and acquiescence in the actions of Corps defendants set out in (h) above, and their continued failure to take enforcement action violates 33 U.S.C.A. § 1319(a)(3) which directs the Administrator to "issue an order" or "file a civil action" to prevent the discharge of pollutants into the waters of the United States under such circumstances;

(j) the Corps defendants abuse of the nationwide "Headwaters" general permit and other actions taken to limit the jurisdiction of the CWA and reduce the regulatory requirements on corporate land developers, violates § 404(a), (b)(1), (e)(1), and (f)(2) of the Clean Water Act 33 U.S.C.A. § 1344(a), (b)(1), (e)(1) and (f)(2); the EPA Guidelines, 40 C.F.R. Part 230; § 102(2)(C) of NEPA, 42 U.S.C.A. § 4332(2)(C); and its implementing CEQ regulations, 40 C.F.R. Parts 1500 to 1508; and Corps NEPA regulations, 33 C.F.R. Part 230.

(k) plaintiffs, individually and as groups, will suffer immediate and irreparable harm as a direct result of defendants' failure properly to enforce the mandates of the Clean Water Act and the National Environmental Policy Act, and this harm will continue unless enjoined by this Court.

Plaintiffs additionally request this Court to issue an order preliminary and permanently:

(a) enjoining Corps and EPA defendants forthwith to issue an order prohibiting unpermitted dredge and fill activities associated with the preparation of wetlands in__________________ , __________________ , or __________________counties, __________________ for peat mining (Tract I); enjoining defendant __________________from conducting any activities which constitute the discharge of dredged or fill material into waters of the United States pending completion of the relief prayed for in paragraph (b), below;

(b) enjoining Corps and EPA defendants forthwith to determine the precise delineation of the wetlands that have been, are being and are proposed to be dredged and filled in conjunction with the __________________Farms/__________________ project to mine peat, and forthwith to report to the Court and plaintiffs their findings; and further directing defendants to regulate such areas in accordance with the Clean Water Act, and the regulations promulgated pursuant thereto, and the

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National Environmental Policy Act and its implementing regulations, including in such regulation the consideration of the cumulative impact of past, present and proposed dredge and fill activities upon the interconnected wetland resources of the __________________Peninsula;

(c) enjoining Corps and EPA defendants forthwith to issue an order prohibiting any further discharge of dredged and fill material on the approximately __________________acre tract within the acre __________________Farms tract on __________________County currently under consideration for an individual permit under § 404 (Tract II) and enjoining __________________Farms from conducting any activities which constitute the discharge of dredged or fill material into the wetlands comprising Tract II;

(d) enjoining the Corps defendants to require the restoration of all wetlands found by this Court to have been dredged and filled in violation of law to their original, natural state before the illegal activities occurred thereon; enjoining __________________to restore all wetlands found by this Court to have been dredged by it or its agents in violation of law to their original, natural state before illegal activities occurred thereon; and enjoining __________________Farms, Inc. to restore all wetlands found by this Court to have been dredged or filled by it or its agents in violation of law to their original, natural state before the illegal activities occurred thereon;

(e) such additional relief as this Court deems necessary and proper.

Plaintiffs further request this Court to award plaintiffs all costs and expenses of this litigation, including attorneys fees and expert witness fees, pursuant to 33 U.S.C.A. § 1365(d).

Respectfully submitted,___________________________

Dated: __________________

CWA/CIRCLA DISCOVERY AIDS

LDEQ Permitting

Louisiana Practice Series - Louisiana Environmental Compliance

Public Trust - IT Analysis

The Louisiana Public Trust Doctrine is based on article IX, Section 1 of the 1974 Louisiana Constitution. Article IX, Section 1, provides:

That the natural resources of the State, including air and water, and the healthful, scenic, historic and aesthetic quality of the environment shall be protected, conserved and replenished insofar as possible and consistent with the health, safety and welfare of the people. The Legislature shall enact laws to implement this policy.Article IX imposes a duty of environmental protection on state agencies. Save Ourselves, Inc. v. Louisiana Environmental Control Com'n, 452 So. 2d 1152 (La. 1984). Article IX does not establish environmental protection as an exclusive goal, but it requires a balancing process in which

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environmental costs and benefits are given full consideration along with economic, social and other factors. The Save Ourselves case left open the questions of which agencies the public trust applies to and whether the public trust imposes substantive as well as procedural requirements on agencies. The decision itself involved an application by a company (the IT Corporation) for a permit to construct and operate a new hazardous waste disposal facility in a place where no other disposal facility had previously existed. The Court found there was a need for an examination of whether or not adverse environmental impacts of a facility had been minimized, such as an examination of alternate projects, alternate sites, or mitigative measures that would offer more protection for the environment than the proposed project without unduly curtailing non-environmental benefits. The Court noted the absence of information in the record.The IT factors that are derived from the Save Ourselves case include the following:

The potential and real environmental effects of the proposed project must have been avoided to the maximum extent possible;

The cost benefit analysis of the environmental impact cost balanced against the social and economic benefits of the project demonstrate that the latter outweighs the former; and

The alternative projects or alternative sites have mitigating measures which offer more protection to the environment than the proposed project without unduly curtailing non-environmental benefits to the extent applicable.

The case also stands for the proposition that LDEQ must make findings to support its permit decisions.

The cost benefit analysis required by Save Ourselves does not require a particular type of analysis, although all balancing must be articulated and explained in detail. However, since the Save Ourselves decision, the public trust doctrine sometimes has been interpreted substantive. Matter of Dravo Basic Materials Co., Inc., 604 So. 2d 630 (La. Ct. App. 1st Cir. 1992). If LDEQ fails to make proper findings in a permit decision, a court will likely set the LDEQ decision aside. Matter of Rubicon, Inc., 670 So. 2d 475 (La. Ct. App. 1st Cir. 1996); Matter of West Pearl River Nav. Project, 657 So. 2d 640 (La. Ct. App. 1st Cir. 1995).

Note:

Louisiana Environmental Action Network v. Louisiana Dept. of Environmental Quality, 2009-1244 La. App. 1 Cir. 2/8/10, 2010 WL 431500 (La. Ct. App. 1st Cir. 2010) (noting LDEQ's response to public comments do not have to be hypertechnical and giving judicial deference to LDEQ's technical findings such as on monitoring requirements).The Save Ourselves decision and resulting IT factors are analogous, in part, to NEPA. However, it cannot be said that the IT analysis under the Louisiana public trust doctrine is a layered approach like NEPA is. That is, NEPA requires smaller studies, e.g., the environmental assessment, for projects with minor impacts, and more extensive studies, e.g., an environmental impact statement, for projects with more significant impacts. See, Johnson, Constitutional Environmental Protection in Louisiana: Losing the Reason in the Rule of Reasonableness, 42 Loy. L. Rev. 97 (1996).

The Louisiana legislature has adopted the IT questions at La Rev Stat Ann § 30:2018(B). It requires a permittee in an environmental assessment to address the following issues regarding the proposed permit activity:

The potential and real adverse environmental effects of the proposed permit activities; A cost-benefit analysis of the environmental impact costs of the proposed activity, balanced

against the social and economic benefits of the activity which demonstrates that the latter outweighs the former; and

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The alternative to the proposed activity which will offer more protection to the environment without unduly curtailing non-environmental benefits.

LDEQ may combine a public hearing on the environmental assessment with a public hearing on the proposed permit. Section 2018.C.

However, LEQA § 2018(E) exempts certain activities from this IT analysis, including the following:

Minor modifications; Minor variances; Exemptions from permits, licenses, registrations, variances, or compliance schedules; Administrative amendment to a permit, license, registration, variance, or compliance schedule; Minor source of air emissions; Minor source of hazardous waste; Minor source of solid waste; Facility or activity which is not a major source for water discharges; Application for authority to commence construction; Groundwater certification; Remedial action, remediation, response, corrective action, clean-up of soil, groundwater, or

surface water related to a facility or removal of properties; Renewal or extension of existing permit, license, registration, exemption, variance, or

compliance schedule, unless changes are accompanied by a major application; and Any rule-making by LDEQ.

La Rev Stat Ann § 30:2018(H), however, says nothing in the statutory section relieves LDEQ or permit applicants from the constitutional public trust requirements. This provision is odd, as the public trust doctrine must be implemented through legislation. Thus, the legislature has arguably left it open-ended for courts to decide exactly how the public trust doctrine will affect LDEQ permit decision-making.

Furthermore, at La Rev Stat Ann § 30:2014.3(C), the legislature adopted the rule of exhaustion of administrative remedies in limiting the issues that can be presented to a court in review of LDEQ's public trustee decisions to those which were made part of the administrative record for the permit application, unless good cause is shown for the failure to submit it to the LDEQ. Good cause includes cases where the party seeking to raise a new issue or introduce new evidence shows that it could not reasonably have ascertained the issues or made the evidence available within the time established for public comment by LDEQ or that it could not have reasonably anticipated the relevance or materiality of the evidence or issues sought to be introduced.An IT checklist of LDEQ can be found at § 5:73, and a sample LDEQ decision document is at § 5:74.

La. Prac. Envtl. Compl. § 5:56 (2012-2013 ed.)

LSA-R.S. 30:2014.3§ 2014.3. Review of secretary's public trustee decisions

A. This Section shall apply to the department and all permit applicants and shall apply only with respect to the public trustee issues, as provided in Article IX, Section 1 of the Constitution of Louisiana and by the Supreme Court of Louisiana in the case of Save Ourselves, Inc. v Louisiana Environmental Control Commission, 452 So.2d 1152 (La. 1984). Subsequent case law and laws interpreting said decisions and the rules and regulations adopted by the department in accordance with those decisions may be used to implement the public trustee issues, to be addressed by the secretary when making decisions with respect to permits, licenses, registrations, variances, or compliance schedules authorized by this Subtitle.

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B. The applicant and any person who may become a party to an administrative or judicial proceeding to review the secretary's decision on an application must raise all reasonably ascertainable issues and submit all reasonably available evidence supporting his position on the permit application prior to the issuance of the final decision by the department so that the evidence may be made a part of the administrative record for the application.

C. No evidence shall be admissible by any party to an administrative or judicial proceeding to review the secretary's decision on the application that was not submitted to the department prior to issuance of a final decision or made a part of the administrative record for the application, unless good cause is shown for the failure to submit it. No issues shall be raised by any party that were not submitted to the department prior to issuance of a final decision or made a part of the administrative record for the application unless good cause is shown for the failure to submit them. Good cause includes the case where the party seeking to raise new issues or introduce new evidence shows that it could not reasonably have ascertained the issues or made the evidence available within the time established for public comment by the department, or that it could not have reasonably anticipated the relevance or materiality of the evidence or issues sought to be introduced.

La. Rev. Stat. Ann. § 30:2014.3

WHAT HAS BEEN DONE SO FAR

Permitting

Office of Counsel

Via email: [email protected]

Paige GallaspyPaul M. Hebert Law Center1 East Campus Dr.Louisiana State University Baton Rouge, LA 70803-1000

Re: Gallaspy FOIA No.13-151 Dear Ms. Gallaspy:

DEPARTMENT OF THE ARMY NEW ORLEANS DISTRICT, CORPS OF ENGINEERS P.O. BOX 60267NEW ORLEANS, LOUISIANA 70160-0267

March 11, 2013

Reference your letter dated March 8, 2013 seeking information under the Freedom of Information Act (FOIA).

You request seems does not provide a reasonable description of the records you seek. It is not clear if you

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are seeking permits or Feasibility Reports, as the Caernarvon Diversion and Davis Pond were constructed under Federal Authority and as such would not have required Regulatory permits.

No further action will be taken on this request at this time. Please resubmit your request including a more detailed description of the records you seek. Should you have any questions regarding this response, please contact me at 504-862-2264.

Sincerely,

Frederick W. WallaceFreedom of Information Act Coordinator