On June 15, 2011 the Coalition to Preserve McIntire Park filed a complaint for declaratory and injunctive relief in an effort to preserve McIntire Park. This suit, filed against both the U.S. Army Corps of Engineers and the Virginia Department of Transportation was necessary to enable the coalition to ask the federal court to stop any construction activity in McIntire Park. Due to the segmentation of Meadowcreek Parkway into three segments claimed to have independent utility it is not possible to ask the federal judge overseeing the Route 250 Bypass Interchange at McIntire Road (the southern terminus of the Meadowcreek Parkway) lawsuit to halt construction on McIntire Road Extended (the middle section of the Meadowcreek Parkway).
The coalition will ask the judge assigned to this case to grant an injunction to prevent any activity in McIntire Park until the environmental issues outlined in the lawsuit are resolved. An unofficial transcript of the filing is given below. The case number is 3:11-cv-00041. You can see this and all other documents associated with this case at the Clerk's Office at the Federal District Courthouse in Charlottesville.
The coalition will ask the judge assigned to this case to grant an injunction to prevent any activity in McIntire Park until the environmental issues outlined in the lawsuit are resolved. An unofficial transcript of the filing is given below. The case number is 3:11-cv-00041. You can see this and all other documents associated with this case at the Clerk's Office at the Federal District Courthouse in Charlottesville.
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
COALITION TO PRESERVE MCINTIRE PARK
324 Parkway St.,
Charlottesville, VA 22902,
DANIEL BLUESTONE
501 Park Hill
Charlottesville, VA 22902,
Plaintiffs,
v.
UNITED STATES ARMY
CORPS OF ENGINEERS,
441 G Street, NW
Washington, DC 20314-1000,
VIRGINIA DEPARTMENT OF TRANSPORTATION
1401 E. Broad St.
Richmond VA 23219,
Defendants.
_________________________________________
1. This action seeks declaratory and injunctive relief for violations of federal law by the United States Army Corps of Engineers (the “Corps”) in authorizing Defendant Virginia Department of Transportation (“VDOT”) to construct a highway project known as the “McIntire Road Extended,” (the “Road”) through McIntire Park , located in Charlottesville, Virginia. As described more fully below, the construction and subsequent use of the MRE would literally destroy much of the east side of McIntire Park (“the Park”). As for those parts of the Park that would not be destroyed by construction of the Road itself, many would be devastated by the vehicular traffic that it would support. The Road would also have a significant adverse effect on
the quality of life in local neighborhoods and on historic resources located nearby, as it is proposed to be constructed on land eligible for listing on the National Register of Historic Places.
2. The Project is part of a larger government endeavor, some 52 years in the making, to construct a highway starting at Rio Road on the north and extending southward to and through the length of McIntire Park, to and beyond the Rt. 250 Interchange. Litigation over the Federal Highway Administration’s approval and funding of a highway project, known as the Rt. 250 Bypass Interchange at McIntire Road, is now pending before this Court. (CPMP v. FHWA, Civ. No. 3:11-cv-00015)
3. Plaintiffs contend that the Corps violated the Clean Water Act, 33 U.S.C. § 1344 (“CWA”), by authorizing VDOT to proceed with the project pursuant to a “State Program General Permit” rather than requiring VDOT to obtain an “individual permit.” In addition, the Corps conducted no environmental impact statement (“EIS”) or environmental assessment (“EA”) in connection with its action, thereby violating the National Environmental Policy Act, 42 U.S.C. § 4332 (2)(C) (“NEPA”).
4. Jurisdiction is proper in this Court under 28 U.S.C. § 1331 because Plaintiffs’ claims arise under the laws of the United States, including the CWA, NEPA and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551, et seq.. This Court may issue a preliminary injunction
and other relief pursuant to 28 U.S.C. § 2201 (declaratory relief) and § 2202 (injunctive relief). All available administrative remedies have been exhausted. The challenged agency action is final and subject to this Court’s review. This Court has jurisdiction over Defendant VDOT by virtue of the doctrine of pendent jurisdiction.5. Venue is proper in this District pursuant to 28 U.S.C. § 1391(e).
6. The Coalition to Preserve McIntire Park (“CPMP”) is a non-profit, unincorporated conservation organization dedicated to the protection and enhancement of the Park and the neighboring communities. CPMP has 36 members; it brings this action on behalf of its members. CPMP’s members use and appreciate the lands in the Park for their scenic beauty and for hiking, watching birds, and viewing wildflowers and other flora and fauna, as well as outdoor recreational and educational activities. The construction of the Road will directly and significantly affect the interests of Plaintiffs and the members of CPMP, because it will degrade all of these values and uses.
7. CPMP’s Steering Committee has authorized the filing of this action.
8. John Cruickshank is a member of CPMP – as well as a member of its Steering Committee. He resides at 324 Parkway St., Charlottesville, VA 22902. His residence is located approximately one-half mile from the Park. He and his wife chose to live there in large part because of the neighborhood’s proximity to the Park.
9. Additionally, Mr. Cruickshank is a regular user of the Park, for hiking, bird watching and other recreational purposes. He plans to continue these activities in the Park for the indefinite future. If the Road were to be built, it would adversely affect the quality of his life, as it would reduce the aesthetic beauty of the area in which he lives, and impair his enjoyment of the Park.
10. Richard Collins is a member of CPMP – as well as a member of its Steering Committee. He resides at 108 Wilson Court, Charlottesville, VA 22901. His residence is located approximately one-half mile from the Park. He and his wife chose to live there in large part because of the neighborhood’s proximity to the Park. Additionally, Mr. Collins is a regular user of the Park, for hiking, golfing and other recreational purposes. He plans to continue these activities in the Park for the indefinite future. If the Road were to be built, it would adversely affect the quality of his life, as it would reduce the aesthetic beauty of the area in which he lives, and impair his enjoyment of the Park.
11. Plaintiff Daniel Bluestone is a member of CPMP – as well as a member of its Steering Committee. He resides at 501 Park Hill, Charlottesville, VA 22902. His residence is located on the perimeter of the Park. He chose to live there in large part because of the neighborhood’s pastoral character.
12. Mr. Bluestone is a regular user of the Park, for hiking, birdwatching and other recreational purposes. He plans to continue these activities in the Park for the indefinite future. If the Road were to be built, it would adversely affect the quality of his life, as it would reduce the aesthetic beauty of the area in which he lives, and impair his enjoyment of the Park.
13. Defendant U.S. Army Corps of Engineers is an agency within the United States Department of Defense. It has the duty to administer the permitting provisions of the Clean Water Act, in compliance with the laws established by Congress for such administration and with the Corps’ regulations.
14. Defendant Virginia Department of Transportation is an agency created under the laws of the Commonwealth of Virginia. VDOT is the lead agency constructing the Road.
15. “NEPA . . . makes environmental protection a part of the mandate of every federal agency and department,” Calvert Cliffs Coord. Comm. v. United States, 449 F.2d 1109, 1112 (D.C. Cir. 1971), and is the “basic national charter for protection of the environment,” 40 C.F.R. § 1500.1(a). Its purpose is “to help public officials make decisions that are based on understanding of environmental consequences, and take actions that protect, restore, and enhance the environment.” Id. § 1500.1(c).
16. To accomplish this purpose, NEPA requires that all federal agencies prepare a “detailed statement” regarding all “major federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(C). The “detailed statement” is known as an “environmental impact statement” (“EIS”). To determine whether a proposed action significantly affects the quality of the human environment, and whether an EIS is therefore required, regulations promulgated by the Council on Environmental Quality provide for the preparation of an EA. Based on this analysis, a federal agency either decides to prepare an EIS or issue a finding of no significant impact (“FONSI”). 40 C.F.R. § 1501.4.
17. Congress enacted the CWA to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). The CWA makes it illegal for anyone to discharge pollutants into the Nation’s waters without a permit. 33 U.S.C. § 1311. The Corps may authorize discharges and/or disposal of materials into streams and creek through the issuance of individual permits or general permits. 33 U.S.C. § 1344.
18. The Corps issues individual permits for discharging materials into streams and creeks on a case-by-case basis. CWA § 404, 33 U.S.C. § 1344. Such permits are issued following an extensive review process that includes public notice and an opportunity, as well as the completion of a thorough “public interest review” process. See 33 C.F.R. § § 320.1, 322.2(e).
19. The Corps issues general permits on the basis of abbreviated procedures; the “public interest review” is not conducted for projects that are authorized pursuant to general permits. See 33 C.F.R. § 325.5(c).
20. One type of general permit issued by the Corps is known as the “State Program General Permit.” State Program General Permit No. 07-SPGP-01 (the “SPGP”) establishes procedures and substantive standards governing authorizations of activities causing discharges of materials into waters of the United States located within Virginia. See http://www.nao.usace.army.mil/technical%20services/Regulatory%20branch/spgp_2007/07-SPGP-01.pdf. (last viewed June 12, 2011).
21. Of particular relevance to this matter is § III B of the SPGP; it applies to “linear transportation projects” conducted by Defendant VDOT. Pursuant to this section of the SPGP, VDOT may obtain Corps’ permission under the CWA to construct roads, provided that the criteria and conditions of the SPGP are satisfied.
22. The Corps may not authorize a VDOT transportation project under the SPGP if the
project will have more than “minimal individual or cumulative adverse environmental
impacts...” SPGP § V. 2.
23. The Corps may not authorize a VDOT transportation project under the SPGP unless
the project is a “single and complete project.” “A project is considered to have independent utility if it would be constructed absent the construction of other projects in the project area.” Id.
24. As approved by the Corps, the Road is a proposed two-lane thoroughfare of approximately 2,100 feet in length; it would extend south from Melbourne Road to a point inside McIntire Park. The Road is depicted in the Memorandum of Agreement prepared for the project under the National Historic Preservation Act:
25. The Road is preceded by a long history of governmental attempts to construct a road through McIntire Park.
26. This history begins in or before 1959, when government transportation planners first proposed to construct a north-south highway of approximately three miles in length through and beyond McIntire Park in order to relieve traffic congestion along residential streets and facilitate ingress/egress to and from downtown Charlottesville. This so-called “McIntire Road Extension project” or “Meadow Creek Parkway” was formally incorporated into the Charlottesville Major Arterial Street and Highway Plan in 1967.
27. In 1979 the Virginia Commonwealth Transportation Board approved the construction of a new, limited-access highway through McIntire Park, between the Rt. 250 Bypass on the south and Rio Road on the north. This project, too, ran north-south through and beyond the Park for a distance of approximately three miles.
28. On August 28, 1985, the Charlottesville/Albemarle County Metropolitan Planning Organization incorporated a similar, 2.1-mile variant of the “McIntire Road Extension project” or “Meadow Creek Parkway” into its Charlottesville Area Transportation Study (CATS) Year 2000 Transportation Plan, denominating it a “committed project.”
29. In or about 2001, the overall highway project was subdivided into three segments. Albemarle County and the Virginia Department of Transportation proposed to construct a 1.4-mile northern segment, then renamed the “Meadow Creek Parkway,” south from Rio road to Melbourne Road.
30. This segment received all necessary government approvals in 2008.
31. Construction of this segment began in 2009 and continues to this day. It is being
built to a specific point on the northeast perimeter of McIntire Park.
32. The middle segment, referred to herein as “the Road,” was renamed “McIntire Road Extended.” This segment is proposed to be funded and constructed by VDOT; it is proposed to be built through the heart of the eastern half of McIntire Park, thus connecting the southern terminus of the Meadow Creek Parkway at Melbourne Road with the Rt. 250 Bypass at McIntire Road.
33. However, as currently configured, the Road does not extend south to the Rt. 250
Bypass. Rather, as shown in the graphic in ¶ [24] above, it terminates at a point 775 feet north of the Route 250 Bypass.
34. On May 25, 2011, the Corps issued a two-page authorization (described therein as a “permit”) to VDOT to begin construction of the Road. See Attachment A.
35. This authorization from the Corps is conditional. It states:
“This permit is being authorized with the understanding that the MRE’s southern end will connect to the Route 250 Bypass Interchange .... However, if for any reason the
Interchange project is not constructed, this permit will not be valid, and you must contact our office regarding authorization for the MRE project”
36. The Route 250 Bypass Interchange project has not been constructed.
COUNT I
Violations of the Clean Water Act and the Administrative Procedure Act
37. The contents of the foregoing paragraphs are incorporated by reference.
38. The Corps’ May 25, 2011 authorization to VDOT violates the CWA, the Corps’
regulations thereunder, and the SPGP because its issuance violated SPGP § V. 2, which bars the Corps from authorizing projects that will have more than “minimal individual or cumulative adverse environmental impacts...”. The adverse environmental impacts of the MRE will be substantial by any measure, particularly when viewed in conjunction with those of the Meadow Creek Parkway and the Route 250 Bypass Interchange, as they must be under federal law.
39. Similarly, the terms of the SPGP proscribe the issuance of work authorizations for projects that are not “single and complete.” The MRE is not single and complete. On the contrary, it is intertwined with and functionally dependent on the construction and completion of the Meadow Creek Parkway and the Route 250 Bypass Interchange projects.
Violations of the National Environmental Policy Act and the Administrative Procedure Act
40. The contents of the foregoing paragraphs are incorporated by reference.
41. NEPA requires that all federal agencies prepare an EIS for all “major federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(C).
42. The environmental impacts of the Road, particularly when assessed cumulatively with the impacts of the two other associated highway projects, exceed the statutory threshold of “significance,” thus triggering the duty to prepare an EIS.
43. The Corps’ failure to prepare an EIS for the Road thus violates NEPA.
44. Alternatively, the Corps was required by NEPA to prepare an EA assessing the likely environmental impacts of the Road. The Road is not the kind of environmentally insignificant project that enjoys an exemption from the statute’s environmental review requirement.
WHEREFORE, Plaintiffs respectfully request this Court to provide the following relief:
a. A declaration that the Corps has violated the requirements of the CWA, its CWA implementing regulations, and the terms of the SPGP by authorizing VDOT to proceed with construction of the Road;
b. A declaration that the Corps has violated the requirements of NEPA by authorizing
VDOT to construct the Road without preparing an EIS or performing any other kind of projectspecific environmental review;
c. An order vacating the Corps’ authorization of May 25, 2011;
d. Injunctive relief barring VDOT from beginning construction of the Road unless and
until the violations of law described above are remedied;
e. An order that Plaintiffs may recover their reasonable litigation expenses (including attorney fees) pursuant to the the Equal Access to Justice Act, the Clean Water Act and/or other applicable provisions of law; and
f. Such other relief as the Court deems just and proper.
Respectfully submitted this 15th day of June, 2011.
James B. Dougherty, Esq.
709 3rd St. S.W.
Washington, D.C. 20024
Tel: 202-488-1140
Email: JimDougherty@aol.com
___________________________
James D. Brown, Esq.
Law Office of James D. Brown
P.O. Box 2921
Charlottesville VA 22902
Va. Bar. No. 81225
Tel.: 434-218-0891
Email: lawofficejdb@gmail.com
No comments:
Post a Comment