Case COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND CIVIL PENALTIES. Federal Water Pollution Control Act 33 U.S.C 1251 et seq Administrative

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1 colpy WINTER KING CA Bar No pro hac vice JOSEPH PETTA CA Bar No 6665 pro hac vi SHUTE MIHALY WEINBERGER LLP 396 Hayes Street San Francisco California Telephone Facsimile hng@smwlaw.com petta@smwlaw.com FILED RECEIVED ENTERED SERVED ON COUNSEL/PARTIES OF RECORD nding JUL 2920 epend1g CLERK US DISTRICT COURT DISTRICT OF NEVADA BY DEPUTY JOHN MARSHALL NV Bar No Marsh Avenue Reno Nevada Telephone johnmarshall@charter.net 31 3-Cv Attorneys for Plaintiff Upper Communities Coalition South East 11 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA NORTHERN DIVISION UPPER SOUTHEAST COMMUNITIES COALITION Plaintiff U.S ARMY CORPS OF ENGINEERS LT GEN THOMAS BOSTICK in his official capacity Chief of Engineers and Commanding General U.S Army Corps of Engineers COL MICHAEL FARRELL in his official capacity District Commander Sacramento District U.S Army Corps of Engineers KRISTINE HANSEN in her official capacity Senior Project Manager Reno Field Office Sacramento District U.S AriuyCorps of Engineers and REGIONAL TRANSPORTATION COMMISSION OF WASHOE COUNTY Case No COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND CIVIL PENALTIES Federal Water Pollution Control Act 33 U.S.C 51 et seq Administrative Procedure Act U.S.C 701 et seq National Environmental Policy Act 42 U.S.C 4321 et seq Endangered Species Act 16 U.S.C 31 etseq QO- VJat$ 26 Defendants fl ci nti1s 27 Complaint For Declaratory And Injnnctive Relief And Civil Penalties

2 INTRODUCTION This is complaint for declaratory and injunctive relief and the imposition of civil penalties under the Federal Water Pollution Control Act more commonly referred to as the Clean Water Act CWA 33 U.S.C 51 et seq the Administrative Procedure Act U.S.C 701 et seq APA the National Environmental Policy Act 42 U.S.C 4321 et seq NEPA the Endangered Species Act 16 U.S.C 31 et seq ESA and the CWA NEPA and ESA implementing regulations The Upper South East Communities Coalition Coalition or plaintiff challenges the determination of Defendants U.S Army Corps of Engineers Chief of Engineers 10 and Commanding General Lt Gen Thomas Bostick District Commander Col Michael 11 Farrell and Senior Project Manager Kristine Hansen collectively the Corps that the inevitable dredging and filling activities that will occur in waters of the United States during the construction of 4.5 miles of 5.5-mile proposed highway do not require the project proponent to 14 obtain permit under Section 404 of the CWA Section 404 Permit 33 U.S.C 11a 44a 33.F.R 323.3a before beginning construction of the first mile of the 16 highway The Corpss determination is in violation of the APA NEPA the ESA and the NEPA 17 and ESA implementing regulations 18 The Coalition also brings this citizen suit under 505 of the Clean Water Act U.S.C 65a1 against the agency constructing the highway the Regional Transportation 20 Commission of Washoe County RTC for past and continuing violations of the CWA 21 RTC is currently engaged in construction of Phase of 5.5-mile regional 22 highway project the SouthEast Connector SEC that if not abated will cause potentially 23 significant impacts to the riparian and aquatic environments of the Truckee River and Truckee 24 Meadows This construction includes massive grading efforts removal of riparian vegetation 25 and construction of large bridge over the Truckee River 26 The SEC is proposed to be built entirely within FEMA-designated Special 27 Flood Hazard Area just south of the City of Sparks and east of the City of Reno This area is prone to serious and repeated flooding

3 The Corps has not issued or approved any environmental assessment or impact statement analyzing the SECs impacts and alternatives If unabated construction of Phase will prevent the federally mandated consideration of reasonable alternatives to future phases of the SECs construction The Corps by arbitrarily and capriciously determining that Phase of the SEC does not require Section 404 Permit committed an abuse of discretion and caused major project involving the dredging and filling of waters of the United States to commence with no prior environmental review The Defendants actions will cause Plaintiff irreparable environmental harm in the 10 form of significant impacts to the riparian and aquatic environment of the Truckee River and 11 Truckee Meadows degrading habitat for fish birds and other wildlife and increasing the risk of catastrophic floods The Defendants actions will cause Plaintiff irreparable procedural harm in the 14 form of irretrievably committing resources to Phase of the SEC such that reasonable less environmentally adverse alternatives to Phase II of the SEC will be foreclosed This suit alleges that the Corpss authorization of RTC to segment its project into 17 two Phases was inconsistent with NEPA and the ESA arbitrary and capricious and an abuse 18 of discretion and thus violated the APA See U.S.C 7062A Likewise by commencing 19 Phase of the SEC without Section 404 Permit RTC is in violation of 33 U.S.C 11a 20 and 44a and 33 C.F.R 323.3a 21 JURISDICTION AND VENUE This Court has original jurisdiction over the subject matter of this action pursuant 23 to U.S.C 31 because it arises under the laws of the United States U.S.C 701 et seq 24 42U.S.C 4321 et seq and 16 U.S.C 31 etseq.andpursuanttou.s.c because the suit is brought against an officer of the United States Jurisdiction over this action is 26 also conferred by 33 U.S.C 65a The requested relief is proper under U.S.C U.S.C 2201 and 2202 and 33 U.S.C 19d and 65a An actual justiciable controversy exists between Plaintiff and Defendants

4 Pursuant to Section 505b1A of the CWA 33 U.S.C 65b1A Plaintiff notified Defendants of RTC violation of the CWA and of Plaintiffs intent to sue under the CWA by letter dated and postmarked May See May Coalitions Notice of Intent to Sue Under Clean Water Act Notice Letter attached as Exhibit The allegations in the Notice Letter are incorporated herein by this reference Plaintiff notified the RTC the Corps the Administrator of the United States Environmental Protection Agency EPA the regional Administrator of EPA the Chief of the Bureau of Water Pollution Control In the Nevada Division of Environmental Protection NDEP and the Attorney General of the State of Nevada of its intent to sue the RTC by mailing copies of the Notice Letter to these 10 officials on May More than 60 days have passed since Plaintiff sent the Notice Letter to these parties Upon information and belief neither the EPA nor NDEP has commenced and diligently prosecuted an action that would preclude this action under either 33 U.S.C 19g or 14 65blB Venue is proper in this District under U.S.C 91b and U.S.C 65c because the federal agency actions giving rise to the claim occurred in this 17 District the RTC is located within this District and the Project site is located within this 18 District Plaintiff has satisfied any and all conditions precedent to filing this action and has 20 exhausted any and all available administrative remedies to the extent required by law Plaintiff has no adequate remedy at law No monetary damages or other legal 22 remedy can adequately compensate Plaintiff its members or the public caused by the 23 Defendants actions Plaintiff and its members are adversely affected and aggrieved by the Defendants 25 unlawful actions Plaintiffs rely on the ability of the floodplain to store floodwaters and prevent 26 catastrophic injury to people and property Plaintiffs members use and enjoy the Truckee River 27 and Truckee Meadows for recreational and aesthetic purposes and their interests are adversely affected by the Defendants activities Some of Plaintiffs members live adjacent to the proposed

5 path of the SEC RTCs construction of the SEC and the Corpss failure to comply with federal law by allowing RTC to begin construction on the SEC without Section 404 Permit will result in irreparable harm to the environment public health and the safety Plaintiff and its members The relief requested will fully redress these injuries 19 Attorneys for Plaintiff have complied with Local Rule IA 10-2 PARTIES 20 Defendant U.S Army Corps of Engineers is an agency of the United States government As federal agency the Corps must comply with federal law including NEPA and the CWA The disclaimer of jurisdiction over Phase of the SEC was issued by the Corpss 10 Reno Field Office Sacramento District which is located at 300 Booth Street Room 3050 in 11 Reno Nevada 21 Defendant Lt General Thomas Bostick Bostick is the Commanding General and Chief of Engineers of the Corps Defendant Bostick is responsible for ensuring that the 14 Corps including officials and employees under his supervision complies with all applicable federal laws including NEPA and the ESA Defendant Bostick is sued in his official capacity Defendant Col Michael Farrell Farrell is the District Commander of the 17 Sacramento District of the Corps Defendant Farrell is responsible for ensuring that the Corps 18 including officials and employees under his supervision complies with applicable federal laws 19 including NEPA in the Corps Sacramento District Defendant Farrell is sued in his official 20 capacity Defendant Kristine Hansen Hansen is the Senior Project Manager of the 22 Reno Field Office of the Sacramento District of the Corps Defendant Hansen issued the 23 disclaimer of jurisdiction that allowed the RTC to proceed with construction of Phase of the 24 SEC without Section 404 Permit Defendant Hansen is sued in her official capacity Defendant Regional Transportation Commission of Washoe County RTC is 26 the public body responsible for transportation infrastructure throughout the City of Reno City of 27 Sparks and unincorporated areas of Washoe County Nevada RTC was formed in 1979 by state legislation that consolidated the Regional Street and Highway Commission the Regional Transit

6 Commission and the Washoe County Area Transportation Study Policy Committee RTC provides public transportation services street and highway construction and transportation planning RTC offices are located at 1105 Terminal Way in Reno Nevada 25 RTC has conducted directed approved and/or authorized the actions at issue in this case 26 Plaintiff Upper Southeast Communities Coalition Coalition is non-profit corporation comprised primarily of individuals who reside in communities near the proposed Southeast Connector and who engage in recreation in areas that will be impacted by the Connector including the Rosewood Lakes Golf Course The Coalitions members will be 10 severely impacted by the proposed Southeast Connector which will be constructed adjacent to 11 the areas where they live and recreate and threatens to increase flooding direct contaminated water and soil toward their communities pollute the air they breathe destroy wildlife and habitat and otherwise adversely impact the environment and viewshed in the area Plaintiff uses education advocacy and when necessary legal enforcement tools to achieve its goals 16 Defendants actions will negatively affect aquatic habitat values for fish and other 17 aquatic wildlife and birds decrease populations of these species including the federally 18 endangered Lahontan cutthroat trout and Cui-ui and therefore decrease Plaintiffs members 19 ability to successfully observe wildlife and recreate both in the area adjacent to the construction 20 as well as in upstream and downstream areas that are ecologically connected to the areas most 21 directly affected by the Defendants actions Plaintiffs members intend to continue to use these 22 same areas and waters in the future The instant action would redress the harms faced by Plaintiff and its members by 24 requiring RTC to immediately cease and desist all construction activities on the SEC until the 25 required environmental review including consideration of reasonable less environmentally 26 adverse alternatives has been conducted and Section 404 Permit has been issued for the 27 project in its entirety Complaint For Declaratory And injunctive Relief And Civil Penalties

7 30 Further the instant action would result in civil penalties that would deter future violations that would threaten Plaintiffs and its members use and enjoyment of waters adjacent to downstream and upstream from the locations where Defendants violations have occurred 31 Plaintiff has standing to bring this action because of the actual and concrete injuries Defendants have caused and are continuing to cause for Plaintiff and its members These injuries are fairly traceable to Defendants violations and are capable of redress by action of this Court FACTUAL BACKGROUND 32 The proposed SouthEast Connector or SEC is 5.5-mile-long six-lane-wide 10 highway proposed to be built entirely within FEMA-designated Special Flood Hazard Area 11 juu south of the City of Sparks and east of the City of Reno As the FEMA designation suggests this area is prone to serious and repeated flooding 33 Truckee Meadows through which the SEC is proposed to be built has been 14 designated by the regional flood control agency as detention basin for flood waters 34 The SEC would require filling approximately acres of wetlands and other 16 waters of the United States These impacted wetlands occur at various points along the 17 proposed SEC route and support wide variety of terrestrial and aquatic invertebrates 18 amphibians reptiles mammals and birds and raptors There is no present need for the SEC to reduce traffic congestion in the area In 20 recent public meeting representatives of RTC acknowledged that this proposed major arterial is 21 not needed to address any current traffic congestion but is intended to alleviate projected 22 congestion alleged to occur in the future Because construction of the SEC would inevitably require RTC to fill wetlands the agency submitted an application to the Corps in May 2011 requesting approval of permit to discharge dredged and fill materials into waters of the United States Section 404 Permit 26 At the same time RTC applied to the Nevada Department of Environmental Protection for 27 related Clean Water Act Section 401 certification

8 37 These applications described the project as major arterial running from the intersection of Greg Boulevard and Sparks Street in the north to the intersection of Veterans Parkway and South Meadows Parkway in the south i.e. the entire 5.5-mile SEC 38 Scores of residents living near the proposed project site as well as the U.S Fish and Wildlife Service Pacific Southwest Region and the Washoe-Storey Conservation District objected to the RTC permit application expressing concerns about the roads flooding impacts destruction of wetlands impacts on birds and other species loss of property value air quality degradation and noise impacts 39 Commenters also questioned the need for new 5.5-mile-long six-lane highway 10 given the economic downturn the bursting of the housing bubble and the existence of major 11 arterial McCarran Blvd which runs parallel to the proposed SEC and lies only 1.5 miles to the west of the SEC alignment Members of the Coalition were among those commenters who objected Following this public outcry RTC decided to segment its project into two phases Phase would be the northernmost one-mile stretch of the SEC which would 16 include bridge over the Truckee River and an overpass over Clean Water Way 17 Phase deadends 800 feet south of Clean Water Way Phase II would continue from Clean Water Way to 18 South Meadows Parkway Phase of the SEC is expected to cost approximately $65 million or 26% of the 20 total cost of the SEC even though it is only 18% of the total length of the Project In September 20 while its Section 404 permit applicationwas still pending 22 RTC requested the Corpss permission to proceed with construction of Phase without Section permit because Phase would have no impact to waters of the United States In November 20 Defendant Hansen notified RTC by letter that the Corps had 25 determined that Phase would not result in the discharge of dredged or fill material within 26 waters of the United States and would not involve work in navigable waters of the United States 27 As result the Corps advised that Department of the Army Permit was not required for this

9 work The Corpss determination was unaccompanied by any evidence analysis or reasoning to support its conclusion 44 This notice was not published or otherwise made generally available to the public The Coalition obtained copy on July as result of request for public documents made to the Nevada Department of Environmental Protection 45 In November 20 the RTC approved contracts with two construction companies to build Phase of the SEC for the cost of approximately $65 million 46 By this time no environmental review had been disclosed to the public nor had consultation been completed to analyze the proposed Projects impacts on endangered species or 10 historic/cultural resources However consultation had been initiated with relevant federal 11 agencies 47 In February 20 clearing and grubbing for the improvements at Greg Street and Sparks Boulevard began Grading and other earthmoving activities have occurred at Clean 14 Water Way 48 According to information presented to the public in March 20 intersection 16 Improvements at Greg Street and Sparks Boulevard were not expected to be complete until 17 September 20 the Clean Water Way Overcrossing was not expected to be complete until 18 October 20 the Veterans Memorial Bridge crossing the Truckee River was not expected to 19 be complete until March 2014 and the entirety of Phase was not expected to be complete 20 untiljuly At neighborhood meeting on May 20 representatives of the RTC indicated 22 that 10% of Phase had been completed Members of Plaintiff Coalition have visited the site of Phase regularly over the 24 last several months and have observed earthmoving equipment cranes and other construction 25 activity there In its Notice Letter dated and postmarked May Plaintiff notified 27 Defendants of RTCs violation of the CWA and of Plaintiffs intent to sue under the CWA for beginning construction of the SEC without Section 404 Permit Plaintiff notified the RTC the

10 Corps the Administrator of the EPA the regional Administrator of EPA the Chief of the Bureau of Water Pollution Control in the NDEP and the Attorney General of the State of Nevada of its intent to sue the RTC by mailing copies of the Notice Letter to these officials on May More than 60 days have passed since Plaintiff sent the Notice Letter Upon information and belief neither the EPA nor NDEP has commenced and diligently prosecuted an action that would preclude this action under either 33 U.S.C 19g or 65b1B LEGAL BACKGROUND The Clean Water Act 33 U.S.C 51 et seq Congress enacted the CWA to restore and maintain the chemical physical and 11 biological integrity of the Nations waters 33 U.S.C 5 1a In so doing Congress declared national goal of eliminating discharges of pollutants to navigable waters by Section 301a of the Clean Water Act 33 U.S.C 11a prohibits the point 14 source discharge of pollutants to navigable waters of the United States unless the discharge is in compliance with permit issued pursuant to section 402 or 404 of the Clean Water Act U.S.C Wetlands are considered waters of the United States and therefore 17 Section 404 permit is required prior to any activity that involves filling wetlands See C.F.R 3.2 The Corps is the principal federal agency charged with issuing Section permits The Corps may not issue Section 404 Permit if there is practicable alternative 21 to the proposed discharge which would have less adverse impact on the aquatic ecosystem C.F.R a alternatives include but are not limited to activities which 23 do not involve discharge of dredged or fill material into the waters of the United States Id at a An alternative is practicable if it is available and capable of being done after 26 taking into consideration cost existing technology and logistics in light of overall project 27 purposes If it is otherwise practicable alternative an area not presently owned by the applicant 10

11 which could reasonably be obtained utilized expanded or managed in order to fulfill the basic purpose of the proposed activity may be considered Id at 230.lOa2 57 Where as here the proposed discharge site includes wetlands or other special aquatic sites and the activity associated with discharge does not require access or proximity to wetlands to fulfill its basic purpose the Corps must presume that practicable alternatives are available and will have less adverse impacts unless clearly demonstrated otherwise Id at 230.lOa3 58 Under Section 505a of the CWA 33 U.S.C 65a citizen may commence an enforcement action against any person who violates an effluent standard or limitation under 10 the CWA violation of an effluent standard or limitation includes an unlawful act under 11 Section 301a of the CWA 33 U.S.C 11a 59 The citizen suit provision of the CWA grants jurisdiction to the United States District Courts to impose an injunction requiring compliance with the CWA to impose 14 appropriate civil penalties for violations of the CWA and to award costs of litigation including expert witness costs and reasonable attorneys fees to citizen plaintiffs 16 The National Environmental Policy Act 42 U.s.c 4321 et seq The issuance of Section 404 Permit requires the Corps to conduct an 18 environmental review of the proposed action under NEPA NEPA places on all federal agencies the responsibility to help ensure for all 20 Americans safe healthful productive and aesthetically and culturally pleasing surroundings 21 as well as the widest range of beneficial uses of the environment without degradation risk to 22 health or safety or other undesirabl and unintended consequences 42 U.S.C 432 1b Section 1022 of NEPA requires federal agencies to prepare consider and 25 approve an EIS for all major Federal actions significantly affecting the quality of the human 26 environment 42 U.S.C 43322C An EIS analyzes the potential environmental impacts 27 alternatives and mitigation opportunities for major federal actions 11

12 63 The fundamental purpose of an EIS is to force the decision-maker to ensure that the policies and goals defined in the NEPA are infused into the ongoing programs and actions of the federal government 40 C.F.R An EIS must analyze alternatives to the proposed action that could achieve the same objectives while reducing the environmental impacts 42 U.S.C 43322ciii 65 The required analysis must be completed before project construction begins Once NEPA review has been initiated no action concerning the proposal shall be taken which would 1111 Have an adverse environmental impact or Limit the choice of reasonable alternatives 40 C.F.R 06.1a An adequate environmental impact statement must consider the whole of the 11 federal action under review and any related projects 40 C.F.R NEPA prohibits the segmentation of portions of project that do not have independent utility See 40 C.F.R 02.4a 14 The Endangered Species Act 16 U.S.C 31 et seq 67 Once Section 404 permit application is submitted the application must be 16 reviewed for the potential impact on threatened or endangered species pursuant to Section of 17 the Endangered Species Act 16 U.S.C C.F.R 325.2b If the district engineer determines that the activity may affect threatened or 19 endangered species or their critical habitat she must initiate formal consultation procedures with 20 the U.S Fish Wildlife Service 16 U.S.C 36a 33 C.F.R 325.2b Once ESA consultation is initiated the federal agency and the permit applicant are 22 prohibited from making an irreversible or irretrievable commitment of resources. has 23 the effect of foreclosing the formulation or implementation of any reasonable and prudent 24 alternatives that could avoid jeopardizing the listed species or their habitat 16 U.S.C d 50 C.F.R /1/ 27 III 11/

13 FIRST CLAIM FOR RELIEF Against Defendant Corps Only Failure to Require Section 404 Permit in Violation of the APA U.S.C 701 et seq NEPA 42 U.S.C 4321 et seq the ESA 16 U.S.C 31 et seq and NEPA and ESA Regulations 70 Plaintiff hereby realleges and incorporates by reference the allegations contained in paragraphs through 69 herein 71 The Corps acted arbitrarily and capriciously in violation of the APA U.s.c 7062A by failing to comply with NEPA the ESA and implementing regulations when the corps determined unlawfully and without findings or evidence that Section 404 Permit was not required for Phase of the SEC 72 The Corpss determination was final agency action 73 The Corpss abuse of discretion caused major project involving the dredging and filling of waters of the United States to commence without the preparation of any environmental assessment impact statement or other NEPA document and without the required interagency consultation 74 The activities caused to be undertaken by the Corpss action will if unabated have significant environmental effects on the water and habitat of the Truckee River and Truckee Meadows and will limitthe Corpss choice of reasonable alternatives when it finally completes its review of RTCs pending Section 404 permit for the project 75 Plaintiff is suffering legal wrong and is adversely affected by the Corpss actions U.S.C SECOND CLAIM FOR RELIEF 23 Against Defendant RTC Only Dredging and Filling of Wetlands Without anauthorizingpermit Violations of 33 U.S.C Sections 11a and 44a 76 Plaintiff hereby realleges and incorporates by reference the allegations contained in paragraphs through 69 herein Complaint For Declaratory And injunctive Relief And Civil Penalties

14 77 RTC has begun construction of 5.5-mile highway that will require the filling of acres of wetlands an activity that requires Section 404 Permit 33 U.S.C 11a 44a 33 C.F.R 323.3a 78 Pursuant to the definitions contained in the CWA RTC is person responsible for discharging pollutants from point source into the waters of the United States and lacks permit authority for such discharges as required by Section 30 1a of the CWA 79 Impacts of and alternatives to Phase of the SEC have not been analyzed in any environmental assessment or impact statement If unabated RTCs actions will prevent the federally mandated consideration of reasonable alternatives to future phases of the SECs 10 construction Defendant RTCs violations have been occurring regularly and consistency since 14 at least February 20 and are continuing to occur through the date of this Complaint There is reasonable likelihood that the violations will occur in the future absent redress from this Court 81 Each day that RTC continues construction of the SEC without Section 404 Permit constitutes separate and distinct day of violation under the CWA RELIEF REQUESTED 18 WHEREFORE Plaintiff respectfully requests that this Court grant the following relief Adjudge and declare that the Corpss determination that Phase of the SEC does not require Section 404 Permit violated the APA NEPA the ESA and the NEPA and ESA 21 implementing regulations Adjudge and declare that RTC has violated and continues to violate the CWA by constructing the first phase of the SEC without Section 404 Permit 24 Adjudge and declare that the Corps may not consider the investment made in 25 Phase of the SEC by RTC before obtaining Section 404 permit in its subsequent analysis of 26 reasonable alternatives to the SEC 27 Issue preliminary injunction to enjoin the RTC its agents employees and servants and all persons agencies commissions and boards acting under or in concert with or 14

15 for them from engaging in ny physical construction activities associated with the SEC unless and until the Corps has issued Section 404 permit in compliance with the CWA NEPA and other federal laws Order RTC to pay civil penalties for each violation of the CWA occurring on or after February in an appropriate amount as provided by Sections 309d and 505a of the CWA 33 U.S.C 19d and 65a and the Adjustment of Civil Monetary Penalties for Inflation 40 C.F.R Part 19 Award Plaintiff its reasonable attorneys fees costs of suit and disbursements Award such other and further relief as the Court deems proper 10 Retain jurisdiction over this matter until such time as Defendants have come into 11 compliance with the requirements of the CWA NEPA and the ESA and fully complied with any remedial orders of this Court 14 Respectfully submitted DATED July 20 SHUTE WINTER JOSEPH KING PETTA 19 Attorneys for Upper South East Communities DATED July.ff 20 Coalition / By Attorneys for Upper South East Communities Coalition