MEMORANDUM & ORDER
Before me is defendants' motion to dismiss Counts 1-8, 11 and
12. On July 11, 2000, I held oral argument on defendants' motion.
The motion will be granted in part and denied in part.
Plaintiffs, the Raymond Proffitt Foundation and the Lehigh
Stocking Association, a non-profit conservation group and a
non-profit fishing association, respectively, bring this action
against defendants, the U.S. Army Corps of Engineers and Lt.
Col., Debra M. Lewis, District Commander for the Philadelphia
District of the Corps ("Corps" or "Defendants") challenging the
Corps' operation of two dams, the F.E. Walter Dam and Reservoir
("Walter Dam") and the Beltzville Dam. Plaintiffs allege
violations of the Water Resources Development Act of 1986
("WRDA"), as amended, 33 U.S.C. § 2201 et seq.; the National
Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq.;
the Fish and Wildlife Coordination Act ("FWCA"), 16 U.S.C. § 661
et seq.; the Federal Water Pollution Control Act, ("Clean Water
Act" or "CWA") as amended 33 U.S.C. § 1251 et seq.;*fn1 and
the Pennsylvania Constitution, Art. 1, § 27. Plaintiffs assert
jurisdiction under 28 U.S.C. § 1331 and the Administrative
Procedure Act ("APA"), 5 U.S.C. § 501 et seq. Plaintiffs
request declaratory and injunctive relief. Defendants have filed
a motion to dismiss plaintiffs' claims arising under WRDA, NEPA,
FWCA, and the Pennsylvania Constitution pursuant to Fed. R.Civ.P.
Plaintiffs seek a declaratory judgment that the Corps is: a)
causing environmental harm to the Lehigh River and its wildlife;
b) failing to fulfill its missions of environmental protection
and recreation; c) in violation of major environmental laws; and
d) violating its public duties by only fulfilling its
environmental protection and recreation missions if paid to do
so. Plaintiffs seek to enjoin defendants "from releasing water in
a manner that violates defendants' mission of environmental
protection" unless such release conflicts with the dam's flood
control purpose and to mandate that the Corps develop a water
release plan with the input of the U.S. Fish & Wildlife Service,
the Pennsylvania Fish and Boat Commission and a coalition of
private groups. Plaintiffs also seek to enjoin defendants from
entering into any agreement with the Delaware River Basin
Commission ("DRBC") unless the agreement provides for sufficient
daily releases of water during the summer months.*fn2
Except where noted, the following facts
are taken from the complaint.*fn3 I take the facts from
plaintiffs' complaint as true and draw all inferences in the
light most favorable to plaintiffs.
The Philadelphia District of the U.S. Army Corps is responsible
for the operation of the Walter Dam and the Beltzville Dam,*fn4
the two dams at issue in this case. See WD Manual, Defs.
Attachment D at 1-1. Both dams are part of the Lehigh River Basin
Flood Control Project. See id. at 3-1.
The Walter Dam is located on the Lehigh River in Carbon, Monroe
and Luzerne Counties in Northeastern Pennsylvania. The dam was
completed in 1961. Construction of the Walter Dam was originally
authorized for the primary purpose of flood control by Section 10
of the Flood Control Act of 1946. See Flood Control Act of
1946, ch. 596, § 10, 60 Stat. 641, 643. Years later, in the Water
Resources Development Act of 1988, Congress designated the Walter
Dam as a water resources project to be "operated in such a manner
as will protect and enhance recreation." Pub. L. 100-676, 102
Stat. 4012. Two years after that, Congress passed the Water
Resources Development Act of 1990, in which Congress included
"environmental protection as one of the primary missions of the
Corps . . . in . . . operating and maintaining water resources
projects." 33 U.S.C. § 2316.
First, plaintiffs contend that the way that the Corps is
releasing water from the Walter Dam into the Lehigh River does
not protect the environment. According to plaintiffs, the Corps
is releasing too little water during the summer, a period of low
precipitation, and too much water during the spring and winter,
periods of high precipitation. This is caused by the Corps'
decision to set its "minimum release level," (the minimum amount
of water released from the dam) at a flow rate that is too low.
Plaintiffs assert that "this level is at drought conditions."
Id. This low water flow in the Lehigh River has a negative
impact on aquatic life as fish cannot survive during low flow
periods. Plaintiffs claim that studies show increasing minimum
release flows during the summer would protect downstream fish and
wildlife. Increasing minimum release levels would also improve
the water quality of the Lehigh River by diluting acid mine
drainage and downstream sewage water. According to plaintiffs,
the minimum release level set by the Corps also contributes to
high volume water releases from the dam in the winter and spring
months. These large releases adversely affect fish and wildlife
in the area as extremely high flows destroy the eggs of aquatic
animals and kill birds nesting downstream along the banks of the
Lehigh River. Studies have found that rapid flow fluctuation
harms the diversity and density of fish.
According to plaintiffs, the U.S. Fish & Wildlife Service
actually told the Corps that the Corps' current minimum release
policy "cause[s] harm to the Lehigh River." Pls.Resp. at 1. That
agency as well as its state counterpart, the Pennsylvania Fish
and Boat Commission, and environmental groups, including
plaintiffs, have asked the Corps to provide a steady flow of
water year-round to the Lehigh River to remedy some of their
environmental concerns regarding the area surrounding the dam.
They suggest that this be done by storing water in the spring and
winter and releasing the stored water during the summer.
Plaintiffs claim that the Corps told them that the Corps would
only increase the water flow from the dam during the summer if a
non-federal sponsor paid the Corps to store water during the
spring and winter to provide a higher daily water flow in the
Plaintiffs contend that the Corps has agreed, in the past, to
increase release flows from the dam for the Delaware River Basin
Commission, DRBC, by storing water in the dam's reservoir. If the
Corps agreed to store water in the reservoir at the same
elevation at which it has stored water for the DRBC, such storage
would increase daily flows during the summer months. Plaintiffs
point out that during a twenty-four hour period in July 1999, the
water flow was 65 cubic feet per second ("cfs"). Storage at the
level at which the Corps has agreed to store water for the DRBC
would increase the minimum flow to 200 cfs for a three month
period. According to plaintiffs, such a flow would protect "the
environment of the Lehigh River."
Plaintiffs also assert that the way that the Corps is releasing
water from the Walter Dam does not protect or enhance recreation
in the area as low water flow in the Lehigh River adversely
affects recreation on the river. Low flows during the summer
months prevent members of plaintiffs' organizations from fishing,
boating and whitewater rafting on the section of the Lehigh River
downstream from the dam. One of the plaintiffs, the Lehigh
Stocking Association stocks fish in the Lehigh River for
recreational fishing. Low flows during the summer, allegedly kill
many of these fish. These flows also have a negative impact on
boating in the area and have caused the cancellation of several
scheduled releases for whitewater rafting. Plaintiffs assert that
increasing the water flow during the summer by storing water
during the spring and winter would "protect and enhance"
Regarding plaintiffs' NEPA and FWCA claims, in 1975, the Corps
issued an Environmental Assessment ("EA") for the Walter Dam
indicating that the EA was "restricted to the effects of
operation and maintenance as specified in the U.S. Army Corps of
Engineers Operation and Maintenance Manual published in 1972 and
the Reservoir Regulation Manual, revised September 1963." Defs.
Attachment E at 12. At that time, a Finding of No Significant
Impact ("FONSI") was made and therefore, an Environmental Impact
Statement ("EIS") was not prepared. Defs. Attachment E at VI.
When preparing the 1975 EA, the Corps consulted with the U.S.
Fish & Wildlife Service and the Commonwealth's Department of
Environmental Resources. Defs. Attachment E.
Defendants move to dismiss plaintiffs' claims for failure to
state a claim upon which relief can be granted pursuant to Rule
12(b)(6). See Fed.R.Civ.P. 12(b)(6). In considering the motion,
a court must accept as true all allegations in the complaint and
all reasonable inferences that may be drawn therefrom, viewed in
the light most favorable to the plaintiff. See Rocks v. City of
Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989). "The issue is
not whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claims."
In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1420
(3d Cir. 1997) (internal citations
omitted). The claims may only be dismissed based on Rule 12(b)(6)
if plaintiffs cannot demonstrate any set of facts that would
entitle them to relief. See Conley v. Gibson, 355 U.S. 41,
45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Jordan v. Fox,
Rothschild, O'Brien, & Frankel, 20 F.3d 1250, 1261 (3d Cir.
1994). The burden is on the moving party to show that no claim
has been stated. See Johnsrud v. Carter, 620 F.2d 29, 33 (3d
A. Review under the APA
Plaintiffs seek review of the Corps' action/inaction under the
APA § 701- § 706, 5 U.S.C. § 701- § 706. Defendants agree that
review under the APA is appropriate.*fn5 Section 702 of the APA
provides for judicial review of agency actions or inactions: "A
person suffering legal wrong because of agency action, or
adversely affected or aggrieved by agency action within the
meaning of a relevant statute, is entitled to judicial review
thereof." 5 U.S.C. § 702.*fn6 The APA defines "agency action" to
include the failure to act. 5 U.S.C. § 551(13).*fn7 Section 704
provides that a district court may review "[a]gency action made
reviewable by statute and final agency action for which there is
no other adequate remedy in a court. . . ." 5 U.S.C. § 704.
Section 706 sets forth the standard of review applicable in APA
cases. Section 706 provides:
To the extent necessary to decision and when
presented, the reviewing court shall decide all
relevant questions of law, interpret constitutional
and statutory provisions, and determine the meaning
or applicability of the terms of an agency action.
The reviewing court shall
1) compel agency action unlawfully withheld or
unreasonably delayed; and
2) hold unlawful and set aside agency action,
findings, and conclusions found to be
(A) arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with the law. . . .
5 U.S.C. § 706(1), (2).
Under Section 706(1), the court's power is limited to
compelling agency action unlawfully withheld or unreasonably
delayed. Under 706(2), the court's power is limited to setting
aside unlawful agency action and remanding to the agency for
additional investigation and explanation. See generally
5 U.S.C. § 706; NRDC v. Fox, 93 F. Supp.2d 531, 536 (S.D.N Y
Section 706(1) of the APA gives the court power to review
agency inaction and, if unlawful, to compel action. See
5 U.S.C. § 706(1). Section 706(1) directs courts to compel agency
action when agency inaction is contrary to a Congressional
mandate. See Oil, Chemical, & Atomic Workers Union v.
Occupational Safety & Health Administration, 145 F.3d 120, 124
(3d Cir. 1998). The APA also permits court to "compel agency
action when an agency's failure to act is found to be . . .
arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law . . ." 5 U.S.C. § 706(1), (2)(A); see
Hondros v. United States Civil Service Comm'n, 720 F.2d 278, 298
(3d Cir. 1983) (stating that "[s]ection 706(1) authorizes
this court to compel agency action arbitrarily or capriciously
Under Section 706(2)(A), a reviewing court must "hold unlawful
or set aside agency action . . . found to be . . . arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law." 5 U.S.C. § 706(2)(A). "An action will not
be deemed arbitrary, capricious, or an abuse of discretion
`simply because one may happen to think it ill-considered or to
represent the less appealing alternative solution available.'"
Hondros, 720 F.2d at 295 (internal citations omitted). A "court
must consider whether the decision was based on a consideration
of the relevant factors and whether there has been a clear error
in judgment. Although this inquiry into the facts is to be
searching and careful, the ultimate standard of review is a
narrow one. The court is not empowered to substitute its judgment
for that of the agency." Society Hill Towers Owners' Assoc. v.
Rendell, 210 F.3d 168, 178 (3d Cir. 2000) (internal citations
Plaintiffs seek review under the APA § 706(1) and § 706(2) for
defendants' alleged violations of the WRDA.
1. WRDA and its environmental protection mission
In Counts 1-4, plaintiffs claim that the Corps has violated the
WRDA, 33 U.S.C. § 2316. The core of plaintiffs' complaint is
found in Count 1. Plaintiffs maintain that the Corps is not
complying with the WRDA of 1990, § 2316 by ignoring the Corps'
statutorily mandated environmental protection mission and that
this failure to act constitutes agency action "unlawfully
withheld" under APA § 706(1). Alternatively, plaintiffs assert
that the Corps has violated Section 2316, challenging the Corps'
actions in operating the Walter Dam as arbitrary, capricious, an
abuse of discretion, or otherwise contrary to law.
Defendants move to dismiss Count 1, asserting that the
environmental protection mission set forth in the WRDA of 1990, §
2316, does not impose a specific duty on the Corps to store water
during the winter and spring to provide a higher daily flow of
water during the dry summer months. Defendants' sole basis for
dismissal is that this is a general provision that does not
require the Corps to establish a particular water release
program.*fn10 Defendants have not responded to plaintiffs' claim
that the Corps is totally ignoring its environmental protection
mission. At oral argument, I requested that defendants address
this claim, however, defendants failed to do so. Nor have
defendants addressed plaintiffs' argument that the Corps' actions
regarding its operation of the Walter Dam are arbitrary,
capricious, an abuse of discretion, and otherwise not in
accordance with the law.
a. Agency Action Unlawfully Withheld
In essence, plaintiffs claim that the WRDA of 1990,
33 U.S.C. § 2316 imposes a duty on the Corps to consider environmental
protection as a primary mission in administering water resources
projects and that the Corps has "unlawfully withheld" agency
action by ignoring its environmental protection mission in
operating and maintaining the Walter Dam.
The WRDA of 1990, in pertinent part, provides that:
(a) . . . [t]he Secretary shall include environmental
protection as one of the primary missions of the
Corps of Engineers in planning, designing,
constructing, operating, and maintaining water
(b) . . . Nothing in this section affects —
(1) existing Corps of Engineers' authorities,
including its authorities with respect to
navigation and flood control. . . .
33 U.S.C. § 2316.