Citizens of the Karst, Inc. v. United States Army Corps of Engineers

160 F. Supp. 3d 451, 82 ERC (BNA) 1456, 2016 U.S. Dist. LEXIS 17905, 2016 WL 593576
CourtDistrict Court, D. Puerto Rico
DecidedFebruary 12, 2016
DocketCivil No. 14-1592 (FAB)
StatusPublished

This text of 160 F. Supp. 3d 451 (Citizens of the Karst, Inc. v. United States Army Corps of Engineers) is published on Counsel Stack Legal Research, covering District Court, D. Puerto Rico primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Citizens of the Karst, Inc. v. United States Army Corps of Engineers, 160 F. Supp. 3d 451, 82 ERC (BNA) 1456, 2016 U.S. Dist. LEXIS 17905, 2016 WL 593576 (prd 2016).

Opinion

OPINION AND ORDER

BESOSA, District Judge.

Citizens of the Karst, Inc., Fernando Marquez-Loyola, and Javier Biaggi-Ca-ballero (collectively, “plaintiffs”) brought this action against the United States Army Corps of Engineers (“Corps”), Thomas P. Bostick, in his official capacity as United States Army Chief of Engineers and Commanding General of the Corps, and Alan M. Dodd, in his official capacity as District Commander of the Corps Jacksonville District (collectively, “Corps defendants”). (Docket No. 35.) Plaintiffs claim that the Corps violated the Clean Water Act (“CWA”) and Corps regulations by not providing adequate public notice before issuing a permit authorizing Energy Answers Arecibo, LLC (“Energy Answers”) to fill jurisdictional waters. (Docket No. 35 at p. 2.) Plaintiffs include Energy Answers as a defendant pursuant to Federal Rule of Civil Procedure 19(a) because it has a substantial interest in the case. Id. at p. 5.

On the same day that they filed their second amended complaint, plaintiffs moved for summary judgment. (Docket No. 37.) Energy Answers opposed. (Docket No. 43.) The Corps defendants also opposed and filed a cross-motion for summary judgment. (Docket Nos. 44, 44-2.) Plaintiffs responded, (Docket No. 45), and the Corps defendants replied, (Docket No. 46). For the reasons that follow, the Court GRANTS summary judgment in defendants’ favor and DENIES plaintiffs’ motion for summary judgment.

I. BACKGROUND

A. Plaintiff Marquez’s Declaration

Plaintiff Fernando Marquez-Loyola (“Marquez”) submitted a declaration under penalty of perjury to support plaintiffs’ standing to bring suit. (Docket No. 37-2.) The Court draws the following uncontested facts from his declaration.

Marquez is a resident of Arecibo, Puerto Rico. (Docket No. 37-2 at p. 1.) Since 1998, Marquez has owned two buildings in La Puntilla sector of Arecibo. Id. at p. 3. He lives and works in one of the properties and rents out parts of the other for commercial, cultural, and residential purposes. Id. His properties are located adjacent to (and near the mouth of) the Rio Grande de Arecibo. See id.; Docket No. 37-3 (image depicting aerial view of Rio Grande de Arecibo mouth and the town of Arecibo); Docket No. 37-4 (image depicting aerial view of Marquez’s properties adjacent to the Rio Grande de Arecibo); Docket No. 37-5 (photo taken from Marquez’s property showing unobstructed view of the river).

[454]*454La Puntilla sector and Marquez’s properties are susceptible to flooding from the Rio Grande de Arecibo. (Docket No. 37-2 at p. 3.) Marquez’s properties flooded in 1998, 2003, 2010, 2012, and have flooded on other occasions. Id. During severe storms, the flood waters reached high levels and caused property damage. Id. at p. 4; see Docket Nos. 37-7 through 37-13 (photos depicting floods on Marquez’s street and their effects on his properties). As a result, Marquez lives in constant fear of personal harm and property loss from floods. (Docket No. 37-2 at p. 5.)

Marquez’s properties are located about 1.5 miles from the area where Energy Answers will discharge fill material into the Rio Grande de Arecibo floodway pursuant to the permit issued by the Corps. (Docket No. 37-2 at p. 4.) Marquez is very concerned about how this discharge will affect flooding of the Rio Grande de Areci-bo and the potential consequences to his property and safety. Id. at p. 5. This concern causes him emotional distress. Id.

B. Administrative Record

Corps defendants provided the Court with the 2,006-page Administrative Record (“AR”) in PDF format on a CD. See Docket Nos. 19; 19-1 (certification and index of the AR). The Court draws the following facts from the AR.

Energy Answers applied for a permit pursuant to section 404 of the CWA, 33 U.S.C. § 1344, to construct a waste to energy resource recovery facility in Areci-bo, Puerto Rico. (AR at p. 1473.) The project would require filling 2.42 acres of Wetlands adjacent to the Rio Grande de Arecibo. Id. To compensate for this impact to the wetlands, Energy Answers proposed to enhance approximately 7.5 acres of wetlands 10.3 kilometers from the project area by planting woody wetland species and native plants. Id. at p. 1475. Energy Answers also proposed preserving 26.1 acres of the project área for conservation and floodwáy management. Id.

The Corps issued public notice of Energy Answers’ application and proposals on July 11, 2011, and set a thirty-day period to accept public comments. See AR at pp. 144, 1473-77. Plaintiffs submitted comments on August 5, 2011. Id. at pp. 1313-21. Among other things, plaintiffs commented that the public notice lacked critical information necessary to comment on the project’s compensatory mitigation meaningfully. Id. at p. 1318. The Corps also received comments from the Environmental Protection Agency (“EPA”), which expressed concern that the proposed mitigation might not be adequate. Id. at pp. 1309, 1311. The National Marine Fisheries Service submitted a comment recommending that wetlands be established on the project site. Id. at p. 1307.

In January 2012, Energy Answers revised its proposed mitigation and submitted a detailed mitigation plan. (AR at pp. 1019-43.) In this mitigation plan, Energy Answers abandoned its original proposal of enhancing 7.5 acres of wetlands 10.3 kilometers from the project area. See id. Energy Answers instead proposed to create 9.31 acres of wetlands on the project site’s western portion, which is part of the Rio Grande de Arecibo floodway. Id. at p. 1023.

On November 8, 2012, Energy Answers submitted a hydrologic-hydraulic study (“HH study”) to the Corps. (AR at pp. 842-43.) The HH study was prepared in July 2010 and predicts that Energy Answers’ new facility will cause water levels in some areas of the Rio Grande de Arecibo flood-way to increase by 0.3 meters. Id. at pp. 869-70, 876-77, 881. The study does not address or predict the new facility’s impact on the water level at the mouth of the Rio Grande de Arecibo or in La Puntilla sector of Arecibo. See id. at p. 881.

[455]*455On April 17, 2014, the Corps issued a permit to Energy Answers pursuant to section 404 of the CWA. (AR at p. 2.) The permit specifies that, as compensatory mitigation, Energy Answers must create 9.31 acres of wetlands on the project site, enhance those new wetlands with 900 trees, and preserve 27.67 acres of the project site with a conservation easement. Id. at pp. 10-11.

II. DISCUSSION

Plaintiffs claim that the Corps violated the CWA and Corps regulations when it issued a CWA section 404 permit to Energy Answers without subjecting the approved compensatory mitigation to public notice and comment. (Docket No. 35 at pp. 16-17.) Plaintiffs argue that because the mitigation announced in the public notice (enhancing 7.5 acres of wetlands 10.3 kilometers from the project site) was “totally different” than the mitigation ultimately approved in the permit (creating 9.31 acres of wetlands on the project site), the Corps was required to issue a supplemental public notice to announce that change and give the public an opportunity to comment on it. (Docket No. 37 at pp. 19-21.)

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Fund for Animals, Inc. v. Rice
85 F.3d 535 (Eleventh Circuit, 1996)
Baker v. Carr
369 U.S. 186 (Supreme Court, 1962)
Lujan v. Defenders of Wildlife
504 U.S. 555 (Supreme Court, 1992)
Massachusetts v. Environmental Protection Agency
549 U.S. 497 (Supreme Court, 2007)
Summers v. Earth Island Institute
555 U.S. 488 (Supreme Court, 2009)
Nulankeyutmonen Nkihtaqmikon v. Impson
503 F.3d 18 (First Circuit, 2007)
River Street Donuts, LLC v. Napolitano
558 F.3d 111 (First Circuit, 2009)
Atieh v. Riordan
727 F.3d 73 (First Circuit, 2013)
Sierra Club v. Pena
915 F. Supp. 1381 (N.D. Ohio, 1996)
Friends of the Earth v. Hall
693 F. Supp. 904 (W.D. Washington, 1988)
National Wildlife Federation v. Marsh
568 F. Supp. 985 (District of Columbia, 1983)
Sierra Club v. U.S. Army Corps of Engineers
935 F. Supp. 1556 (S.D. Alabama, 1996)
Ashley Creek Phosphate Co. v. Norton
420 F.3d 934 (Ninth Circuit, 2005)
Sierra Club v. Slater
120 F.3d 623 (Sixth Circuit, 1997)
Town of Abita Springs v. U.S. Army Corps of Engineers
153 F. Supp. 3d 894 (E.D. Louisiana, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
160 F. Supp. 3d 451, 82 ERC (BNA) 1456, 2016 U.S. Dist. LEXIS 17905, 2016 WL 593576, Counsel Stack Legal Research, https://law.counselstack.com/opinion/citizens-of-the-karst-inc-v-united-states-army-corps-of-engineers-prd-2016.