Waterford Citizens' Ass'n v. Reilly

Citations: 970 F.2d 1287; 1992 WL 130485Docket: No. 91-2142

Court: Court of Appeals for the Fourth Circuit; June 15, 1992; Federal Appellate Court

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

The Waterford Citizens’ Association filed a declaratory judgment action against the Environmental Protection Agency (EPA), asserting that the EPA must reinstate procedures under section 106 of the National Historic Preservation Act (NHPA) prior to expanding an existing sewage system. The district court dismissed the suit, ruling that the decision fell within the EPA's discretion. The appellate court affirmed this judgment but based its decision on different reasoning.

Waterford, a village in Loudoun County, Virginia, is historically significant, having been listed on the National Register of Historic Places due to its well-preserved character since the early 1800s. The Loudoun County Sanitation Authority constructed a sewage system in the 1970s, which required compliance with the NHPA because it was federally funded and impacted a historic site. Under section 106, federal agencies must allow the Advisory Council on Historic Preservation to comment on the effects of federal projects on historic sites. The EPA had previously engaged with the Advisory Council and Virginia's Historic Preservation Officer, leading to a Memorandum of Agreement to mitigate adverse effects identified during the sewer system's initial planning.

The litigation arose from a developer's request in 1990 to connect a new townhouse development outside Waterford to the village's sewer system. Although the existing treatment plant had unused capacity and the proposed hookup would not require plant expansion, it necessitated additional sewer lines. The Sanitation Authority, without seeking additional EPA funding or consulting the Historic Preservation Officer, planned to proceed with the hookup. Both the Advisory Council and the Historic Preservation Officer viewed this as a revision of the sewer system's final plan, triggering the EPA’s obligations under the agreement. When the EPA refused to comply, the Citizens’ Association sought a declaratory judgment to enforce adherence to section 106 of the NHPA.

The EPA moved to dismiss a complaint from the Citizens’ Association, arguing that the Association lacked standing and that the complaint failed to state a claim since the EPA was not mandated to enforce the Memorandum of Agreement. The court allowed the Association to amend its complaint to include allegations of standing. Ultimately, the court granted the EPA’s motion to dismiss under Rule 12(b)(6), determining that the EPA's decision fell within its prosecutorial discretion, thus the Association could not compel action regarding the agreement. 

Despite the court's dismissal, the Association demonstrated standing by alleging a threatened injury traceable to the EPA’s actions, which could be remedied by the court. The Association also satisfied the criteria for organizational standing. However, the judgment of the district court was affirmed, emphasizing that the obligations imposed on federal agencies under section 106 of the National Historic Preservation Act are narrow. The statute mandates agencies to consider the effects of their actions on historic sites and to provide the Advisory Council an opportunity to comment, but does not create a primary duty for agencies to protect these sites. The statute is ambiguous regarding the resolution of disagreements between the Advisory Council and agencies, and the regulations clarify that the agency's obligations are limited, allowing for the consultation process to be terminated if parties cannot reach an agreement.

Congress did not intend for section 106 to impose general obligations on federal agencies to actively protect preservation interests. The Advisory Council's authority is limited to reviewing federal undertakings that affect sites on the national register, as outlined in legislative history. The primary purpose of section 106 is to ensure federal agencies do not conflict with historic preservation goals and to facilitate a meaningful review of federally assisted projects that impact historic properties. Legislative remarks underline the importance of cooperation and information exchange between government agencies regarding historic preservation efforts. 

Federal agencies must account for impacts on historically significant structures before providing funding, allowing the Advisory Council to comment on plans. Neither the statute nor its legislative history indicates that section 106 requires federal agencies to independently protect historic preservation interests; rather, it encourages dialogue and consultation with the Advisory Council. The Court of Appeals for the District of Columbia has affirmed that the provisions of the National Historic Preservation Act (NHPA) aim to prevent federal agencies from overlooking preservation values in their projects.

In this case, the EPA, Virginia’s Preservation Officer, and the Advisory Council engaged in the necessary consultation and entered into a Memorandum of Agreement (MOA). This MOA requires the EPA to reopen the section 106 process under certain conditions. The Citizens’ Association argues that the EPA must comply with the MOA even after the original project’s completion, claiming that the developer's application to add new sewer lines is subject to the agreement. While the EPA was bound by the MOA during the project, its obligations ended with the completion of the sewer system. The Citizens’ Association's request to enforce the agreement's obligations as satisfying the section 106 requirement for an “undertaking” is declined.

Federal licensing or funding is necessary for a statutory undertaking to exist. The EPA's obligations under the Memorandum of Agreement are insufficient to establish such an undertaking. The Citizens' Association claims an undertaking exists because the EPA retains the opportunity to exercise authority as per the agreement, referencing case law that indicates an undertaking arises when a federal agency has veto power or ongoing involvement in a project. However, the court concluded that the cited cases do not support the Citizens' Association's claims, as they pertain to continuous federal projects and compliance with section 106, not merely a Memorandum of Agreement. The EPA's obligations under the agreement were limited to the original sewer project, which has since concluded. Section 106 obligates federal agencies to consider the impact of federal undertakings on historic properties but does not extend responsibilities beyond the undertaking's term. The court affirmed the district court's judgment, allowing the Citizens' Association's suit against the EPA and others, while permitting the Loudoun County Sanitation Authority to intervene due to its interest in expanding the sewage system. The sewer system, funded by the EPA, was designed to address health hazards from existing septic systems and serves a population projected to grow to 557 by 2000, although the current population is only 350.

The excerpt outlines the obligations of the Environmental Protection Agency (EPA) regarding a Memorandum of Agreement (MOA) related to a project affecting historic properties. The EPA is not required to enter into an MOA, but once it does, it is bound by its terms for the duration of the project, as specified in 36 C.F.R. 800.6(c). The term "undertaking" refers to projects under federal jurisdiction that may impact historic properties, necessitating an assessment of negative effects as per 36 C.F.R. 800.5. If adverse effects are identified, participants can create a MOA to mitigate these effects. The MOA stipulates that the EPA must ensure the Loudoun County Sanitation Authority submits any revisions to the sewer project plans to the Virginia State Historic Preservation Officer (SHPO) for review. Should the SHPO determine that the final plans diverge significantly from the approved plans and could negatively impact the Waterford Historic District, they will notify both the Advisory Council on Historic Preservation and the EPA, prompting a reopening of Section 106 consultation under the National Historic Preservation Act of 1966. To aid the SHPO's review, the grantee must provide detailed plans and information regarding any potential impacts on the district's trees, walls, and sidewalks.