Filed on 11 August 99
IN THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF PENNSYLVANIA
RAYMOND PROFFITT FOUNDATION,
P.O. Box 723, Langhorne, PA 19047, and
LEHIGH RIVER STOCKING ASSN.,
P.O. Box 54, Walnutport, PA 18088.
PLAINTIFFS,
V.
U.S. ARMY CORPS OF ENGINEERS and
LT. COL. DEBRA M. LEWIS, DISTRICT
COMMANDER, Wanamaker Building, 100
Penn Square East, Philadelphia, PA 19107-3390.
DEFENDANTS.
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: CIVIL ACTION
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: NO.
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COMPLAINT IN EQUITY
Plaintiffs, the Raymond Proffitt Foundation (RPF)
and the Lehigh River Stocking Assn. (LRSA), through
their legal counsel, allege as follows:
I. PRELIMINARY STATEMENT
1. Plaintiffs are asking this Court to hold that
the U. S. Army Corps of Engineers and its District
Commander (Corps) are violating federal and state
environmental laws regarding releases of water to the
Lehigh River from the F. E. Walter Dam, located in
Carbon and Luzerne Counties, Pennsylvania. The Corps
refuses to hold water in its dam by perpetually keeping
the elevation so that the reservoir contains
approximately 1/60th of its capacity. Releases of large
volumes of water in the spring kill numerous amounts of
nesting birds and fish. In addition, the Corps is
presently reducing the flow to the Lehigh River, during
drought conditions, thereby causing harm to aquatic
species and other wildlife.
2. Environmental groups, federal and state fish
and wildlife agencies and legislators, all have asked
the Corps to store water during the wetter winter and
spring months, and then release the water slowly over
the drier summer months. This slow release, during low
flow periods, will provide cooler higher quality water,
provide a better environment for aquatic species,
provide recreation for fisherman, canoeists, and provide
whitewater rafting throughout the summer. Such releases
would also aid during periods of drought. Storing and
slowly releasing this water can be done without
significant expense, and without jeopardizing flood
control.
3. The Corps has said that it would consider such
releases, but only for money. The money that the Corps
requests is unreasonable and not related to the actual
costs of operations.
4. This Complaint seeks to show that the Corps'
action and inaction violates several environmental laws;
causes harm to the environment; that the Corps is
already required to do what it seeks to be paid to do;
and requests this Court to require the Corps to cease
its current activities and consult with other federal
and state environmental agencies and environmental
groups to develop a comprehensive plan for releasing
water to protect the environment.
II. JURISDICTION AND VENUE
5. Federal jurisdiction is proper pursuant to 28
U.S.C. 1331.
6. Federal jurisdiction is proper pursuant to the
Administrative Procedure Act, 5 U.S.C. 701. et seq.
7. This Court has the power to compel agency
action unlawfully withheld or unreasonably delayed
pursuant to the APA, 5 U.S.C. 706 (1).
8. This Court has the power to hold unlawful and
set aside agency action, findings, and conclusions found
to be arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law pursuant to the
APA, 5 U.S.C. 706 (2) (A).
9. This Court has the power to issue a declaratory
ruling concerning the rights of the parties pursuant to
28 U.S.C. 2201 and F.R.C.P. 57.
10. This Court has the power to grant injunctive
relief pursuant to F.R.C.P. 65.
11. Part of the transaction has occurred in Carbon
and Luzerne Counties because that is the location of the
F.E. Walter Dam, which is the subject of the litigation.
Venue is proper in the Eastern District of Pennsylvania,
however, pursuant to 28 U.S.C 1391 (e) which allows for
filing against government agencies and officers in any
judicial district in which the following occur:
(1) Defendants are located in Philadelphia County;
(2) A substantial part of the events giving rise
to the claim occur in Lehigh and Philadelphia Counties
in that operations of the dam are causing lack of water
in Lehigh County, members of Plaintiffs' groups use the
Lehigh River in Lehigh County and are therefore injured
in Lehigh County, and the Defendants made decisions in
Philadelphia regarding dam operations; and,
(3) Plaintiffs reside in Bucks County and Lehigh
County.
III. PARTIES
12. Plaintiff is the Raymond Proffitt Foundation
("RPF") with an address of P.O. Box
723, Langhorne, PA 19047-723.
13. Plaintiff is the Lehigh River Stocking Assn.
(LRSA) with an address of P.O. Box 54, Walnutport, PA
18088.
14. RPF and LRSA shall be collectively known as
Plaintiffs."
15. Members of Plaintiffs' organizations are
affected by the Corps' failure to provide for
environmental protection and recreation in the Lehigh
River, in that members fish, hunt, boat, raft and
generally recreate in and along the Lehigh River
downstream of the F.E. Walter Dam but are prevented from
doing so during summer months because the Corps has
failed to store and release enough water.
16. In addition, the Corps releases too much water
during the spring and such water kills the eggs of
aquatic animals and such releases kill nesting birds
downstream of the releases; such action also harms the
members' interests in fishing, hunting and recreating as
well as their aesthetic interests by reducing the amount
of fish and wildlife in and around the Lehigh River.
17. One member of the above Plaintiff's
organizations owns a business in which he is a
whitewater rafting guide on a section of the Lehigh
River that is dependent on sufficient water flowing and
his economic interests are harmed from lack of sales
when water levels are not sufficient for rafting.
18. The LRSA stocks fish in sections of the Lehigh
River and these sections are adversely affected by dam
operations in that fish eggs are destroyed by large
releases and fish cannot survive during low flows in the
summer.
19. Defendant is the U.S. Army Corps of Engineers,
Philadelphia District, with an address of the Wanamaker
Building, 100 Penn Square East, Philadelphia, PA 19107-
3390.
20. Defendant is Lt. Col. Debra Lewis, District
Commander, Philadelphia District, with an address of the
U.S. Army Corps of Engineers, Wanamaker Building, 100
Penn Square East, Philadelphia, PA 19107-3390.
IV. BACKGROUND
21. Sometime in 1961, the Corps completed
construction and filling of the F.E. Walter Dam (Walter
Dam).
22. The Walter Dam is located in the Lehigh Basin,
in Carbon and Luzerne Counties, Pennsylvania, but the
section of the Lehigh River flowing from the dam goes
through several other counties.
23. The Walter dam interrupts and controls the
flow of the Lehigh River.
24. In 1982, Pennsylvania designated the Lehigh
River as Wild/Scenic from the dam downstream to the town
of Jim Thorpe.
25. When the Walter Dam was built, the primary
purpose was flood control in the Lehigh River.
26. In 1988, the mission of the Corps was changed
to include recreation at the Walter Dam, including
whitewater rafting and fishing downstream, and boating
in the dam. The Water Resources Act of 1988, P.L. 100-
676, 102 Stat. 4022, 6 (a).
27. In 1990, the mission of the Corps was changed
to include environmental protection at all of its
projects. Water Resources Development Act of 1990, 33
U.S.C. 2316.
28. The capacity of the dam is approximately 36
billion gallons held in a reservoir.
29. The Corps attempts to keep the reservoir at an
elevation level of 1300 feet (normal level) that will
hold .58 billion gallons, which is approximately 1/60th
of its capacity.
30. During flood events water will be stored so as
to release it after the storm event, returning to the
normal elevation level of 1300 feet.
31. There is a road running through the bottom of
the reservoir, just above the normal elevation level,
and this road connects with roads on either side of the
dam.
32. The above road floods whenever the water level
rises above the normal level, and this flooding occurs
many time throughout the year, making the road
impassable.
33. When the road is flooded boating is impossible
because there is no access ramp, and therefore fishing
from boats is impossible.
34. Several times per year the Corps will schedule
releases from the reservoir for whitewater rafting;
these releases occur in June and in the fall.
35. In 1999, there were five scheduled events,
with two events in June lasting two days each, one day
in September, and two days in October.
36. Some dates are canceled because of lack of
water.
V. LEGAL ARGUMENT
COUNT 1
THE CORPS IS VIOLATING THE WATER RESOURCES
DEVELOPMENT ACT OF 1990 WHICH REQUIRES THE CORPS TO
CONSIDER ENVIRONMENTAL PROTECTION AS ONE OF ITS MISSIONS
37. Plaintiffs incorporate by reference herein the
allegations found in paragraphs 1 through 36, above.
38. The Water Resources Development Act of 1990,
33 U.S.C. 2316, requires that "[T]he Secretary shall
include environmental protection as one of the primary
missions of the Corps of Engineers in . . . operating,
and maintaining water resources projects."
39. Environmental protection must be defined by
the federal Clean Water Act, since that is the main
federal environmental statute dealing with protection of
our nations water resources.
40. The overriding objective of the federal Clean
Water Act (CWA) is to restore and maintain the chemical,
physical, and biological integrity of the Nation's
waters. CWA, 33 U.S.C.
1251.
41. The national goal is to achieve "an interim
goal of water quality which provides for the protection
and propagation of fish, shellfish, and wildlife and
provides for recreation in and on the water." Id.
42. Diminution in water quantity may constitute
diminution in water quality, or pollution.
43. Pollution is defined as "the man-made or man-
induced alteration of the chemical, physical,
biological, and radiological integrity of water." CWA,
33 U.S.C. 1362 (19).
44. Thus, any alteration of the chemical, physical
or biological integrity which adversely affects the
propagation of fish or wildlife, or interferes with
recreation in and on the water may be deemed to violate
environmental protection.
45. In addition to environmental protection, the
Corps has two other statutory missions at Walter Dam:
flood control and recreation.
46. According to the Corps "Water Control Manual
(Revised), October 1994, p.2-1 (Manual), the
"[A]uthorized purpose of this project is flood control.
Secondary purposes are recreation, water quality control
and drought emergency water supply and water quality
storage."
47. It should be noted that no laws provide for "
water quality control" or for "drought emergency water
supply" or for "water quality storage" as any of the
Corps' purposes at this dam.
48. Later on in the Corps Manual, under the heading
"Fish and Wildlife", the Corps specifically says that:
"[F]ish and wildlife conservation is not a designated
project purpose. No storage or releases are
specifically provided for this purpose at the project."
Manual, p. 7-16.
49. In that same Manual, under the heading "Water
Quality Control", the Corps specifically says: "[T]here
is no water quality storage allocated at F.E. Walter
Reservoir." Manual, p. 7-16.
50. There is no statement in the Corps Manual
acknowledging that one of its missions is environmental
protection.
51. In a Freedom of Information search through all
documents on the Walter Dam, not one statement could be
found in which the Corps acknowledges that environmental
protection is one of its missions.
52. In an undated Corps document, but referencing
1997 data, the Corps says that the "reservoir is
authorized for flood control, water supply, and
recreation." There is no mention of environmental
protection.
53. The 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.
54. The Corps allows water to flow out of the
Walter Dam almost as soon as water enters, always aiming
to keep the water levels at elevation 1300 which will
contain .58 billion gallons, or 1/60th of its capacity.
55. The Walter Dam can hold 36 billion gallons.
56. In the past, the Corps has agreed to store
11.5 billion gallons for the Delaware River Basin
Commission (DRBC), when it was paid to do so for drought
emergency purposes.
57. The storage for DRBC would be at a level known
as the Top of the Emergency Drought Storage Pool
(Drought Pool), and is at elevation 1392 feet.
58. In the past, the Corps considered an
arrangement to use Walter Dam for hydroelectric power
whereby the Corps would store water up to elevation
1434.7 which would contain 27 billion gallons or 3/4ths
of its capacity.
59. The Corps would receive money for allowing the
use of the water for hydroelectric power.
60. Thus, it must be presumed that the Walter Dam
could currently hold 11.5 billion gallons or even 27
billion gallons without jeopardizing the integrity of
the dam or adversely affecting its primary mission of
flood control, in that water could always be released
whenever there was a threat of having too much water in
the dam.
61. After all, if the Corps agreed to hold the
above quantities for money, then they should be able to
hold them for environmental protection.
62. The Corps does store and release some water to
partially fulfill one of its missions of whitewater
recreation, although this storage is only in the spring
and fall.
63. On many occasions these releases do not occur
because of lack of water.
64. This water could be stored at the Drought Pool
level that the Corps has offered to DRBC for money.
65. Storage at the Drought Pool level would allow
releases of approximately 200 cubic feet per second
(CFS) for three months, independent of stream inflow and
outflow.
66. Storage at the Hydroelectric Pool Level would
allow releases of approximately 450 CFS for three
months, independent of stream inflow and outflow.
67. Releases could be adjusted for existing
conditions, thus the above rates would be greatly
reduced during periods where natural flows were higher.
68. During July 20 to July 21, 1999 (24 hour
period) the outflow from the Walter Dam was 65 CFS.
69. Thus, Walter Dam could have added 200-450 CFS
to the existing 65 CFS, thereby protecting the
environment of the Lehigh River.
70. Storing and releasing, as described above,
would protect the aquatic life in the Lehigh during
drier summer months, and provide for fishing, canoeing
and whitewater rafting during summer months.
71. Storing and releasing, as described above
would dilute the acid mine drainage flowing in the
Lehigh River.
72. Storing and releasing, as described above,
would dilute downstream sewage water.
73. Storing and releasing, as described above,
would help the local economy by providing tourist
dollars to local businesses that are dependent on the
Lehigh flowing year round, such as bait and tackle
shops, whitewater rafting concerns, restaurants, motels,
etc.
74. Storing and releasing, as described above,
would help during periods of drought, such as the
current drought emergency declared by the governor of
Pennsylvania on July 20, 1999 in that such releases
would aid not only the Lehigh River, but would help to
keep the salt line down on the Delaware River.
75. Storing and releasing, as described above, and
for environmental protection, would not interfere with
the Corps' other missions of flood control and
recreation.
76. Storing and releasing, as described above,
could be done in a manner consistent with releases for
existing whitewater events.
77. Storing and releasing, as described above,
would not be cost prohibitive as many of the systems are
run automatically, and the water belongs to the citizens
of Pennsylvania.
78. Storing and releasing, as described above, can
be safely done because the Corps has already done so,
and has offered to do so again---but for money.
79. The current practice of releasing large
amounts of water in the spring harms aquatic life by
flushing out and destroying fish eggs.
80. The current practice of releasing large
amounts of water in the spring harms nesting
birds located just below the release point.
81. Studies have shown that rapid flow
fluctuations adversely affect the diversity and the
density of fish and benthic invertebrates.
82. The Corps' failure to consider and adopt
environmental protection as one of its missions is
arbitrary, capricious, an abuse of discretion and is
contrary to law.
83. The Corp's releases in the spring cause injury
and mortality to aquatic species and wildlife , thereby
violating its mission of environmental protection and is
agency action unlawfully withheld or unreasonably
delayed pursuant to the APA, 5 U.S.C. 706 (1), and is
arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law pursuant to
the APA, 5 U.S.C. 706 (2) (A).
84. The Corps's failure to store and release
water, as described above, violates its mission
of environmental protection is agency action unlawfully
withheld or unreasonably delayed pursuant to the APA, 5
U.S.C. 706 (1), and is arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law
pursuant to the APA, 5 U.S.C. 706 (2) (A).
COUNT 2
THE CORPS IS REFUSING ITS MISSION OF ENVIRONMENTAL
PROTECTION BECAUSE IT IS NOT BEING PAID FOR SUCH A
MISSION
85. Plaintiffs incorporate by reference herein the
allegations found in paragraphs 1 through 84, above.
86. The Corps has already agreed to store and
release, as described above, but only if it is paid to
do so by the DRBC.
87. The Corps has stored and released, as
described above, when the DRBC has both declared a
drought emergency and agreed to pay for such storage and
release.
88. The Corps has already agreed to store and
release, as described above, if it would be paid money
for hydroelectric power.
89. Many sportsman groups, canoeists and others,
including Plaintiff LRSA, have repeatedly asked the
Corps to fulfill its environmental protection mission by
storing water during winter and spring months, and then
releasing this water during drier summer months, thereby
providing a constant flow of water in the Lehigh River.
90. Several legislators, likewise, have made
similar requests to the Corps.
91. Several fish and wildlife agencies, including
U.S. Fish & Wildlife and Pennsylvania Fish & Boat
Commission, likewise have made similar requests to the
Corps.
92. The Corps has responded to such requests by
saying that it would consider such requests if a non-
federal sponsor would by willing to pay money.
93. The Corps should not have to be paid money to
fulfill its statutory obligation to the citizens of
Pennsylvania.
94. The Corps is a government owned and operated
public service that is paid for by taxpayer dollars, and
should not attempt to make a profit or even to cover its
costs of complying with its own statutorily required
mission.
95. When Congress passed the Water Resources
Development Act of 1990, it intended for the Corps to
fulfill the mission of environmental protection without
additional cost to the taxpayers.
96. The Corps has no legal or moral right to
demand money before it will fulfill its mission of
environmental protection.
97. The Corps is already being paid to operate
pursuant to its missions.
98. The water that is the subject of this
Complaint belongs to the citizens of Pennsylvania.
Pennsylvania Constitution, Art. I, 27.
99. The Corps' failure to provide environmental
protection because it is not being paid to do so is
agency action unlawfully withheld or unreasonably
delayed pursuant to the APA, 5 U.S.C. 706 (1), and is
arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law pursuant to the
APA, 5 U.S.C. 706 (2) (A).
COUNT 3
THE AGREEMENT BETWEEN THE CORPS AND THE DELAWARE RIVER
BASIN COMMISSION TO STORE WATER AT WALTER DAM FOR
DROUGHT EMERGENCIES SHOULD BE ENJOINED IF IT DOES NOT
ALSO PROVIDE ENVIRONMENTAL PROTECTION
100. Plaintiffs incorporate by reference herein
the allegations found in paragraphs 1 through 99, above.
101. The Corps and the Delaware River Basin
Commission (DRBC) are negotiating, or have negotiated,
an agreement whereas the Corps would store water in
Walter Dam, and then release the water in the event that
DRBC declares a drought emergency.
102. In either event, from at least August 2,
1999, the Corps has agreed to store water until
elevation 1392 is reached, which would provide storage
of 11.5 billion gallons.
103. The Corps has said that it will hold the flow
from the dam at 50 CFS, which is a reduction from
present levels, until it reaches elevation 1392.
104. The mission, or purpose of Walter Dam
includes environmental protection.
105. The mission, or purpose of Walter Dam does
not include storage for drought conditions.
106. In the event, the above action or agreement
for drought control conflicts with environmental
protection, to wit: the action or agreement does not
provide for daily releases of water during the three
summer months sufficient to provide environmental
protection as described in earlier Counts of this
Complaint, then such action violates the Corps mission
of environmental protection.
107. To the extent the Corps' action in storing
water for drought control would conflict with its
mission for environmental protection, as described
above, then such action, is agency action unlawfully
withheld or unreasonably delayed pursuant to the APA, 5
U.S.C. 706 (1), and is arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law
pursuant to the APA, 5 U.S.C. 706 (2) (A).
108. Plaintiff's would request that the Corps be
enjoined from entering into an agreement with DRBC for
drought control, or that such agreement be rescinded if
already in effect.
COUNT 4
IN THE EVENT THAT STORAGE FOR DROUGHT CONTROL CAN BE
DONE CONSISTENT WITH THE CORPS' MISSION OF ENVIRONMENTAL
PROTECTION THEN THE MONEY THE CORPS IS REQUESTING TO
STORE AND RELEASE AT WALTER DAM IS UNREASONABLE,
UNCONSCIONABLE, INCORRECTLY CALCULATED, PROHIBITIVE AND
RESULTS IN TAXPAYERS PAYING THEIR GOVERNMENT TWICE FOR
THE SAME WATER, WHICH SAID TAXPAYERS OWN ANYWAY
109. Plaintiffs incorporate by reference herein
the allegations found in paragraphs 1 through 108,
above.
110. In the event that storage for drought control
can be done consistent with the Corps' mission of
environmental protection then the money the Corps is
requesting to store and release at Walter Dam is
unreasonable, unconscionable, incorrectly calculated,
prohibitive and results in taxpayers paying their
government twice for the same water, which said
taxpayers own anyway.
111. In 1985, the Corps charged DRBC $1,000 per
year, for a two-year period, to store water for drought
control.
112. In 1991, the Corps charged DRBC $8,500 per
year, for a five-year period, to store water for drought
control.
113. In 1999, the Corps wants to charge DRBC
$171,300 per year, for a five year period, to store
water for drought control.
114. This overinflated jump to $171,300 per year
is not justified by any generally accepted accounting
principles, in that the amortization is over the life of
the estimated investment and not the life of the asset
itself.
115. This overinflated jump to $171,300 per year
is unreasonable, unconscionable and prohibitive in that
it requires DRBC, or any other entity, to pay for water
storage at prices that have no basis in fact or
accounting principles.
116. Only $10,000 of the above $171,300 is for
operation and maintenence.
117. In addition, since DRBC is a public agency
funded by public money (including federal and
Pennsylvania money), then the taxpayer is being forced
to pay twice.
118. The Corps' action in charging twice for
environmental protection, and charging outrageous
amounts, is agency action unlawfully withheld or
unreasonably delayed pursuant to the APA, 5 U.S.C. 706
(1), and is arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law
pursuant to the APA, 5 U.S.C. 706 (2) (A).
COUNT 5
CORPS' RELEASES FROM BELTZVILLE DAM FOR MONEY,
INSTEAD OF STORING AND RELEASING FROM WALTER DAM
VIOLATE THE CORPS MISSION OF RECREATION FOR BELTZVILLE
DAM
119. Plaintiffs incorporate by reference herein
the allegations found in paragraphs 1 through 118,
above.
120. Currently, the Corps is paid by DRBC to store
and release water to the Lehigh River from the
Beltzville Dam, located approxinately 20 miles
downstream from the Walter Dam, whenever there are
drought emergencies.
121. The Beltzville Dam has a capacity for
approximately 22 billion gallons, and normally holds 13
billion gallons, or over 50 per cent of its capacity.
122. The Corp's missions for the Beltzville Dam
includes flood control, recreation and environmental
protection.
123. If the Corps were required to store and
release at the Walter Dam, then the Corps would have no
reason to release from the Beltzville Dam, and would not
receive money.
124. Releasing water from the Beltzville Dam
significantly lowers the water level at the Beltzville
Lake, interfering with recreation on that lake.
125. Beltzville Dam contains a state park and is a
major recreational area, providing for picnicking,
fishing, swimming, boating, camping and bicycling.
126. Recent releases to handle the drought of
Summer, 1999 have resulted in the closing of the beach
used for swimming, as well as the closing of a boat
ramp.
127. Walter Dam is only a reservoir, and provides
limited boating (because of limited parking and access)
and limited fishing; there is no swimming.
128. Thus, the Corps is harming recreation at the
Beltzville Dam, when it could store and release from the
Walter Dam.
129. The Corps' action in harming recreation at
the Beltzville Dam because it is getting paid to release
water, instead of using the Walter Dam to store and
release water, where it is not getting paid to do so, is
agency action unlawfully withheld or unreasonably
delayed pursuant to the APA, 5 U.S.C. 706 (1), and is
arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law pursuant to the
APA, 5 U.S.C. 706 (2) (A).
COUNT 6
THE CORPS IS VIOLATING THE WATER RESOURCES DEVELOPMENT
ACT OF 1988 BY NOT ADEQUATELY PROVIDING FOR RECREATION
AS ONE OF ITS MISSIONS
130. Plaintiffs incorporate by reference herein
the allegations found in paragraphs 1 through 129,
above.
131. The Water Resources Development Act of 1988,
P.L. 100-676, 102 Stat. 4022, 6 (a), requires that the
Corps protect and enhance recreation associated with the
Walter Dam, as long as that activity is compatible with
other project purposes.
132. The above act specifically says that the term
"recreation" "includes (but shall not be limited to)
downstream whitewater recreation which is dependent on
project operations, recreational fishing, and boating on
water at the project." Id. at 6 (b).
133. The Corps schedules water releases a few
times per year for the benefit of whitewater rafting and
allows fishing and boating in the reservoir.
134. The Corps fails to provide whitewater rafting
all year round, when it could do so and still be
compatible with the project's other purposes, including
flood control and environmental protection.
135. The Corps fails to provide water for fishing
and boating in the Lehigh River, when it could do so and
still be compatible with the project's other purposes,
including flood control and environmental protection.
136. The Corps only provides a limited parking
space and sloped area for boating---that is the extent
of the Corps' fulfillment of its mission to provide
fishing and boating.
137. The Corps is not acting in accordance with
law because releases of water only a few times per year
and failure to store water during wet periods and
release water during summer months when the Lehigh River
is low does not protect and enhance recreation.
138. The Corps' failure to provide recreation
downstream is agency action unlawfully withheld or
unreasonably delayed pursuant to the APA, 5 U.S.C. 706
(1), and is arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law
pursuant to the APA, 5 U.S.C. 706 (2) (A).
COUNT 7
THE CORPS IS VIOLATING THE FISH AND WILDLIFE
COORDINATION ACT BY FAILING TO CONSERVE WILDLIFE
RESOURCES AND BY FAILING TO PREVENT SUCH LOSS AND
DAMAGES
139. Plaintiffs incorporate by reference herein
the allegations found in paragraphs 1 through 138,
above.
140. Pursuant to the Fish & Wildlife Coordination
Act, 16 U.S.C.A. 662 (a), the Corps is required to
conserve wildlife resources and to prevent the loss and
damages to such resources.
141. The Corps holds water from storm events until
after the storm, and then releases such water as quickly
as possible to get back to its low elevation.
142. On one occasion, the Corps even violated its
own safety requirements by discharging more water than
is allowed.
143. These large and sudden releases would not
occur naturally in the Lehigh River.
144. These large and sudden releases, during
spring, destroy nesting birds, kill macroinvertabrates
(on which fish depend) scour out fish eggs, and
ultimately deposit silt in areas where fish would lay
eggs.
145. Failure to store and release during the
summer harms aquatic life by failing to provide water to
the Lehigh River, which is needed for flow, temperature
control and to dilute the acid mine drainage already in
the river.
146. Since August 2, 1999, the Corps has reduced
the flow of water in the Lehigh to store water for
drought control.
147. Such reduction in flow, during a drought
harms fish and wildlife dependent on that water.
148. The Corps' failure to conserve wildlife
resources and to prevent the loss and damages to such
resources is agency action unlawfully withheld or
unreasonably delayed pursuant to the APA, 5 U.S.C. 706
(1), and is arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law
pursuant to the APA, 5 U.S.C. 706 (2) (A).
COUNT 8
THE CORPS IS VIOLATING THE FISH AND WILDLIFE
COORDINATION ACT BY FAILING TO COORDINATE WATER RELEASES
WITH FISH AND WILDLIFE AGENCIES
149. Plaintiffs incorporate by reference herein the
allegations found in paragraphs 1
through 148, above.
150. Pursuant to the Fish & Wildlife Coordination
Act, 16 U.S.C.A. 662 (a), the Corps is required to
consult, inter alia, with the U.S. Fish and Wildlife
Service, the Pennsylvania Fish & Boat Commission and the
Pennsylvania Game Commission whenever it proposes to
control or modify the waters of the Lehigh River.
151. The purpose of such consultation is to
conserve wildlife resources and to provide for the
development of such resources. Id.
152. Large and sudden releases from the Walter dam
constitute controlling or modifying the Lehigh River.
153. The above releases harm birds and aquatic
species every spring.
154. Failing to store and slowly releasing that
water will benefit the Lehigh River, and thus releasing
that water instead constitutes controlling or modifying
the Lehigh River.
155. Failing to hold and slowly release the above
water during drier months results in the death or
destruction of fish and aquatic species every summer.
156. The Corps has not coordinated its releases
with U.S. Fish & Wildlife Service.
157. The Corps has not coordinated its failing to
hold the water and release it slowly during the summer
with U.S. Fish & Wildlife Service.
158. The Corps has not coordinated its failing to
hold the water and release it slowly during the summer
with the Pennsylvania Fish & Boat Commission.
159. Failing to hold the water and release it
slowly during the summer constitutes controlling or
modifying the Lehigh River.
160. U.S. Fish & Wildlife have requested that the
Corps store and release water, as described above.
161. The Pennsylvania Fish & Boat Commission have
requested that the Corps store and release water, as
described above.
162. The Corps has not complied with the above
requests from U.S. Fish & Wildlife and the Pennsylvania
Fish & Boat Commission.
163. The Corps has failed to coordinate its August
2, 1999 reduction of flow in the Lehigh with fish and
wildlife agencies.
164. The Corps' action in failing to coordinate
with U. S. Fish & Wildlife and the Pa. Fish & Boat
Commission when it releases large volumes of water, when
it fails to hold and slowly release water during the
summer and when it reduces the flow during a drought is
agency action unlawfully withheld or unreasonably
delayed pursuant to the APA, 5 U.S.C. 706 (1), and
is arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law pursuant to the
APA, 5 U.S.C. 706 (2) (A).
COUNT 9
THE CORPS IS VIOLATING PENNSYLVANIA WATER QUALITY
STANDARDS
165. Plaintiffs incorporate by reference herein
the allegations found in paragraphs 1 through 164,
above.
166. Federal antidegradation water quality
standard laws provide that streams receive, at a
minimum, the following protection: "[E]xisting instream
water uses and the level of water quality necessary to
protect the existing uses shall be maintained and
protected". 40 CFR 131.12
167. "Existing uses" are "those uses actually
attained in the waterbody on or after November 28, 1975,
whether or not they are included in the water quality
standards." 40 CFR
131.3(e).
168. The EPA in its Water Quality Standards
Handbook, August, 1994, Chapter 4.4 says that "full
protection of the existing use requires protection of
the entire water body...."
169. On January 8, 1997, the EPA promulgated
antidegradation water quality standard regulations for
Pennsylvania which are identical to those found above:
"[E]xisting instream water uses and the level of water
quality necessary to protect the existing uses shall be
maintained and protected". 61 FR 64816 (Dec. 9, 1996).
170. The Lehigh River, below the Walter Dam, is
designated as a High Quality-Cold Water Fishes stream.
25 Pa. Code 93.9.
171. The uses to be protected are those of a High
Quality Watershed and for cold water fish.
172. Corps releases in the spring destroy existing
uses in the Lehigh River by flushing and killing eggs of
aquatic species, killing the macroinvertabrates on which
aquatic species depend, and causing erosion downstream.
173. The Corps' failure to store and release
during the summer destroys the existing uses of the
Lehigh River by allowing this waterbody to have low
flows which adversely affects the life in the stream.
174. The Corps' failure to store and release
during the summer deprives the Lehigh River of cooler
water, thereby harming the cold water fish, which cannot
propagate or survive in warmer water.
175. Diminution of water quantity may adversely
affect water quality.
176. In addition, water in High Quality, or Tier 2
watersheds may not be degraded without a permit from
Pennsylvania.
177. The Corps has not received a permit from
Pennsylvania to degrade the Lehigh River.
178. The Corps' action in violating Pennsylvania's
antidegradation water quality laws when it releases
large volumes of water and when it fails to hold and
slowly release water during the summer is agency action
unlawfully withheld or unreasonably delayed pursuant to
the APA, 5 U.S.C. 706 (1), and is arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law pursuant to the APA, 5 U.S.C. 706
(2) (A).
COUNT 10
THE CORPS IS VIOLATING THE FEDERAL CLEAN WATER ACT
BY VIOLATING PENNSYLVANIA'S WATER QUALITY STANDARDS
179. Plaintiffs incorporate by reference herein
the allegations found in paragraphs 1 through 178,
above.
180. Pursuant to the CWA, federal agencies must
comply with state water standards. CWA, 33 U.S.C.1323.
181. The Corps operation of the Walter Dam which
violates state water quality standards violates CWA, 33
U.S.C. 1323.
182. The Corps operation of the Walter Dam which
violates state water quality standards is agency action
unlawfully withheld or unreasonably delayed pursuant to
the APA, 5 U.S.C. 706 (1), and is arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law pursuant to the APA, 5 U.S.C. 706
(2) (A).
COUNT 11
THE CORPS IS VIOLATING PENNSYLVANIA'S CONSTITUTION
183. Plaintiffs incorporate by reference herein
the allegations found in paragraphs 1 through 182,
above.
184. Pennsylvania's Constitution says the
following: "The people have a right to clean air, pure
water, and to the natural, scenic, historic and esthetic
values of the environment. Pennsylvania's public
natural resources are the common property of all the
people, including generations yet to come. As trustee
of these resources, the Commonwealth shall conserve and
maintain them for the benefit of all the people."
Pa. Constit., Art. I, 27
185. The Corps' action of causing fish and
wildlife mortality by spring releases of water and
failure to store and release during the summer, as
described above, harms the environment of the people of
Pennsylvania, and thus violates its Constitution.
186. The Corps operation of the Walter Dam which
violates Pennsylvania's Constitution is agency action
unlawfully withheld or unreasonably delayed pursuant to
the APA, 5 U.S.C. 706 (1), and is arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law pursuant to the APA, 5 U.S.C. 706
(2) (A).
COUNT 12
CORPS RELEASES FROM WALTER DAM FAIL TO COMPLY WITH THE
NATIONAL ENVIRONMENTAL POLICY ACT
187. Plaintiffs incorporate by reference herein
the allegations found in paragraphs 1 through 188,
above.
188. The National Environmental Policy Act (NEPA),
42 U.S.C.4332 (2) (C), requires that for all "major
Federal actions significantly affecting the quality of
the human environment," the government must explain why
it has chosen a particular course of action and what
environmental harms or benefits will accrue from that
action.
189. The Corps releases from Walter Dam in the
spring are a major federal action significantly
affecting the quality of the human environment.
190. The Corps' releases from Walter in the spring
have a significant harm on the environment by killing
nesting birds and their young, and by flushing and
killing the eggs of aquatic species.
191. The Corps' reducing the flow in the Lehigh
during the drought of summer, 1999 is major federal
action significantly affecting the quality of the human
environment.
192. The Corps has never prepared an Environmental
Impact Statement (EIS) for the above actions, as
required by NEPA.
193. The Corps has never prepared an Environmental
Assessment (EA) for the above actions, as required by
NEPA.
194. The Corps has never even prepared an Finding
of No Significant Impact (FONSI) for the above actions,
as required by NEPA.
195. The Corps has never considered alternatives to
its scheduled releases, such as storing and releasing
lesser quantities of water throughout the drier months,
thereby minimizing the impacts on wildlife.
196. Many sportsman groups, canoeists and others,
including Plaintiff LRSA, have repeatedly asked the
Corps to fulfill its environmental protection mission by
storing water during winter and spring months, and then
releasing this water during drier summer months, thereby
providing a constant flow of water in the Lehigh River.
197. Several legislators, likewise, have made
similar requests to the Corps.
198. The Corps has responded to such requests by
saying that it would consider such requests if a non-
federal sponsor would by willing to pay money.
199. The Corps failure to consider alternatives,
except for money, violates the letter and the spirit of
NEPA, and is agency action unlawfully withheld or
unreasonably delayed pursuant to the APA, 5 U.S.C. 706
(1), and is arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law
pursuant to the APA, 5 U.S.C. 706 (2) (A).
WHEREFORE, Plaintiffs respectfully request this
Court to do the following: 1) Hold that the Corps is
causing environmental harm to the Lehigh River and its
wildlife; that it is failing to fulfill its missions of
environmental protection and recreation; that it is in
violation of several major environmental laws; and that
it is violating its public duties by only willing to
fulfill its missions if it is paid money; 2) The
Plaintiffs further respectfully request that the Corps
should be enjoined from releasing water in a manner that
violates the Corps mission of environmental protection
unless said water exceeds safety elevations for flood
control; and that the Corps be enjoined from entering
into any agreement with DRBC or in taking any action for
drought control storage unless said agreement or action
also provides for environmental protection; 3)The Corps
should be required to release water from the Walter Dam
during low flow periods, or any other period that would
provide year round environmental protection, and
according to a comprehensive plan worked out with U.S.
Fish & Wildlife , the Pennsylvania Fish & Boat
Commission and a coalition of private environmental
groups including Plaintiffs; and, 4) Plaintiffs
respectfully request that this Court award attorney and
expert fees and costs to Plaintiffs; and that this Court
award any other relief it may deem appropriate.
Respectfully submitted,
JOHN WILMER
Attorney for Plaintiffs
21 Paxon Hollow Road
Media, PA 19063
(610) 565-2736
I.D. # 33119
Date: August 10, 1999