IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION BLACK WARRIOR RIVERKEEPER, INC., ) ) Plaintiff, ) ) v. ) ) UNITED STATES ARMY CORPS OF ) ENGINEERS; JON J. CHYTKA, DISTRICT ) COMMANDER, MOBILE DISTRICT; ) NO. ALABAMA DEPARTMENT OF ) TRANSPORTATION; and JOHN R. ) COOPER, DIRECTOR, ALDOT, ) ) Defendants. ) ) COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Plaintiff Black Warrior Riverkeeper, Inc., by and through its undersigned counsel, files this Complaint for declaratory and injunctive relief, stating as follows: INTRODUCTION 1. This action challenges violations of Section 404 of the Federal Water Pollution Control Act ("Clean Water Act" or "CWA"), as well as the National Environmental Policy Act of 1969 ("NEPA"), in connection with Defendant United States Army Corps of Engineers' ("the Corps') September 30, 2013 decision to issue a permit for the discharge of dredged or fill material into waters of the United States ("Section 404 permit") for the construction of a 1.86- mile segment of the Northern Beltline near Palmerdale, Alabama. When completed, the proposed 52-mile, six-lane Northern Beltline would be a new controlled-access highway between Interstate 459 in Bessemer, Alabama and Interstate 59 in Trussville, Alabama. 2. Section 404 of the Clean Water Act requires the Corps to issue permits only for those projects that represent the least damaging practicable alternative that will satisfy the project's purpose and need. In determining the least damaging practicable alternative, the Corps must evaluate a number of environmental and economic factors pursuant to CWA regulations and must look at the entire project. 3. The Section 404 permit issued for the Northern Beltline is an improper and illegal segmentation that prevents an objective look at the entire project's impacts and alternatives. Based on a piecemeal permit application from the Alabama Department of Transportation ("ALDOT"), the Corps purported to look at this 1.86-mile, six-lane interstate stub as a stand- alone project between two state highways, thereby avoiding an analysis of the entire project's collective impacts to waters of the United States and other resources. In reality, the Corps' analysis switches from evaluating this small and isolated segment (which greatly understates the environmental impacts of this project) to looking at the putative benefits of the 52-mile project as a whole, in order to justify issuing this permit. The Corps also failed to properly analyze alternatives to the 1.86-mile segment, or the 52-mile project, as required by Section 404 and its regulations. 4. The Corps' Section 404 and public interest analysis is deficient, in that the Corps did not take into account all comments that it received, did not account for or apply certain relevant factors, and improperly allowed harm caused by the Northern Beltline to be mitigated outside of the watershed where the project will be located, in order to justify permit issuance. 5. The Corps also prepared an Environmental Assessment ("EA") and Finding of No Significant Impact ("FONSI"), pursuant to NEPA. The EA in this case was based on inaccurate data, did not examine reasonable alternatives, and made findings that mask the overall significance of the Northern Beltline on the environment. 2 6. The 404 permit, EA and FONSI rely on data and other findings contained in other NEPA documents prepared by the Federal Highway Administration ("FHWA") for the 52-mile Northern Beltline. Specifically, the Corps relied on a 1997 Environmental Impact Statement ("EIS") and a March 2012 Re-evaluation of that EIS. The March 2012 Re-evaluation is the subject of a separate pending lawsuit against FHWA and ALDOT concerning violations of NEPA. 7. NEPA requires the preparation of a Supplemental Environmental Impact Statement ("SEIS") when significant changes have occurred in connection with a proposed project or the environment that will be affected by that project. Before issuing the Section 404 permit, the Corps should have prepared an SEIS in this case because of the numerous changes that have occurred to the Northern Beltline's design, cost, and impacts, as well as the changes that have occurred in the environment that will be affected by the Northern Beltline. 8. The Corps' issuance of the Section 404 permit, as well as its inadequate EA and FONSI, are final agency actions that are arbitrary, capricious, and otherwise not in accordance with law in violation of the Administrative Procedure Act, 5 U.S.C. § 706 ("APA"). The Corps' refusal to prepare an SEIS to analyze the impacts of and alternatives to the Northern Beltline is arbitrary and capricious, and further represents an action unlawfully withheld, also in violation of the APA. Plaintiff Black Warrior Riverkeeper, Inc. therefore requests that this court grant declaratory and injunctive relief to ensure compliance with the requirements of the CWA and NEPA. JURISDICTION AND VENUE 9. This action arises under the CWA, 33 U.S.C. § 1344, and NEPA, 42 U.S.C. §§ 4321-4347. This Court has jurisdiction pursuant to 28 U.S.C. § 1331, and may issue declaratory and further relief pursuant to 28 U.S.C. §§ 2201 and 2202. Plaintiff is entitled to bring this 3 action pursuant to the Administrative Procedure Act, 5 U.S.C. §§ 701-06. 10. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(e). PARTIES AND STANDING Plaintiff 11. Plaintiff Black Warrior Riverkeeper, Inc. ("Riverkeeper") is a not-for-profit corporation whose mission is to protect and restore the Black Warrior River and its tributaries. The majority of the proposed route of the Northern Beltline lies within the Black Warrior River watershed, as does the entirety of the segment authorized by the Section 404 permit. 12. Riverkeeper has members who live and own property in the vicinity of the proposed Northern Beltline as well as members who visit, recreate, observe birds and other wildlife, photograph and otherwise use and enjoy the waterways, public lands, and other areas in the vicinity of the proposed Northern Beltline, including the 1.86-mile segment covered by the Section 404 permit. These activities will be negatively impacted by the proposed Northern Beltline. 13. Riverkeeper and its members have an interest in agencies conducting proper studies and analyses in order to minimize harm to the environment and to fully involve the public in agency decision-making as required by law. This interest will be harmed by the proposed Northern Beltline and the flawed Section 404 permit and environmental analyses concerning this project. 14. Riverkeeper and its members have been regular participants in meetings and correspondence with the Corps and ALDOT concerning the Northern Beltline. 15. Riverkeeper seeks to inform and educate its members and the public concerning highway and transportation planning and the impacts of transportation decisions on the Black Warrior River watershed, and advocates for transportation planning and policies that will have 4 the least long-term impact on the watershed. Riverkeeper also works to ensure that agencies comply with all applicable environmental laws. These organizational interests are directly and irreparably injured by Defendants' violations of law described herein. Defendants 16. The Corps is part of the federal Department of the Army. The Corps is charged with administering the Section 404 permitting program under the CWA. The Corps issued the Section 404 permit and the EA and FONSI that accompanied the Section 404 permit. 17. Colonel Jon J. Chytka is the District Commander of the Corps' Mobile District, whose jurisdiction includes the area in which the proposed Northern Beltline will be located. Colonel Chytka signed the Section 404 permit on September 30, 2013 and allowed the project to proceed without preparing an SEIS. Colonel Chytka is sued in his official capacity. 18. ALDOT is an agency of the State of Alabama. ALDOT is responsible for complying with both Section 404 and NEPA before proceeding with its projects. ALDOT improperly applied for a Section 404 permit for a small segment of the Northern Beltline and has based its decision to build the Beltline on inadequate environmental studies. ALDOT also signed the Section 404 permit at issue in this case on September 27, 2013. 19. John R. Cooper is the Director of ALDOT. Mr. Cooper had the final authority over the State's application for the Section 404 permit and is responsible for ensuring that ALDOT complies with all applicable environmental laws before proceeding with transportation projects in Alabama. Mr. Cooper is sued in his official capacity. LEGAL BACKGROUND A. Section 404 20. Section 404 of the CWA prohibits the discharge of dredged or fill material into waters of the United States without a permit. 33 U.S.C. § 1344. The Corps is the agency 5 charged with implementing the Section 404 program, subject to oversight from the U.S. Environmental Protection Agency ("EPA"). 21. EPA has promulgated Section 404 regulations that govern Corps permitting decisions, known as the 404(b)(1) guidelines. 33 U.S.C. §1344(b); 40 C.F.R. Part 230. These guidelines prohibit issuance of permits if there is a practicable alternative which would have less impact on the aquatic ecosystem. 40 C.F.R. § 230.10(a). 22. Determining which alternatives are "practicable" includes examining other locations for discharging dredged or fill material, examining alternatives that do not involve discharging dredged or fill material into waters of the United States, and taking into account costs, technology, and logistics in light of overall project purposes. 40 C.F.R. § 210(a)(1)-(2). 23. The Corps' regulations for processing applications for Section 404 permits state that all activities which a permit applicant plans to undertake that are "reasonably related" to a given project should be included in the same permit application. 33 C.F.R. § 325.1(d)(2). The regulations are clear that the scope of the analysis must address the entire federal action.