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Raymond Proffitt Foundation v. U.S. Army Corps of Engineers

September 03, 2003

RAYMOND PROFFITT FOUNDATION; LEHIGH RIVER STOCKING ASSN., APPELLANTS
v.
U.S. ARMY CORPS OF ENGINEERS; DEBRA M. LEWIS, LT. COL., DISTRICT COMMANDER



Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 99-cv-04038) District Judge: The Honorable Anita B. Brody

Before: Nygaard, Smith, Circuit Judges, and Irenas, District Judge*fn1

The opinion of the court was delivered by: Smith, Circuit Judge.

PRECEDENTIAL

Argued: July 9, 2003

OPINION OF THE COURT

The Raymond Proffitt Foundation and the Lehigh River Stocking Association (collectively, the "Foundation") appeal from an order of the Eastern District of Pennsylvania granting summary judgment to the U.S. Army Corps of Engineers ("Corps"). The District Court concluded that the Water Resources Development Act of 1990 ("WRDA"), the statute the Foundation asserts the Corps is violating, provides no "law to apply" to the facts this case presents and that the Corps' actions are therefore not subject to judicial review under the Administrative Procedures Act, 5 U.S.C. § 500 et seq. ("APA"). Although we disagree with that specific holding of the District Court, the broad deference that Congress granted the Corps in executing the environmental mission of the WRDA places upon us the obligation to provide a correspondingly deferential judicial review. Granting the Corps that deference, we conclude that the Foundation has failed to demonstrate that the Corps has unlawfully delayed or withheld agency action or otherwise been arbitrary, capricious, or in violation of law. We will affirm the District Court's grant of summary judgment.

I.

The Raymond Proffitt Foundation and the Lehigh River Stocking Association are organizations whose members fish, hunt, boat, raft, and otherwise recreate in and along the Lehigh River downstream of the Francis E. Walter Dam ("Walter Dam") in Northeastern Pennsylvania. The Walter Dam is operated by the Philadelphia District of the Corps as part of the Lehigh River Basin Flood Control Project. Completed in 1961, Congress originally authorized construction of the Walter Dam primarily for flood control, but later expanded the mission of the Walter Dam in 1988, requiring it to be "operated in such a manner as will protect and enhance recreation." Water Resources Development Act of 1988, Pub. L. No. 100-676, § 6, 102 Stat. 4012 (1988). Congress subsequently enacted the Water Resources Development Act of 1990. Section 306 of this Act required the inclusion of "environmental protection as one of the primary missions of the Corps of Engineers in... operating, and maintaining water resources projects." WRDA of 1990 § 306, 33 U.S.C. § 2316 (1994).

In 1994, the Corps issued a "Revised Manual" presenting a plan of regulation for the Walter Dam. In this manual, the Corps noted that "[t]his dam, along with Beltzville Lake Dam and Reservoir (Corps of Engineers project) are the only major reservoirs in the Lehigh River watershed intended to serve flood control purposes." The Corps stated that the "primary objective of the F.E. Walter Reservoir Project is flood control. Other objectives are lake and downstream recreation (whitewater) and drought emergency water supply/water quality storage."

In establishing the water control plan for the Walter Dam, the Corps stated that:

Releases made to meet minimum release criteria will be sufficient to maintain and enhance downstream fisheries. Criteria has [ sic ] been developed to avoid abrupt gate raising and closing changes during above normal releases for flood control regulations. Efforts will be made to make releases so as to minimize adverse shock effects on downstream fisheries.

Nonetheless, the Corps believed "[w]ater control management needs must take precedence over fishery accommodation but the attempt should be made to adjust procedures for fishery purposes whenever possible." Assessing the overall effect of the water control plan, the Corps concluded the "Francis E. Walter Reservoir provides good habitat for fisheries. The reservoir, and the Lehigh River (below the dam), are listed as High Quality-Cold Water Fisheries in Pennsylvania (Chapter 93 Water Quality Standards)."

In August of 1999, the Foundation filed a twelve count complaint against the Corps and its Philadelphia District's Commander in the District Court. Jurisdiction was appropriate pursuant to 28 U.S.C. § 1331. Count one of the complaint, brought pursuant to the Administrative Procedures Act, 5 U.S.C. § 706, asserted that the Corps was unlawfully withholding or delaying agency action required by § 306 of the WRDA and otherwise not acting in accordance with the WRDA. The Foundation alleged that these violations stemmed from two actions or inactions on the part of the Corps. First, the Foundation asserted the Corps failed to include "environmental protection" as one of the "missions" for the Walter Dam in the drafting of the 1994 Manual. Supp. App. 8 (Pls.' Compl. ¶¶ 50-52). Second, the Foundation claimed:

[t]he Corps is not fulfilling, or even attempting to fulfill its mission of environmental protection because it a) releases large amounts of water during high flow periods, usually in winter and spring; and b) fails to store water during these high flow periods and release that water during low flow periods, usually summer.

Id. (Pls.' Compl. ¶ 53).

Presently, the Corps' basic operational rule for the Walter Dam is that during normal conditions the Corps will match the dam's outflow to its inflow. Thus, the Corps generally keeps the amount of water in the Walter Dam's reservoir at a constant elevation of 1300 feet, thereby attempting to replicate in the lower Lehigh River below the dam the flow that would be naturally present if the Walter Dam had not been constructed above. During the wetter winter and spring months, more water enters the reservoir from rainfall and melting snow. The Corps therefore releases more water from the dam, resulting in a higher water flow and river level below. During drier summer months, as less water falls and drains into the reservoir, the Corps releases less water from the reservoir. This results in a correspondingly lower flow and river level below.*fn2

The Foundation believes that, so as to "provide a better environment for aquatic species, provide recreation for fisherman [ sic ], canoeists, and provide whitewater rafting throughout the summer," the Corps is "required" by the WRDA to improve upon the naturally occurring environment by augmenting the lower Lehigh River's flows in the summer. The Foundation therefore sought declaratory and injunctive relief mandating the Corps to change its policy and operations at the Walter Dam to reflect the judgments of the Foundation regarding the proper operation of the dam. The Corps responded to this first claim by asserting ...


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