|
|
http://laws.findlaw.com/4th/021946p.html |
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
------------------------------------------------*
FRANCES BROADDUS CRUTCHFIELD;
HENRY RUFFIN BROADDUS,
Plaintiffs-Appellees,
v.
COUNTY OF HANOVER, VIRGINIA,
Defendant-Appellant,
and
UNITED STATES ARMY CORPS OF
ENGINEERS,
Defendant.No. 02-1946
GREATER RICHMOND PARTNERSHIP,
INCORPORATED; GREATER RICHMOND
CHAMBER OF COMMERCE; HANOVER
BUSINESS COUNCIL; LOCAL
GOVERNMENT ATTORNEYS OF
VIRGINIA, INCORPORATED; VIRGINIA
ASSOCIATION OF COUNTIES; VIRGINIA
ASSOCIATION OF MUNICIPAL
WASTEWATER AGENCIES,
INCORPORATED (VAMWA),
Amici Supporting Appellant.
------------------------------------------------*
------------------------------------------------*
FRANCES BROADDUS CRUTCHFIELD;
HENRY RUFFIN BROADDUS,
Plaintiffs-Appellees,
v.
UNITED STATES ARMY CORPS OF
ENGINEERS,
Defendant-Appellant,
and
COUNTY OF HANOVER, VIRGINIA,
Defendant.No. 02-2153
GREATER RICHMOND PARTNERSHIP,
INCORPORATED; GREATER RICHMOND
CHAMBER OF COMMERCE; HANOVER
BUSINESS COUNCIL; LOCAL
GOVERNMENT ATTORNEYS OF
VIRGINIA, INCORPORATED; VIRGINIA
ASSOCIATION OF COUNTIES; VIRGINIA
ASSOCIATION OF MUNICIPAL
WASTEWATER AGENCIES,
INCORPORATED (VAMWA),
Amici Supporting Appellant.
------------------------------------------------*
Appeals from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, District Judge. (CA-02-253-3)
Argued: January 24, 2003
Decided: March 27, 2003
Before WILKINSON and MICHAEL, Circuit Judges, and James H. MICHAEL, Jr., Senior United District Judge for the Western District of Virginia, sitting by designation.
____________________________________________________________
2
Reversed by published opinion. Judge Wilkinson wrote the opinion,
in which Judge Michael and Senior Judge Michael joined.
____________________________________________________________
COUNSEL
ARGUED: John Alan Bryson, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Appellant Corps; William Gray
Broaddus, MCGUIREWOODS, L.L.P., Richmond, Virginia, for
Appellant County. William B. Ellis, ELLIS & THORP, P.L.L.C.,
Richmond, Virginia, for Appellees. ON BRIEF: Thomas L. Sanso-
netti, Assistant Attorney General, Paul J. McNulty, United States
Attorney, M. Hannah Lauck, Assistant United States Attorney, Greer
S. Goldman, John A. Sheehan, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C.; Katherine D. Will, Assistant Dis-
trict Counsel, UNITED STATES ARMY CORPS OF ENGINEERS,
Norfolk, Virginia, for Appellant Corps. Stewart T. Leeth, MCGUIRE-
WOODS, L.L.P., Richmond, Virginia; Sterling Edward Rives, III,
Barbara M. Rose, OFFICE OF THE COUNTY ATTORNEY, Hano-
ver, Virginia, for Appellant County. Benjamin A. Thorp IV, ELLIS
& THORP, P.L.L.C., Richmond, Virginia, for Appellees. Ralph L.
Axselle, Jr., Walter H. Ryland, WILLIAMS MULLEN, P.C., Rich-
mond, Virginia, for Amici Curiae Greater Richmond Partnership,
Inc., et al. David Neal Anthony, KAUFMAN & CANOLES, Rich-
mond, Virginia; Andrew R. McRoberts, Goochland County Attorney,
Goochland, Virginia; Walter C. Erwin III, Lynchburg City Attorney,
Lynchburg, Virginia; C. Flippo Hicks, General Counsel, VACo, Rich-
mond, Virginia; Christopher D. Pomeroy, AquaLaw, P.L.C., Rich-
mond, Virginia, for Amici Curiae Local Government Attorneys, et al.
____________________________________________________________
OPINION
WILKINSON, Circuit Judge:
Plaintiffs Frances Crutchfield and Henry Broaddus brought suit
against the United States Army Corps of Engineers and the County
of Hanover, Virginia to enjoin the construction of a wastewater treat-
ment plant and its associated sewage conveyance systems and to
3
strike down the Army Corps' approval of those facilities. The district
court upheld their challenge. Crutchfield v. United States Army Corps
of Eng'rs, 214 F. Supp. 2d 593 (E.D. Va. 2002). Because the Army
Corps is entitled to approve an applicant's project proposal under a
less stringent Nationwide Permit regime even if the applicant initially
requested a type of individual permit that would have required more
rigorous review, and because there was sufficient evidence to support
the Army Corps' decision to approve the project, we reverse.
I.
Hanover County is located in a rapidly-growing area north of Rich-
mond, Virginia. In an effort to manage this growth and preserve some
of the rural character of the region, county government has adopted
a "Smart Growth" policy that concentrates development in a limited
portion of the County known as the "Suburban Service Area." How-
ever, this rapid population growth has put significant pressure on the
County's wastewater treatment infrastructure.
The County currently satisfies its need for wastewater treatment by
using two of its own wastewater treatment facilities to process sewage
from the northern part of the Suburban Service Area, and by sending
sewage from the southern part to neighboring Henrico County for
treatment and discharge. The contract with Henrico County allows
Hanover County to send up to 5.4 million gallons per day (mgd) of
wastewater for treatment at a Henrico County facility. Because it
appears that Henrico County is unwilling to satisfy Hanover County's
wastewater treatment needs beyond this contractual limit, Hanover
County needs to develop supplementary means of treating wastewater
generated by its continuing population growth.
After evaluating various options for dealing with this challenge,
Hanover County decided to build its own wastewater treatment plant.
The current proposal for that plant consists of (1) a pump station and
a four-mile forcemain (collectively the "Lee Davis pipeline") which
would convey wastewater from the pump station to the treatment site,
(2) the wastewater treatment plant itself, (3) an eight-mile forcemain
which would convey treated wastewater from the plant to the
Pamunkey River, and (4) a discharge structure on the river bottom.
4
The project would permanently affect no more than two tenths of
an acre of wetlands. Plaintiffs own approximately 900 acres of farm-
land adjacent to the Pamunkey River. Their land would be crossed by
one of the forcemains, and the Pamunkey River discharge structure
would be located adjacent to their property. They oppose the project
and have filed numerous court challenges against it.
Because the project involves the placement of "dredged or fill
material" in wetlands, Hanover County must get clearance from the
Army Corps of Engineers before beginning construction. 33 U.S.C.
§ 1344(a) (2003). There are two different methods of obtaining Army
Corps clearance for a project. First, the Corps can issue individual
permits on a case-by-case basis. This requires a resource-intensive
review that entails submission of voluminous application materials,
extensive site-specific research and documentation, promulgation of
public notice, opportunity for public comment, consultation with
other federal agencies, and a formal analysis justifying the ultimate
decision to issue or refuse the permit. See 33 C.F.R. §§ 320.4, 325.1-
325.3 (2003). Alternatively, interested parties can try to fit their pro-
posed activity within the scope of an existing general permit, which
acts as a standing authorization for developers to undertake an entire
category of activities deemed to create only minimal environmental
impact. 33 U.S.C. § 1344(e) (2003); 33 C.F.R. §§ 320.1(c), 330.1(b)-
(c) (2003).
The general permits at issue in this case are all Nationwide Permits
(NWPs). Activities falling within the scope of an NWP are automati-
cally authorized without any individualized inquiry, although precon-
struction notification of the Corps is required in some cases. 33
C.F.R. § 330.1(e) (2003). In cases where preconstruction notification
is required, the Corps will verify the applicability of the NWP to the
proposed activity. 33 C.F.R. § 330.1(e)(2). Since NWPs are "designed
to regulate with little, if any, delay or paperwork certain activities
having minimal [environmental] impacts," NWP verification is much
simpler than the individual permit process. 33 C.F.R. § 330.1(b)
(2003). If the Corps has concerns about a proposed project, however,
the Corps may exercise "discretionary authority" to restrict the other-
wise automatic application of the NWP program while its concerns
are addressed. 33 C.F.R. §§ 330.1(d), 330.5 (2003). The Corps' regu-
lations also direct the Corps to review any incoming individual permit
5
application for potential eligibility under existing NWPs, even if the
application itself does not so request. 33 C.F.R. § 330.1(f) (2003).
The current proposal is Hanover County's second major effort in
recent years to develop infrastructure to support its "Smart Growth"
policy. Originally, Hanover County submitted a significantly different
proposal to the Army Corps for the new wastewater treatment plant.
That draft of the project did not include the Lee Davis pipeline.
Rather, under that proposal, wastewater would have been delivered to
the new plant via a 5.6-mile pipeline called the Totopotomoy Creek
Interceptor. An initial review by the Army Corps concluded that the
Interceptor was the only element of the project that would have more
than minimal impact on wetlands. The Corps therefore issued NWP
verifications for all elements of the project except for the Interceptor
(i.e., the treatment plant, the discharge forcemain, and the Pamunkey
River discharge structure) and began to review the Interceptor as part
of a separate application for an individual permit.
Plaintiffs brought suit in federal court challenging the NWP verifi-
cations. They argued that the County was attempting to improperly
segment the Interceptor from the rest of the project and thereby evade
the full measure of required regulatory scrutiny. Because the Intercep-
tor was the only way to bring wastewater to the plant for treatment,
the district court agreed. It vacated the verifications, enjoined further
construction of the planned infrastructure, and ordered the Corps to
consider the various project elements as an integrated whole. Crutch-
field v. United States Army Corps of Eng'rs, 154 F. Supp. 2d 878
(E.D. Va. 2001) (remanding to Army Corps for reconsideration of the
wastewater treatment project as a whole); Crutchfield v. United States
Army Corps of Eng'rs, 192 F. Supp. 2d 444 (E.D. Va. 2001) (enjoin-
ing further construction on wastewater treatment project); Crutchfield
v. United States Army Corps of Eng'rs, 175 F. Supp. 2d 835 (E.D. Va.
2001) (maintaining injunction against further plant construction).
After those rulings, Hanover County made substantial changes to
the planned project and submitted a revised permit application to the
Corps. The Totopotomoy Creek Interceptor, which had been the prin-
cipal focus of plaintiffs' original complaint, was dropped from the
application. The newly proposed Lee Davis pipeline was presented as
a fully functional replacement for the Interceptor, with wastewater
6
flow capacity comparable to that of the Interceptor. Where the Inter-
ceptor would have permanently impacted 3.84 acres of wetlands,
however, the Lee Davis pipeline (which runs through a different part
of the County) is expected to impact only 30 square feet of wetlands.
Hanover County has apparently dropped all plans to construct the
Interceptor at any time in the foreseeable future. The Interceptor has
been eliminated entirely from the Army Corps application, as well as
from Hanover County's Capital Improvement Plan. Plans to construct
a pump station necessary for the Interceptor have been abandoned,
and the county has ceased its efforts to obtain easements necessary to
construct the Interceptor.
The Army Corps assigned new staff with no previous involvement
in the project to review the County's revised application. The Corps
initially planned to process the application through the individual per-
mit process rather than through the NWP verification process, and
informed both the County and the Court of this intention. It deter-
mined that the revised application included all "reasonably related"
activities, as required for individual permit applications by 33 C.F.R.
§ 325.1(d)(2), and it issued a public notice soliciting comments about
the possible issuance of an individual permit. Over the next several
months, continuing to act in accordance with the individual permitting
procedure, the Corps received public comment, conducted several
field visits, solicited feedback from other federal and state regulatory
agencies, and continued to analyze whether the project as submitted
represented another effort to improperly segment a larger project so
as to avoid full environmental review. As the district court observed,
none of this was necessary for verification under the NWP program.
Numerous state and federal agencies commented on the project,
collectively concluding that the proposed construction would have no
adverse impact on the environment, water quality, recreational facili-
ties, scenic beauty, or historic resources of Virginia. The Virginia
Department of Health advised the Corps that the water from the dis-
charge pipe would actually be cleaner than the water in the Pamunkey
River, and that the treatment plant and discharge structure were
"where [they] ought to be."
Plaintiffs maintained their objections to the project, however,
charging that the application did not include all of the construction
7
necessary for the project and therefore did not disclose all of the rea-
sonably related activities planned by the County. Much of the dispute
over this issue has focused on the volume of sewage that the project
would process. Plaintiffs contended that, notwithstanding the capacity
of the treatment plant itself, the new sewage associated by the Coun-
ty's rapid growth would be generated principally in areas not serviced
by the Lee Davis pipeline. They therefore argued that the revised pro-
posal would not substantially assist Hanover County in remaining
under the cap of its wastewater processing contract with Henrico
County.
Plaintiffs also pointed to a separate application by a private devel-
oper for a permit to extend a sewer line in connection with the
intended construction of a multiuse development at Bell Creek. Plain-
tiffs argued that this private sewer line should have been included as
part of the County's application. When the plans for the Bell Creek
development had first been proposed to Hanover County, the private
developer had assumed that the development's sewer lines would
connect to the Interceptor. Since the Interceptor was not approved,
however, the developer was forced to submit plans for extension of
its sewer line to another spot in the county system. Plaintiffs noted
that 2,200 feet of this 7,500-foot sewer line is slated to run along the
5.6-mile path of the formerly proposed Interceptor. After the sewer
line is complete, it will be dedicated as a public sewer main and -
if the wastewater treatment plant is completed - divert sewage from
the Bell Creek development to the new wastewater treatment plant.
After reviewing these various contentions, the Corps determined
that all activities reasonably related to the project had been fully dis-
closed, and that the application presented a single and complete proj-
ect. The Corps investigated plaintiffs' claim that the abandoned
Interceptor would be built and found that their concerns were not
credible. The Corps also concluded that the Bell Creek sewer exten-
sion could not properly be considered part of the wastewater treat-
ment plant project. The Corps concluded that the sewer extension
could not serve the function of the original Interceptor, in large part
because the Bell Creek sewer extension is sized to serve the Bell
Creek development and will have only forty percent of the capacity
that the Interceptor would have had. The Corps further concluded that
the revised project's impact on wetlands would be "minimal, both
8
individually and cumulatively." It also found that the discharge of
treated wastewater into the Pamunkey River would not damage the
water quality in that river.
Based on these findings, the Corps verified four NWPs for the con-
struction of Hanover County's revised wastewater treatment plant
project in April 2002. The decision was accompanied by a 47-page
memorandum and an administrative record of roughly 6,000 pages.
Plaintiffs appealed the new NWP verifications to the district court.
They alleged that the revised application did not include all of the
"reasonably related" means by which the County would deliver sew-
age to the proposed plant in the future. They argued that if the Corps
had considered other, properly related infrastructure plans, the envi-
ronmental impact of the proposal would have been far greater, requir-
ing evaluation of the application through the individual permit
process.
The district court applied rigorous scrutiny to the Army Corps'
decision and held that the present project was not "single and com-
plete." 214 F. Supp. 2d at 651-52. The court held that the purpose of
Hanover County's project was to "off-load[ ] enough sewage to allow
it to remain within the 5.4 mgd limit of its contract with Henrico
[County]." Id. at 629. The court then engaged in an independent
mathematical calculation of projected wastewater flows and deter-
mined that the proposed project was unlikely to enable Hanover
County to stay within the contractual limits after 2005. Id. at 626 &
nn.42-43, 629-31. The court therefore decided that other potential
projects would have to come online to achieve the project's purpose,
and that those projects should have been included in the Corps' analy-
sis. Id. at 635-37. The court also held that there was strong evidence
that the Bell Creek sewer was reasonably related to the revised project
and should also have been included in the Corps' analysis. Id. at 632-
35. Finally, the court held that the Corps had erred procedurally by
abandoning the individual permit process and authorizing the project
under the NWP program instead. Id. at 638. For all these reasons, the
court concluded that the Corps' decision was arbitrary and capricious,
set aside the NWP verification, and remanded to the Corps for recon-
sideration with numerous specific instructions. Id. at 654-55. This
appeal ensued.
9
II.
Our review of the district court's decision in this case is de novo
as to both law and fact, Roanoke River Basin Ass'n v. Hudson, 940
F.2d 58, 61 (4th Cir. 1991), since the district court here stands in no
better position than an appellate court in reviewing the administrative
record. MM v. School Dist. of Greenville County, 303 F.3d 523, 531
(4th Cir. 2002).
Our concern with the district court's decision begins with the stan-
dard of review. Under the deferential standard established by the
Administrative Procedure Act, federal courts can overturn an admin-
istrative agency's decision if it was "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law." 5 U.S.C.
§ 706(2) (2003). "Although our inquiry into the facts is to be search-
ing and careful, this court is not empowered to substitute its judgment
for that of the agency." Hughes River Watershed Conservancy v.
Johnson, 165 F.3d 283, 288 (4th Cir. 1999). Particularly with envi-
ronmental statutes such as the Clean Water Act, the regulatory frame-
work is exceedingly "complex and requires sophisticated evaluation
of complicated data." Trinity Am. Corp. v. EPA, 150 F.3d 389, 395
(4th Cir. 1998). We therefore do not "sit as a scientific body" in such
cases, "meticulously reviewing all data under a laboratory micro-
scope." Natural Res. Def. Council, Inc. v. EPA, 16 F.3d 1395, 1401
(4th Cir. 1993). Rather, if the agency "fully and ably explain[s] its
course of inquiry, its analysis, and its reasoning sufficiently enough
for us to discern a rational connection between its decision-making
process and its ultimate decision," we will let its decision stand. Trin-
ity Am. Corp, 150 F.3d at 395 (internal punctuation omitted).
A reviewing court must defer not only to an administrative agen-
cy's findings of fact but also to that agency's reasonable interpreta-
tions of governing law. If it is apparent that Congress would expect
the agency "to speak with the force of law when it addresses ambigu-
ity in [a] statute," a reviewing court must accept the agency's con-
struction of that statute so long as it is "reasonable." United States v.
Mead Corp., 533 U.S. 218, 229 (2001); see generally Chevron U.S.A.
Inc. v. Nat'l Res. Def. Council, 467 U.S. 837, 842-45 (1984). And
courts must accept an agency's interpretation of its own regulations
unless that interpretation is "plainly erroneous or inconsistent with the
10
regulation." Sigma-Tau Pharmaceuticals, Inc. v. Schwetz, 288 F.3d
141, 146 (4th Cir. 2002) (internal punctuation omitted).
Despite acknowledging the governing caselaw, the district court in
this case declined to accord the necessary deference to the Army
Corps' decision. Noting that the Corps' initial decision had been over-
turned as arbitrary and capricious, the district court asserted that the
Corps' review of the second project had reached "virtually the same
decision after judicial remand." 214 F. Supp. 2d 593, 621 (citing Nat-
ural Res. Def. Council, Inc. v. SEC, 606 F.2d 1031, 1049 n.23 (D.C.
Cir. 1979)). It therefore decided that the Corps' most recent decision
should be assessed under "heightened scrutiny" and proceeded to
engage in a highly exacting, essentially de novo examination of the
record, repeatedly rejecting the Corps' conclusions and drawing its
own independent inferences from the evidence. Id.
This was an erroneous approach that turned the Administrative
Procedure Act on its head. In the first place, it is not true that the
Corps reached virtually the same decision after the judicial remand.
The County presented a substantially new proposal, eliminating the
only problematic element from the prior proposal (the Interceptor)
and replacing it with a completely different structure (the Lee Davis
pipeline) located in a different part of the County. And whatever the
district court thought of the Corps' reasoning process during its evalu-
ation of the original proposal, it is uncontested that the Corps assigned
new staff with no previous connection to the project to review the
revised proposal.
The Corps' dedication to a credible decisionmaking process on
remand was clear: it devoted more than five months to reviewing the
application, engaged in an extensive and ongoing dialogue with the
County, considered comments from at least eight other federal and
state environmental and health agencies, and generated an administra-
tive record of more than 6,000 pages. The district court thus erred ini-
tially by failing to accord the proper statutory deference to the Corps'
decision.
III.
Plaintiffs' first major challenge to the Corps' decision is proce-
dural. They argue that, because the Corps initially treated the Coun-
11
ty's proposal as an application for an individual permit, it was
improper for the Corps to subsequently issue an NWP verification in
place of an individual permit.
The district court pointed out, quite correctly, that the Corps began
its evaluation of the revised application in accordance with the regula-
tions applicable to individual permits. Id. at 638-39. But this did not
render the Corps' eventual decision to approve the proposed project
via NWP verification rather than an individual permit any less consis-
tent with the Corps' mandate. The governing regulations specifically
require the Corps to "review all incoming applications for individual
permits for possible eligibility under . . . NWPs." 33 C.F.R. § 330.1(f)
(2003) (emphasis added). If any proposed activity "complies with the
terms and conditions of one or more NWP," the Corps "should verify
the authorization and so notify the applicant," even if the applicant
never sought review under the easier approval process. Id. In fact, if
an application for an individual permit is even close to qualifying for
an NWP, the regulation goes so far as to require the Corps to alert
applicants to that fact and explain to them how they could modify the
project to make it eligible for NWP verification. Id. The Corps'
review of the County's application for eligibility under the NWP pro-
gram was thus an essential part of the ordinary individual permit pro-
cess. The Corps did no more by verifying the NWPs than what its
regulations required it to do.
The district court held that § 330.1(f) could not justify the Corps'
decision to switch to the NWP verification process because the Corps
did not specifically cite to that regulation in its decision document.
214 F. Supp. 2d at 643 (citing SEC v. Chenery Corp., 332 U.S. 194,
196 (1947) (holding that the propriety of agency actions must be
judged "solely by the grounds invoked by the agency," and that a
reviewing court cannot affirm an agency's action "by substituting
what it considers to be a more adequate or proper basis")). The district
court therefore refused to accept what it termed a "classic post-hoc
rationalization" for the agency's action. Id. at 645.
This characterization of § 330.1(f), however, misunderstands the
nature of that regulation. "We are dealing here not with the reasoning
by which an agency seeks to justify its actions, but with a pure ques-
tion of law." Indep. U.S. Tanker Owners Committee v. Skinner, 884
12
F.2d 587, 591 (D.C. Cir. 1989). The question is simply whether that
regulation requires the Corps - as it did here - to review all incom-
ing applications for NWP eligibility. Cf. id. (rejecting "post hoc ratio-
nalization" argument which was based on an agency's failure to cite
regulatory authority in its final decision). As explained above, there
is no question that the regulation does so require. Indeed, the County
properly points out that it is actually entitled to the mandatory NWP
screening under § 330.1(f); even if it were so inclined, the Corps
could scarcely withhold the benefits of that regulation from the
County by the simple expedient of failing to cite to it. As a matter of
law, then, the Corps simply acted in direct compliance with its gov-
erning regulations.
The district court held in the alternative that § 330.1(f) cannot sup-
port the Corps' decision because the Corps did not put interested par-
ties on proper notice of the potential NWP verification. The court
acknowledged that "notice and comment ordinarily is unnecessary
where the Corps determines that a project may proceed under the
authority of NWPs," and also that "no precise regulation mandates
that the Corps must notify interested parties of a decision to switch
from the individual permitting mode to the NWP mode." 214 F. Supp.
2d at 644 n.57. But the court argued that it was "unfair" for the Corps
to mislead plaintiffs into believing that the County's application
would be reviewed under the individual permitting process, because
the Corps had realized early on that the revised proposal might qual-
ify for an NWP verification. Id. at 644-45.
Once again, however, the district court failed to acknowledge the
nature of the procedures for reviewing an individual permit applica-
tion. As noted above, the normal individual permitting process
requires evaluation of any permit application for eligibility under an
NWP. 33 C.F.R. § 330.1(f) (2003). Plaintiffs were thus already on
notice that application assessment under the individual permit frame-
work necessarily included review for potential NWP eligibility. There
can be nothing "unfair," misleading, or secretive about the Corps pro-
ceeding in precise accordance with its openly promulgated regula-
tions.
Plaintiffs further contend that § 330.1(f) does not apply because the
revised proposal was not an "incoming application" within the regula-
13
tory meaning of that term when the Corps decided to verify its eligi-
bility for NWPs. They observe that automatic NWP eligibility review
applies only to "incoming applications for individual permits." Id.
They further note that under § 330.1(f), if a District Engineer notifies
an applicant of project modifications which could render his proposal
eligible for an NWP, the Engineer should nonetheless "proceed with
processing the application as an individual permit and take the appro-
priate action within 15 calendar days of receipt, in accordance with
33 C.F.R. § 325.2(a)(2), unless the applicant indicates that he will
accept the modifications or conditions." Id. Plaintiffs therefore argue
that, in context, an "incoming application" must be understood as an
application which arrived no more than fifteen days before the
§ 330.1(f) decision. Thus, because the Corps verified NWP eligibility
in this case after that fifteen-day period had expired, plaintiffs argue
that the NWP verification cannot be justified under § 330.1(f).
Plaintiffs' construction of the regulation's text is strained, to say
the least. Section 330.1(f) simply does not establish a deadline for the
Corps's decision to approve an individual permit application under an
NWP. "Incoming application," a phrase not defined elsewhere in the
regulations, is most naturally read as another way of referring to any
application that has been received by the Corps. And the fifteen-day
period referenced by plaintiffs is simply and solely a time frame for
taking "appropriate action . . . in accordance with 33 C.F.R.
§ 325.2(a)(2)." Id. (emphasis added). Section 325.2(a)(2) is the regu-
lation requiring the District Engineer to determine within fifteen days
of receiving a permit application whether the application is complete,
and then to issue public notice of the pending review if it is. The
quoted section of § 330.1(f) thus does no more than admonish the
Corps, even if it is considering verifying an NWP for a proposed proj-
ect that is in the individual permitting process, not to delay in fulfill-
ing its existing obligations under § 325.2(a)(2). The language
certainly does not establish a deadline for sua sponte NWP verifica-
tion. It would simply confound common sense to assume that
§ 330.1(f) requires the Corps to decide immediately and irrevocably
- at the very outset of the lengthy individual permit application pro-
cess, and regardless of the size and complexity of the construction
project - whether a proposed project is eligible for one of the Corps'
many NWPs.
14
We therefore hold that the procedures followed by the Corps in its
review of Hanover County's permit application were lawful.1
IV.
Plaintiffs' other principal challenge to the Corps' NWP decision
goes to the substance of the County's application itself. Even if the
Corps is generally allowed to switch from individual permitting to the
NWP verification process in circumstances such as these, plaintiffs
contend, the County's revised proposal should not have been verified
as eligible for multiple NWPs because it was not a "single and com-
plete project."2
In order to qualify for approval under the NWPs at issue in this
case, a proposal must constitute a "single and complete project." 33
C.F.R. § 330.6(c) (2003). This means that the proposal must represent
"the total project proposed or accomplished by one owner/developer
or partnership or other association of owners/developers." 33 C.F.R.
§ 330.2(i) (2003). The test governing this inquiry is whether the proj-
ect has "independent utility" - or in other words, whether it "would
____________________________________________________________
1 In view of the foregoing discussion, we have no need to take up
appellants' argument that the Corps' discretionary authority under 33
C.F.R. § 330.4(e)(3) also justified its verification of the revised project's
eligibility for an NWP.
2 Plaintiffs also contend that the County's application for an individual
permit should have been rejected as incomplete before it ever got to the
stage of automatic NWP eligibility review, because the application failed
to include all activities that were "reasonably related" to the proposed
project. See 33 C.F.R. § 325.1(d)(2) (2003). While the parties disagree
about whether this requirement even applies to a case where the proposal
was ultimately approved under the NWP program and not under an indi-
vidual permit, we need not resolve that dispute now. The Corps and the
District Court both assumed - and none of the parties have contested
- that these two standards (the "reasonably related activities" standard
for individual permits and the "single and complete project" standard for
verifications under multiple NWPs) require essentially the same thing.
214 F. Supp. 2d at 646-48. At least in this case, then, for the same rea-
sons that the County's application passes muster under the "single and
complete project" standard, it also satisfies the "reasonably related activi-
ties" requirement of § 325.1(d)(2).
15
be constructed absent the construction of other projects in the project
area." 67 Fed. Reg. 2020-01, 2094 (Jan. 15, 2002). As the district
court noted, this ensures that the Corps has complete information
about the full dimension and reach of a project so that it can make an
informed decision about the project's cumulative effect on wetlands.
214 F. Supp. 2d at 648. This in turn prevents applicants from circum-
venting review of a project which would have more than minimal
environmental impact by breaking it up into several smaller propos-
als, each of which would have sufficiently minimal impact to qualify
for NWP verification.
Plaintiffs contend that a "fundamental purpose" of the revised proj-
ect is to enable the County to avoid exceeding the 5.4 mgd limitation
on its sewage treatment contract with Henrico County. They then
argue that the project as currently proposed will be unable to stave off
that eventuality for more than a few years, and that it therefore neces-
sarily contemplates further related additions in the near future.
Despite the fact that the Lee Davis pipeline's initial peak flow capac-
ity is 2.6 mgd and could easily be raised to 7.1 mgd, plaintiffs contend
that the Lee Davis pipeline will never actually offload significantly
more than 0.8 mgd of wastewater (the amount projected for the first
year of the pipeline's operation) from Henrico County's processing
facilities. They ground this conclusion on an assertion that the County
has not specifically demonstrated that the area served by the pipeline
will ever generate significantly more sewage than that first-year fig-
ure. If plaintiffs' contentions are correct, the great majority of excess
sewage will be generated in areas not serviced by the Lee Davis pipe-
line and therefore inaccessible to the new wastewater treatment plant.
Relying on this assumption, plaintiffs assert that the amount of waste-
water treated by Henrico would be at its contractual cap of 5.4 mgd
by 2007.
The basic problem with plaintiffs' argument is that it seeks to over-
ride and redefine the stated purpose of the County's project. As
explained in the Corps' decision document, that purpose is very
broad: "to provide additional wastewater treatment capacity so that
the County may implement [its] adopted comprehensive plan for
`Smart Growth', limiting high density, suburban-style growth to a
small portion of the County (20%) and preserving the rural character
of the remainder of the county." Despite this clear language, plaintiffs
16
and the district court erroneously treated the project as though it were
targeted at a far narrower goal: staying within the contractual cap of
the agreement with Henrico County without making any other future
improvements. Contrary to plaintiffs' assertions, however, the Corps
was justified in concluding that the project could independently
accomplish its stated goal. The County has chosen to create an enor-
mous new source of capacity for wastewater treatment so as to allow
for population growth and maximize flexibility for infrastructure
planning in the future. Simultaneously, it has enacted medium-term
plans to utilize a portion of that new capacity by channeling sewage
through the Lee Davis pipeline. Plaintiffs do not deny that both of
these purposes will be fulfilled by the revised project.
There is no doubt that other conveyance mechanisms will eventu-
ally be needed in order to take full advantage of the treatment plant's
capacity. Indeed, some of them have already been tentatively
sketched out. But it is simply not possible for the County to predict
precisely when, where, and how those sewer lines will actually be
constructed. Municipal plans for the location and construction of
sewer lines involve so many variables that virtually the only sure
thing about them is that they will change. Growth in a county as a
whole slows and accelerates. The distribution of growth within the
county shifts and fluctuates. State and federal regulatory frameworks
change. For all these reasons, the Clean Water Act does not require
counties to set in stone their infrastructure plans for the next fifty
years. Rather, the question with any given application is whether the
proposed project is reasonably defined to include all of its definitely
planned, concretely identifiable elements. And the presumptive arbi-
ter of the point at which speculative or inchoate plans become suffi-
ciently foreseeable to require inclusion in an NWP verification
request is the Army Corps of Engineers, not an Article III court.
In fact, even if the revised project were principally intended to keep
Hanover County under the Henrico contractual cap for a significant
period of time, there was ample evidence to support the Corps' find-
ing that the revised project will do exactly that. To begin with, the
district court failed to defer to the Corps' finding that the Lee Davis
pipeline will offload wastewater flow "in quantities nearly compara-
ble to the [Interceptor]," which if true would mean that Hanover
would be able to "remain within its contractual limits . . . for an addi-
17
tional 7 to 10 years."3 In rejecting this conclusion, plaintiffs argued
that Hanover County had not sufficiently supported its statement that
development in the County would occur at a significantly faster rate
within the Lee Davis pipeline service area.4 Plaintiffs therefore
assumed that the total amount of wastewater offloaded through the
Lee Davis pipeline would be dramatically smaller than the total
increase in wastewater production throughout the county. This may be
one permissible inference from the evidence. The contrary inference,
however, is far from arbitrary or capricious. And the Corps made pre-
cisely that contrary inference, concluding that a disproportionate
quantity of the new sewage would be accessible to the Lee Davis
pipeline.
The district court argued that the Corps' finding on this score relied
____________________________________________________________
3 It is important to note that these calculations did not rely on the pres-
ence of the Bell Creek sewer line. There was sufficient evidence in the
record to support the Corps' conclusion that the Bell Creek sewer is
properly understood, not as a piece of the County's revised proposal, but
as an integral element of a separate, self-contained unit - the housing
development and its appurtenant infrastructure. The anti-segmentation
principle does not require the aggregation of a series of independent proj-
ects simply because they may have some points of common contact. Cf.
Save Barton Creek Ass'n v. Fed. Highway Admin., 950 F.2d 1129, 1139-
44 (5th Cir. 1992) (discussing segmentation and independent utility prin-
ciples in context of National Environmental Policy Act); Coalition on
Sensible Transp., Inc. v. Dole, 826 F.2d 60, 68-70 (D.C. Cir. 1987)
(same). The Bell Creek sewer is certainly not, as plaintiffs contend, a
tacit replacement for the original Totopotomoy Creek Interceptor. The
Bell Creek sewer will stretch over only 0.42 miles of the originally pro-
posed 5.6-mile Interceptor, and it will have scarcely forty percent of the
Interceptor's capacity.
4 We note but do not address the County's contention that the reason
it did not further flesh out its findings in this area was because of the
extensive attention it paid to a vast array of other issues raised by both
the Corps and plaintiffs. It appears that the first time plaintiffs presented
their calculations regarding insufficient wastewater flow through the Lee
Davis pipeline was during proceedings before the district court. See Vt.
Yankee Nuclear Power Corp. v. Nat'l Res. Def. Council, Inc., 435 U.S.
519, 553-54 (1978) (objections must be lodged before administrative
agencies with reasonable specificity).
18
entirely on information provided to them by the County. 214 F. Supp.
2d at 631. Along with plaintiffs, the district court contended that the
Corps had a responsibility to independently investigate whether
enough of Henrico County's new wastewater would be generated in
the Lee Davis pipeline service area to keep the burden on Henrico
County beneath the contractual cap for a substantial period of time.
Id. Precedent does not support the district court's position. See
Friends of the Earth v. Hintz, 800 F.2d 822, 834-36 (9th Cir. 1986)
("The Corps is not a business consulting firm" and may therefore base
its analysis "entirely upon information supplied by the applicant.").
For us to require the Corps to do such independent studies rather than
reasonably relying on extensive studies given to them by applicants
"would place unreasonable and unsuitable responsibilities on the
Corps," which receives thousands of permit applications per year. Id.
at 835-36. The Corps was therefore justified in relying on a County
study which concluded that a "large amount of the development that
is projected to occur in the immediate future in Hanover will be
served by [the Lee Davis] pump station." This finding in turn pro-
vided ample support for the conclusion that the Lee Davis pipeline
would draw a sufficient proportion of the incremental sewage produc-
tion to keep Hanover County within its contractual limit for a substan-
tial period of time.
There was also evidence that plaintiffs' prediction of excessive
sewage processing demand was inaccurate because of a mathematical
error: the failure to use comparable figures in a comparative calcula-
tion. Plaintiffs projected aggregate county sewage production based
on the volume of wastewater flow generated by the county in a year
of wet weather. But they projected wastewater flow through the Lee
Davis pipeline based on the volume generated from that part of the
county during a drought year. Unsurprisingly, there was evidence that
this apples and oranges comparison yielded a dramatic understate-
ment of the relative capacity of the Lee Davis pipeline to offload sew-
age flow from Henrico County's processing plant. Indeed, the district
court acknowledged that the County's calculations suggested that the
revised project - standing alone - would keep Hanover County
within its contractual cap for at least ten and possibly as many as sev-
enteen years. 214 F. Supp. 2d at 630. Proper respect for the Corps'
decisionmaking process required deference to what the district court
19
itself recognized as reasonable calculations supporting the Corps' deci-
sion.5
We therefore hold that it was neither arbitrary nor capricious for
the Corps to decide that Hanover County's revised proposal was a
single and complete project. We reverse the district court and rein-
state the Corps' verification of the proposal's eligibility for NWP
approval.
V.
In the final analysis, plaintiffs' effort to use environmental regula-
tions to thwart the County's wastewater management efforts is mis-
guided, not only under the letter of those regulations, but in light of
their spirit as well. Every state and federal agency that reviewed this
application either commented favorably on the revised proposal or
noted no objection to it after further study. No private environmental
group has intervened in an effort to stop or modify the County's
plans. And there is ample evidence to suggest that Hanover County's
proposal is an environmentally sound project that promises to benefit
the County in the long run. The proposed project will treat and elimi-
nate septic wastewater, thus managing what could otherwise present
a significant health risk. Equally important, the treatment plant and
supporting infrastructure is intended to play a critical role in Hanover
County's environment-friendly "Smart Growth" policy. County plan-
ners proposed this project in the first place to enable the construction
of concentrated development tracts (which require sewers rather than
septic systems), and thereby to help minimize the footprint of housing
developments and preserve a significant portion of the County in a
pristine and rural state. Evidence available to the Corps thus sug-
gested that, far from endangering Hanover County's natural environ-
____________________________________________________________
5 The district court argued that the paper record from the Corps' admin-
istrative review did not explicitly include independent calculations made
by the Corps itself. Critically, however, the administrative record does
include the figures on which those conclusions were based. This suffices
to demonstrate a "rational connection between [the Corps'] decision-
making process and its ultimate decision." Trinity Am. Corp, 150 F.3d at
395 (internal punctuation omitted).
20
ment, the wastewater treatment plant showed every likelihood of
helping to protect it.
We reverse the district court's order and remand the case to the dis-
trict court with directions to enter judgment for the defendants.
REVERSED
21