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UNITED STATES DISTRIT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

HOOSIER ENVIRONMENTAL COUNCIL and CITIZENS FOR APPROPRIATE RURAL ROADS,

) ) ) ) Plaintiffs, ) ) vs. ) ) UNITED STATES ARMY CORPS OF ) ENGINEERS; LT. GEN. THOMAS P. BOSTICK, ) Commanding General and Chief Engineer, ) United States Army Corps of Engineers, and ) COL. LUKE T. LEONARD, Commander and ) District Engineer, United States Army Corps ) of Engineers, Louisville Division, ) ) Defendants. )

CAUSE NO. 1:13-CV-317

COMPLAINT FOR PERMANENT DECLARATORY AND INJUNCTIVE RELIEF Plaintiffs Hoosier Environmental Council (HEC) and Citizens for Appropriate Rural Roads (CARR) (collectively Plaintiffs), by counsel, for their Complaint for Permanent Declaratory and Injunctive Relief (Complaint) against Defendants United States Army Corps of Engineers , Lieutenant General Thomas P. Bostick, Commanding General and Chief Engineer, United States Army Corps of Engineers, and Col. Luke T. Leonard, Commander and District Engineer, United States Army Corps of Engineers, Louisville Division (collectively Defendants or the Corps) state as follows: INTRODUCTION 1. This is an action for declaratory and injunctive relief against Defendants

regarding their actions, and failure to act, related to the planning, permitting and construction of section four (Section 4) of the Interstate 69 highway project between Evansville and 1

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Indianapolis, Indiana (I-69 Project or Project). More specifically, Plaintiffs seek declaratory and injunctive relief for Defendants failure to comply with Section 404 of the Clean Water Act, 33 U.S.C. 1344 (Section 404), and regulations thereunder, the National Environmental Policy Act, 42 U.S.C. 4321 et seq., the Administrative Procedure Act, 5 U.S.C. 553-559 and 701-706, and applicable regulations in connection with issuing a permit pursuant to Section 404 to discharge approximately 224,369 cubic yards of fill material into wetlands and streams in Greene and Monroe Counties, Indiana. 2. The proposed I-69 Project between Indianapolis and Evansville is divided into six

subsections. However, the entire Project would be approximately 142 miles long, would cost over $3 billion and would, through direct and indirect impacts, destroy over 7,000 acres of land, including approximately 4,319 acres of farmland, approximately 1,985 acres of forestland and many acres of wetlands. Hundreds of karst features (caves, sinkholes, underground streams) will be damaged or disturbed along with the hydraulically connected features and potentially unknown features. 3. Construction of the entire I-69 Project will adversely affect Southwest Indianas

aquatic ecosystem. 4. Section 4 of the Project, which runs from Crane Naval Surface Warfare Center to

Bloomington, Indiana is approximately 26 miles in length and extends through Greene and Monroe counties, Indiana. This section of the Project is expected to cost at least $532 million and possibly as much as $600 million. 5. Construction of Section 4 of the Project will include 18 crossings of waters of the

United States, impacting more than 88,462 linear feet of stream and filling more than 9.42 acres

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of wetlands. Construction of Section 4 will adversely affect the aquatic ecosystem in Greene and Monroe counties. 6. In an action on October 1, 2012, the Defendant U.S. Army Corps of Engineers,

Louisville District approved the issuance of a permit under Section 404 (the Permit) to discharge 34,154 cubic yards of fill material below the Ordinary Highway Water Mark of 88,462 linear feet of various streams, tributaries and other waters of the United States and to discharge 190,215 cubic yards into 9.42 acres of open water and emergent, scrub-shrub, and forested wetlands. 7. Defendants failed to comply with Section 404 of the Clean Water Act (CWA)

and the National Environmental Policy Act (NEPA) because they approved the Permit for Section 4 notwithstanding the existence of practicable alternatives to the proposed discharges that would have less adverse impacts on the aquatic ecosystem. Defendants also improperly conducted the public interest review, failed to consider the Projects cumulative environmental impacts, failed to define correctly the basic and overall Project purpose, failed to define correctly the scope of analysis, failed to apply the chosen scope of analysis consistently, failed to hold a public hearing, failed to require sufficient mitigation measures for Section 4 to protect wetlands, karst and the aquatic ecosystem and otherwise failed to comply with the CWA and NEPA for the reasons set forth in this Complaint. 8. If Defendants actions are not enjoined and the Permit vacated, construction and

other activities authorized by the Permit will cause irreparable harm to the regions aquatic ecosystem, natural resources and environmental quality, as well as to the Plaintiff organizations, their members and the public in the manner described herein, in violation of federal law and

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contrary to the public interest. Plaintiffs seek declaratory and injunctive relief, and their attorneys fees and costs. THE PARTIES 9. Plaintiffs are organizations with members who live and recreate in or near the

corridor of the proposed I-69 Project (including in or near the Projects Section 4 corridor). 10. Plaintiff Hoosier Environmental Council is an Indiana not-for-profit corporation

with a mission of protecting and, where necessary, restoring Indianas natural ecosystems upon which life depends. HEC and its members recognize that a healthy environment is necessary for a strong sustainable economy in Indiana. Approximately 1,000 families throughout Indiana are members of HEC, representing nearly 2,000 state residents. HECs members use and enjoy the land and natural areas that would be directly affected and degraded by the proposed I-69 Project. They also reside in areas that would be substantially transformed from their present rural and pastoral character into divided communities and unhealthy environments as a result of the I-69 Project. HEC members specifically reside in or near the corridor for Section 4 of the Project. The Defendants action in issuing the Permit and their other related acts and omissions as set forth in this Complaint will irreparably harm HEC and its members, and construction and operation of the highway will significantly impair such members use and enjoyment of the land and resources affected by the Project. 11. HEC and its members participated in and commented in administrative

proceedings concerning the violations of federal laws here at issue. 12. Plaintiff Citizens for Appropriate Rural Roads is an Indiana not-for-profit

corporation whose mission is to protect the integrity of Southwestern Indianas farmlands, forestlands and rural communities by supporting fiscally conservative and environmentally

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sound transportation policies. CARR supports transportation solutions that focus on upgrading and repairing existing roads and bridges, and CARR is opposed to new highway proposals that destroy farmland, forestland, wetlands, wildlife habitat and other natural resources. CARRs members own, use and enjoy the land and natural resources that would be directly affected by the Project. CARR members reside in areas where the water and air quality would be harmed as a result of construction of the Project, and CARR members specifically reside in or near the Section 4 corridor. The Defendants action in issuing the Permit and their other related actions and omissions as set forth in this Complaint will irreparably harm CARR and its members, and construction and operation of the highway will significantly impair such members use and enjoyment of the land and resources affected by the highway. 13. CARR and its members participated in and commented on administrative

proceedings concerning the violations of federal laws here at issue. 14. Defendant United States Army Corps of Engineers (Corps) is an executive

department of the United States Government. Its duties include ensuring the administration of the navigable waterways of the United States and ruling on applications for permits under Section 404 of the Clean Water Act. 15. Defendant Lieutenant General Thomas P. Bostick is the Commanding General

and Chief Engineer of the Corps. Lieutenant General Bostick oversees the activities of the Corps and its district offices, including the Louisville District. Lieutenant General Bostick is sued in his official capacity. 16. Defendant Col. Luke T. Leonard is the District Engineer for the Louisville

District of the Corps, and directs, manages, and supervises the activities of the staff and the operation of the field offices. Col. Leonard is sued in his official capacity.

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JURISDICTION AND VENUE 17. The Court has jurisdiction pursuant to 28 U.S.C. 1331 and 2201, as this action

presents a case and controversy under the Clean Water Act, 33 U.S.C. 1344, the National Environmental Policy Act, 42 U.S.C. 4321 et seq., and the Administrative Procedure Act, 5 U.S.C. 553-559 and 701-706. 18. Jurisdiction is also conferred upon this Court to grant declaratory relief and

additional relief as authorized by 28 U.S.C. 2201 and 2202. 19. Venue is proper in this Court pursuant to 28 U.S.C. 1391 (b) and (e)(2),

because the proposed I-69 Project at issue, including Section 4, lies entirely within the Southern District of Indiana, and because all of the Plaintiffs are located within the Southern District. The Defendants do business in the Southern District and approved the actions described herein. Furthermore, a substantial portion of the events or omissions giving rise to the claims stated herein occurred in the Southern District. 20. Plaintiffs have no adequate remedy at law. Unless this Court grants the requested

relief, the Permit erroneously issued by Defendants will cause irreparable harm to the environment, to Plaintiffs and their members interests, and to the public in violation of federal law and contrary to the public interest. No monetary damages or other legal remedy could adequately compensate Plaintiffs, their members or the public for these harms. 21. Plaintiffs and their members are persons adversely affected or aggrieved by

federal agency action within the meaning of Section 702 of the federal Administrative Procedure Act, 5 U.S.C. 702. 22. On November 15, 2012, pursuant to 23 U.S.C. 139(l)(1), the Federal Highway

Administration (FHWA) published a notice in the Federal Register stating that any claim

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seeking judicial review of final actions by the Corps, FHWA, and the U.S. Fish and Wildlife Service relating to Section 4 of the Project would be barred unless the claim was filed on or before April 14, 2013, which time has not passed. Therefore, this Complaint is not time-barred under 23 U.S.C. 139(l)(1). APPLICABLE LAW Section 404 of the Clean Water Act (Section 404), 33 U.S.C. 1344 23. In 1972 Congress passed the Clean Water Act (CWA) to restore and maintain

the chemical, physical, and biological integrity of the Nations waters. 33 U.S.C. 1251(a). To achieve this objective, Section 301 of the CWA prohibits the discharge of any pollutant into navigable waters except in accordance with water quality standards promulgated and permits issued under other sections of the CWA. 33 U.S.C. 1311(a). Pollutants include dredged spoil, rock and sand, among other materials. 33 U.S.C. 1362(6). 24. Section 404 of the CWA authorizes the Secretary of the Army to issue permits for

the discharge of dredged or fill material into navigable waters, including wetlands, when certain conditions are met. 33 U.S.C. 1344. The Section 404 permitting program is administered by the Corps, subject to its own rules and rules promulgated by the U.S. Environmental Protection Agency (EPA or U.S. EPA). 33 C.F.R. 320.2(f). Activities in waters of the United States regulated under this program include fill for highway construction. 25. In reviewing a Section 404 permit application, the Corps also must follow the

EPA Section 404(b)(1) Guidelines (Section 404 Guidelines or Guidelines), which are enforceable federal rules. The Guidelines are intended to restore and maintain the chemical, physical, and biological integrity of waters of the United States. 40 C.F.R. 230.1(a).

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26.

Congress defined navigable waters to include all waters of the United States,

including the territorial seas. 33 U.S.C. 1362(7). 27. 28. The term waters of the United States includes wetlands. 40 C.F.R. 232.2. The Corps, in administering Section 404 of the CWA, conducts a public interest

review based on an evaluation of the probable impacts, including cumulative impacts, of the proposed activity and its intended use on the public interest. Evaluation requires a careful weighing of all those factors which become relevant in each particular case. The benefits which reasonably may be expected to accrue from the proposal must be balanced against its reasonably foreseeable detriments. 33 C.F.R. 320.4(a)(1). All factors which may be relevant to the proposal must be considered including the cumulative effects thereof: among those are conservation, economics, aesthetics, general environmental concerns, wetlands, historic properties, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shore erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, mineral needs, considerations of property ownership and, in general, the needs and welfare of the people. For activities involving 404 discharges, a permit will be denied if the discharge that would be authorized by such a permit would not comply with the Environmental Protection Agencys 404(b)(1) guidelines. Id. 29. In its own rules, the Corps has determined that most wetlands constitute a

productive and valuable resource, the unnecessary alteration or destruction of which should be discouraged as contrary to the public interest. 33 C.F.R. 320.4(b)(1). Furthermore, [a]lthough a particular alteration of a wetland may constitute a minor change, the cumulative effect of numerous piecemeal changes can result in a major impairment of wetland resources. Thus, the particular wetland site for which an application is made will be evaluated with the

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recognition that it may be a part of a complete and interrelated wetland area. 33 C.F.R. 320.4(b)(3). 30. The Section 404 Guidelines state: Fundamental to these Guidelines is the precept

that dredged or fill material should not be discharged into the aquatic ecosystem unless it can be demonstrated that such a discharge will not have an unacceptable adverse impact either individually or in combination with known and/or probable impacts of other activities affecting the ecosystem of concern From a national perspective, the degradation or destruction of special aquatic sites, such as filling operations in wetlands, is considered to be among the most severe environmental impacts covered by these Guidelines. The guiding principle should be that degradation or destruction of special sites may represent an irreversible loss of valuable aquatic resources. 40 C.F.R. 230.1 (c-d). Under the Guidelines, EPA identifies wetlands as special aquatic sites that are generally recognized as significantly influencing or positively contributing to the general overall environmental health or vitality of the entire ecosystem of a region. 40 C.F.R. 230.3 (q-1). 31. requirements: (i) There is a practicable alternative to the proposed discharge that would have less adverse effect on the aquatic ecosystem, so long as such alternative does not have other significant adverse environmental consequences; or The proposed discharge will result in significant degradation of the aquatic ecosystem . . . ; or The proposed discharge does not include all appropriate and practicable measures to minimize potential harm to the aquatic ecosystem; or There does not exist sufficient information to make a reasonable judgment as to whether the proposed discharge will comply with these Guidelines. The Corps is prohibited from issuing any Section 404 permit if, among other

(ii)

(iii)

(iv)

40 C.F.R. 230.12(a)(3). 9

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32.

Practicable alternatives include but are not limited to: activities that do not

involve a discharge of dredged or fill material into the waters of the United States [or] discharge of dredged or fill material at other locations into the waters of the United States. 40 C.F.R. 230.10(a)(1)(i), (ii). An alternative to discharge to a wetland is practicable if it is available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes. 40 C.F.R. 230.10(a)(2). 33. Where a discharge is proposed for a wetland or other special aquatic site, all

practicable alternatives to the proposed discharge that do not involve a discharge to the wetland are presumed to have less adverse impact on the aquatic ecosystem, unless clearly demonstrated otherwise. 40 C.F.R. 230.10(a)(3). 34. The Corps must examine practicable alternatives. 40 C.F.R. 230.5(c),

230.10(a); 33 C.F.R. 320.4(a)(2)(ii), and 40 C.F.R. 1508.9(b). The Corps determines the project purpose, the extent of the alternatives analysis, [the] determination of which alternatives are practicable, the least environmentally damaging practicable alternative, the amount and type of mitigation that is to be required, and all other aspects of the decision making process. Standard Operating Procedures for the U.S. Army Corps of Engineers Regulatory Program, July 2009 (hereinafter referred to as Corps SOP), pg. 17. 35. In determining the effects of each proposed discharge requested under a permit

the Corps must consider, among other things, the cumulative effects on the aquatic ecosystem. 40 C.F.R. 230.11(g). 36. An applicant for a discharge to a wetland connected with a non-water-dependent

activity must clearly demonstrate that there is no practicable alternative to the discharge that does

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not involve special aquatic sites or that any practicable alternative would have greater environmental impacts. 40 C.F.R. 230.10(a)(3). The National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq. 37. In issuing a Section 404 permit under the CWA, the Corps is also subject to

NEPA, which requires an environmental impact statement (EIS) for major Federal actions significantly affecting the quality of the human environment. 42 U.S.C. 4332. NEPA regulations also require an environmental assessment (EA), which should [b]riefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact. 40 C.F.R. 1501.4 and 1508.9. Each federal agency must adopt regulations to implement NEPA. 40 C.F.R. 1507.3. The Corps NEPA regulations are located at 33 C.F.R. Part 230 and 33 C.F.R. 325 App. B. Under the Corps regulations, most permits issued by the Corps only require an EA, not an EIS. 33 C.F.R. 230.7. 38. In making a decision on a permit within the Corps jurisdiction, the [d]istrict

engineer will generally combine the SOF [Statement of Findings], environmental assessment, and findings of no significant impact (FONSI), 404(B)(1) guideline analysisinto a single document. 33 C.F.R. 325.2(6); 33 C.F.R. 325 App. B, Paragraph 7. Therefore, the Corps Memorandum for Record issued in support of the Section 4 Permit is a NEPA document. 39. In order to evaluate a permit application, the Corps must determine the projects

overall and basic purpose and whether the activity is water-dependent. 40 C.F.R. 230.10(a)(2) and (3); 33 C.F.R. 325 App. B, Paragraph 7; Corps SOP, pg. 15. The basic project purpose enables the Corps to determine if the activity is water-dependent, and the overall project purpose is used to identify and evaluate practicable alternatives. 33 C.F.R. 325 App. B, Paragraph 7; Corps SOP, pg. 15. 11

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40.

Where the specific activity requiring a permit is one component of a larger

project, and the additional portions of the project are products of federal financing, assistance, regulation, direction and control such that there is federal control and responsibility for the larger project, the scope of analysis for the EA should include the entire project, including those areas that may be outside the Corps jurisdiction. 33 C.F.R. 325 App. B(7)(b). For those activities that require a DA [Department of Army] permit for a major portion of a transportationproject, so that the Corps permit bears upon the origin and destination as well as the route of the project outside the Corps regulatory boundaries, the scope of analysis should include those portions of the project outside the boundaries of the Corps section404 regulatory jurisdiction. Id. 41. Once the scope of analysis has been defined, the NEPA analysis for that action

should include direct, indirect and cumulative impacts on Federal interests within the purview of the NEPA statute. Id. Furthermore, [i]n all cases, the scope of analysis used for analyzing both impacts and alternatives should be the same scope of analysis used for analyzing the benefits of a proposal. 33 C.F.R. 325 App. B(7)(b)(3). 42. Where the proposed activity is not water-dependent and the district engineer

determines there are unresolved conflicts concerning alternative uses of available resources, the EA shall include a discussion of the reasonable alternatives which are to be considered. 33 C.F.R. 325 App. B(7)(a). Reasonable alternatives must be those that are feasible and such feasibility must focus on the accomplishment of the underlying purpose and need of the applicant (or public) that would be satisfied by the proposed Federal action (permit issuance). The alternatives analysis should be thorough enough to use for both the public interest review and the 404(b)(1) guidelines (40 CFR part 230) where applicable. 33 C.F.R. 325 App. B(9)(b)(5).

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43.

The Corps NEPA rules also address the level of the Corps review of a permit

application and need for independent decision-making. For example, although division and district engineers are authorized to develop joint procedures with states and other federal agencies, the applicants rights to a full public interest review and independent decision by the district or division engineer must be strictly observed. 33 C.F.R. 325.3(e)(3). Further, while generally focusing on the applicants statement, the Corps, will in all cases, exercise independent judgment in defining the purpose and need for the project from both the applicants and the publics perspective. 33 C.F.R. 325 App. B(9)(b)(4). The Administrative Procedure Act (APA), 5 U.S.C. 551 et. seq. 44. The APA provides for judicial review of agency actions, such as those at issue

here. A reviewing court shall hold unlawful and set aside agency actions, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. 706(2)(A). PROCEDURAL HISTORY The Federal Highway Administrations Tier I and Tier II Environmental Impact Statements for the I-69 Project 45. The FHWA conducted a tiered NEPA review process for the proposed I-69

Evansville to Indianapolis extension, involving two levels of review referred to as Tier I EIS and Tier II EIS. 46. As part of the Tier I EIS, FHWA evaluated whether or not to build the proposed I-

69 extension and alternative corridors for the Project. On March 24, 2004, the FHWA issued a Record of Decision approving the Indiana Department of Transportations (INDOT) Tier I Final EIS. The Final Tier I EIS identified a 2,000 foot-wide corridor for the proposed new I-69

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Highway (the Alternative 3C corridor) and rejected alternative routes such as the US-41/I-70 Upgrade Alternative. 47. FHWA then conducted a Tier II EIS evaluation for each section of the I-69

Project to review alternative alignments within each section, including Section 4. On July 13, 2011, the FHWA issued its Tier II Final EIS for Section 4. Then on September 8, 2011, FWHA issued a Record of Decision approving final alignments within Section 4 (Refined Preferred Alternative 2 for Section 4), including locations of the interchanges, grade separations, and access roads. The Section 404 Permit for Section 4 48. On September 22, 2011, INDOT applied to the Corps for authorization under

Section 404 to dredge and fill streams and wetlands in conjunction with construction of Section 4 of the I-69 Project. 49. On November 12, 2011, the Corps issued a public notice stating that INDOT had

applied for a Section 404 permit, and that, among other things, the Corps evaluation would include application of the Section 404 Guidelines. 50. The Corps established a public comment period for the draft permit. Plaintiffs

and other members of the public submitted extensive public comments. 51. Among other things, Plaintiffs and other members of the public urged the Corps

to deny the permit application on the basis that, pursuant to Section 404: (1) less damaging practicable alternatives existed for the I-69 Project, including by way of example the U.S. 41/I70 corridor that INDOT had considered but rejected in the Tier I EIS study process for the I-69 Project, (2) that less damaging practicable alternatives existed for the Section 4 route

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individually; and (3) that mitigation measures in the draft permit were inadequate to protect the aquatic resources, including but not limited to wetlands and karst features. 52. The Plaintiffs also requested a public hearing on the proposed permit for Section

4, which the Corps denied. 53. On January 25, 2012, U.S. EPA sent a comment letter to the Corps in which EPA

cited numerous deficiencies in the draft permit and concluded the project as currently proposed is not in compliance with 404(b)(1) Guidelines.The compensatory mitigation plan, as proposed, is inadequate to compensate for the substantial environmental impacts associated with the project. 54. On October 1, 2012, the Corps issued the Permit, number LRL-2011-0041-djd,

authorizing INDOT to construct Section 4 of the I-69 Project. 55. The Permit specifically authorized INDOT to discharge 34,154 cubic yards of fill

material below the Ordinary Highway Water Mark of 88,462 linear feet of streams, tributaries and other waters of the United States, and to discharge 190,215 cubic yards of fill material into 9.42 acres of open water and emergent, scrub-shrub, and forested wetlands. 56. The Corps included a Memorandum for Record with the Permit, which stated

that it constitutes the Environmental Assessment, 404(b)(1) Guidelines Evaluation, Public Interest Review, and Statement of Findings. Among other things, the Corps stated in the Memorandum for Record that the proposed project is the least environmentally damaging practicable alternative (LEPDA) based on the Corps review of the analysis of alternatives in the FHWAs Tier I and Tier II EIS reviews for the I-69 Project prepared pursuant to NEPA, 42 U.S.C. 4321 et seq., the NEPA regulations, 40 C.F.R. Part 1500 and the FWHAs NEPA regulations, 23 C.F.R. Part 771. (Memorandum of Record, pg. 22).

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57.

The Tier I EIS review considered 12 alternative corridors and the no build

alternative for the I-69 Project, and then identified a preferred alternative corridor. The Tier II EIS review considered alternative alignments, including the no build alignment, within six sections of the approved corridor, one of which was Section 4. 58. The Tier I and Tier II EIS reviews did not proceed under nor conform to the

Section 404 Guidelines. 59. The Corps Memorandum for Record briefly summarized INDOTs and FHWAs

review that led to the selection of the preferred corridor in Tier I and the preferred alignment for Section 4 in Tier II. The Tier I EIS included INDOTs and FHWAs Section 404(b)(1) LEPDA Consistency Analysis. However, the Corps did not prepare its own analysis for Tier I or for the Section 4 Permit, nor did INDOT, FHWA or the Corps prepare Consistency Analyses for any of the Tier II EIS documents. 60. In the Memorandum for Record the Corps defined the basic project purpose as to

construct stream and wetland crossings on Section 4 of the proposed Evansville to Indianapolis extension of Interstate 69 and that the proposed project was water-dependent, in spite of the fact that it is one section of the I-69 Project. 61. In the Memorandum for Record the Corps defined the overall project purpose as

to construct 18 stream crossings to facilitate construction of Section 4 of the proposed Evansville to Indianapolis extension of Interstate 69. The National Interstate 69 Project is needed to facilitate interstate and international movement of freight through the Interstate 69 corridor. The construction of Section 4 would advance the overall goals of the Interstate 69 project, increase personal accessibility for area residents, reduce congestion, improve traffic safety, and support local economic development initiatives.

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62.

In the Memorandum for Record the Corp determined the scope of analysis to be

within the footprint of the regulated activity within the delineated water and the affected upland area. 63. The Corps evaluated the benefits of the entire I-69 Project against the detriments

of only Section 4 in the evaluations of the impacts, benefits and alternatives of the Section 4 proposal. 64. The Corps conducted the public interest review improperly and did not adequately

examine the Projects cumulative impacts. 65. The wetlands and streams in Section 4 are part of the same watersheds that are

impacted by other sections of the I-69 Project, particularly, Sections 2, 3 and 5. The Corps did not evaluate the cumulative impacts of those fills on the relevant watersheds as required by law. 66. As part of its review of the Section 4 Permit, the Corps did not evaluate the

practicable alternatives available for construction of the I-69 Project corridor or the practicable alternatives to the proposed alignments and interchange locations within Section 4 in accordance with and as required by the Section 404 Guidelines. 67. The Permit also includes Special Conditions that require, among other conditions,

compliance with a Mitigation and Monitoring Plan and Karst Agreement to mitigate impacts on wetlands and on karst features. However, the Special Conditions fail to include all appropriate and practicable measures to minimize potential harm to the aquatic ecosystem. 68. As part of the public interest review, the Corps considered general environmental

concerns as required by 33 C.F.R. 320.4(a)(1), including air quality impacts of the project. Among those impacts considered, the Corps noted that the Federal Highway Administration performed an air quality analysis for ozone, known as a conformity demonstration, to

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determine whether Section 4 would impact the states ability to maintain compliance with the 8hour National Ambient Air Quality Standard for ozone. The Corps did not conduct an analysis to independently verify or confirm the findings in the conformity demonstration. CLAIMS FOR RELIEF Count I Violations of the Clean Water Act 69. herein. 70. In issuing a Permit under Section 404 of the CWA for Section 4, the Defendants Plaintiffs incorporate by reference paragraphs 1 68 above as if fully set forth

failed to comply with Section 404 of the CWA, the Section 404(b)(1) Guidelines, and the Corps rules in several ways, including but not limited to: a) Failing to consider practicable alternatives for the Evansville to Indianapolis I-69 project; b) Failing to consider practicable alternatives for the alignments and interchange locations within Section 4; c) d) e) f) Failing to properly define the basic and overall project purposes; Failing to properly define the scope of analysis; Using an inconsistent scope of analysis; Improperly accepting and using INDOT/FHWAs consistency analysis to identify the LEDPA for the Project; g) Improperly performing a public interest review of the Project, including but not limited to failing to adequately consider the Projects cumulative impacts both in relation to the entire I-69 Project and within Section 4;

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h)

Improperly applying the balancing test used in the public interest review by considering the benefits of the I-69 Project in favor of the Permit while failing to consider the entire damage to the human environment and other elements of the public interest that will occur as a result of construction of the I-69 Project;

i)

Failing to exercise independent judgment in the public interest review, thereby accepting the conformity demonstration for the 8-hour ozone National Ambient Air Quality Standard, and improperly concluding that air quality would not be impacted by the Project;

j) k)

Failing to hold a public hearing despite Plaintiffs requests; and Failing to require sufficient mitigation measures for Section 4 to protect wetlands, karst and the aquatic ecosystem.

71.

For the reasons stated above, the approval of the permit for Section 4 of the I-69

Project by the Corps failed to meet CWA statutory and procedural requirements, was arbitrary, capricious, an abuse of discretion and otherwise not in accordance with the law. Count II Violations of NEPA 72. herein. 73. In issuing the Section 4 Permit under Section 404 of the CWA, the Defendants Plaintiffs incorporate by reference paragraphs 1 71 above as if fully set forth

failed to comply with the NEPA regulations in several ways, including, but not limited to: a) Failing to exercise independent judgment in defining the purpose and need for the Project; b) Failing to properly define the scope of analysis;

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c) d)

Using an inconsistent scope of analysis; Failing to conduct a reasonable alternatives analysis sufficient to satisfy the Section 404 Guidelines; and

e)

Failing to adequately consider the Projects direct, indirect and cumulative impacts, both in relation to the entire I-69 Project and within Section 4.

74.

For the reasons stated above, the approval of the Permit for Section 4 of the I-69

project by the Corps failed to meet NEPA statutory and procedural requirements, was arbitrary, capricious, an abuse of discretion and otherwise not in accordance with the law.

Prayer for Relief WHEREFORE, Plaintiffs respectfully request that the Court enter judgment in favor of Plaintiffs and against Defendants as follows: 1. A declaration that the Defendants violated Section 404 of the Clean Water Act and the National Environmental Policy Act by failing to properly conduct the public interest review, failing to consider practicable alternatives, failing to consider alternative alignments, failing to consider cumulative impacts, failing to include sufficient mitigating measures and for other reasons; 2. An order vacating, setting aside, and rescinding the October 1, 2012 Permit for Section 4 of the I-69 Project; 3. A permanent injunction enjoining the Defendants, their officers, agents, servants, attorneys, contractors and any persons in active concert or participation with them who receive actual notice of the injunction from constructing the wetland and stream crossings in Section 4 unless and until the Defendants fully comply with the requirements of

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Case 1:13-cv-00317-JMS-DML Document 1 Filed 02/26/13 Page 21 of 21 PageID #: 21

Section 404 of the Clean Water Act, and regulations and Guidelines promulgated thereunder, and the Administrative Procedure Act; 4. A permanent injunction requiring the Corps to have any fill material removed from the wetlands and streams in Section 4 and to have the wetlands and streams restored to their natural condition and otherwise requiring mitigation for any impacts to wetlands and streams that has already occurred; 5. An award to Plaintiffs of their reasonable attorneys fees, costs and expenses incurred in connection with this action, as provided for under the Equal Access to Justice Act, 28 U.S.C. 2412(d), and other applicable law; and 6. Award Plaintiffs all further relief that is just and proper and in the public interest.

Respectfully submitted, /s/ Allison Wells Gritton____________________ Spalding & Hilmes, PC Rosemary G. Spalding Allison Wells Gritton Attorneys for Plaintiffs Hoosier Environmental Council and Citizens for Appropriate Rural Roads SPALDING & HILMES, PC 330 South Downey Avenue Indianapolis, Indiana 46219 rgspalding@spaldinglaw.net awgritton@spaldinglaw.net (317) 375-1140

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