Army Corps Provides Un-Sound Reasoning in Washington State
Coal. to Protect Puget SoundHabitat v. United States Army Corps. of Eng'rs, 2019 U.S. Dist. LEXIS177209 (W.D. Wash. Oct. 10, 2019).
By: Spring Gaines
Thismatter out of the Western District of Washington concerned a permitadministered by the United States Army Corps of Engineers (“Corps”). NationwidePermit 48 (“NWP 48”) authorized structures, and certain works (i.e buoys,floats, racks, trays, nets, lines, tubes, and containers) in a Water of theUnited States (“WOTUS”) in relation to commercial shellfish aquaculture activities.NWP 48 also authorized discharges of dredged or fill material into a WOTUS forpurposes of shellfish seeding, rearing, cultivating, transplanting, andharvesting.
Here, the parties andintervenors requested cross-motions for summaryjudgement. The Plaintiffs, Coalition to Protect Puget Sound, argued that the Corpsfailed to follow guidelines provided by the Clean Water Act("CWA"), the National Environmental PolicyAct ("NEPA"), and the Endangered Species Act("ESA") when it reissued NWP 48 in 2017 and that theprovided conclusion by the Corps on the environmental impacts to Puget Sound wasinvalid under the APA.
The Army Corps determined that the reissuance of NWP 48 in 2017would have minimal individual and cumulative adverse impacts on the aquaticenvironment of Puget Sound. However, the Environmental Assessment provided didnot accurately describe why the impacts were minimal. Under the APA, a reviewingcourt must consider if the agency’s conclusion was "arbitrary, capricious,an abuse of discretion, [] otherwise not in accordance with law" or"without observance of procedure required by law."[1] This arbitrary andcapricious standard is applied if an "agency [relied] on factorswhich Congress has not intended it to consider, entirely failed to consider animportant aspect of the problem, offered an explanation for its decision thatruns counter to the evidence before the agency, or is so implausible that itcould not be ascribed to a difference in view or the product of agencyexpertise."[2] While the courtwill not substitute its own judgment and will defer to an agency, the agency’sdecision must be based on reasonable, relevant fact. [3]
The CWA authorizes the Corps to issuenationwide permits for the discharge of dredged or fill material into a WOTUSif the activities "are similar in nature, will cause only minimal adverseenvironmental effects when performed separately, and will have only minimalcumulative adverse effect on the environment.”[4] However, in the case of NWP48, the Army Corps opted for a broad determination that addressed allcommercial shellfish activities under this single permit. There is disparitybetween operations in varying ecosystems; so, it is almost impossible to assessall individual and cumulative impacts. The Corps acknowledged this and tried toavoid examinations of all individual projects by placing the burden on districtengineers. The Western District of Washington found that when the Corpsauthorized NWP 48, it failed to consider the impacts of commercialshellfish aquaculture activities in Puget Sound. The conclusion that theimpacts would be minimal was unsupported by evidence, and the EnvironmentalAssessment did not satisfy NEPA requirements. The issuance of NWP 48 wasarbitrary and capricious and not in accordance with NEPA nor the CWA. The courtgranted plaintiffs' motions for summary judgment, denied the defendant's andintervenors' cross-motions, and held NWP 48 unlawful in the State ofWashington.
[1] 5 U.S.C. § 706(2)(A) and (D) (2018).
[2] Motor VehicleMfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,43 (1983).
[3] San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 601 (9th Cir. 2014).
[4] CWA §404(e)(1) (2018).
