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August 22, 2000


The opinion of the court was delivered by: Anita B. Brody, District Judge.


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.

I. Introduction

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. 12(b)(6).

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

II. Background

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 summer.

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" recreation.

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.

III. Discussion

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 Cir. 1980).

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 2000).

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. ยง 706(1), (2)(A); see Hondros v. United States Civil Service ...

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