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Friends of Santa Clara River v. United States Army Corps of Engineers

United States Court of Appeals, Ninth Circuit

April 9, 2018

Friends of the Santa Clara River; Santa Clarita Organization for Planning the Environment, Plaintiffs-Appellants,
v.
United States Army Corps of Engineers; Kimberly Colloton, in her official capacity as Commander and District Engineer of the Los Angeles District of the U.S. Army Corps of Engineers, Defendants-Appellees, and The Newhall Land and Farming Company, a California limited partnership, Intervenor-Defendant-Appellee.

          Argued and Submitted February 10, 2017

          Submission Vacated June 23, 2017

          Resubmitted April 2, 2018 Pasadena, California

          Appeal from the United States District Court for the Central District of California D.C. No. 2:14-cv-01667-PSG-CW Philip S. Gutierrez, District Judge, Presiding

          John Buse (argued) and Aruna Prabhala, Center for Biological Diversity, Oakland, California; Dean Wallraff, Advocates for the Environment, Shadow Hills, California; for Plaintiffs-Appellants.

          Anna Katselas (argued), Lesley Lawrence-Hammer, Norman L. Rave, Devon Lehman McCune, Jennifer Scheller Neumann, and Andrew C. Mergen, Attorneys; Eric Grant, Deputy Assistant Attorney General; Jeffrey H. Wood, Acting Assistant Attorney General; Environment & Natural Resources Division, United States Department of Justice, Washington, D.C., for Defendants-Appellees.

          James F. Rusk (argued) and Robert J. Uram, Sheppard Mullin Richter & Hampton LLP, San Francisco, California; David P. Hubbard v. Mark J. Dillon, Gatzke Dillon & Ballance LLP, Carlsbad, California; Miriam A. Vogel, Morrison and Foerster LLP, Los Angeles, California; for Intervenor-Defendant-Appellee.

          Before: Andrew J. Kleinfeld, Sandra S. Ikuta, and Jacqueline H. Nguyen, Circuit Judges.

         SUMMARY[*]

         Environmental Law

         The panel affirmed the district court's summary judgment in favor of the U.S. Army Corps of Engineers and intervenor Newhall Land and Farming in an action challenging the Corps' issuance of a permit, pursuant to Section 404 of the Clean Water Act, to Newhall Land, authorizing the discharge of materials into the Santa Clara River as part of the Newhall Ranch project in Los Angeles County near Santa Clarita, California.

         After this case was argued on appeal, the Corps and Newhall Land settled with four of the six plaintiffs, and stipulated to their voluntary dismissal. The Corps acknowledged that the remaining plaintiffs, Santa Clarita Organization for Planning the Environment and Friends of the Santa Clara River, had standing to pursue their Clean Water Act claim. The panel held that the plaintiffs also had standing for their National Environmental Policy Act ("NEPA") and Endangered Species Act ("ESA") claims.

         The panel rejected challenges under the Clean Water Act to the Corp's permit issuance. The panel concluded that the Corps complied with its obligations under the Clean Water Act because the Corps properly considered practicability as required under the Section 404(b) Guidelines.

         The panel further concluded that the Corps complied with the ESA because its determination that Southern California steelhead would not be affected by the Project, and its corresponding decision not to consult with the National Marine Fisheries Service, were not arbitrary and capricious.

         For similar reasons, the panel concluded that the Corps reasonably assessed the Project's potential impacts to the steelhead and provided sufficient discussion to satisfy its NEPA obligations.

          OPINION

          IKUTA, Circuit Judge

         Under Section 404 of the Clean Water Act, 33 U.S.C. § 1344, the U.S. Army Corps of Engineers (Corps) may issue permits authorizing the discharge of dredged or fill material into the navigable waters of the United States. In this case, we consider challenges to the Corps's issuance of a Section 404 permit to Newhall Land and Farming (Newhall Land), authorizing the discharge of materials into the Santa Clara River as part of the Newhall Ranch project in northwestern Los Angeles County near Santa Clarita, California.

         The Santa Clarita Organization for Planning the Environment (SCOPE) and the Friends of the Santa Clara River (Friends)[1] challenge the permit issuance under the Clean Water Act (CWA), the National Environmental Policy Act (NEPA), and the Endangered Species Act (ESA).[2]We conclude that the Corps complied with the numerous requirements prescribed by each of these statutes, and we affirm.

         I

         We begin by reviewing the legal framework.

         A

         Under the CWA, the discharge of any pollutant (including dredged or fill material) to navigable waters is unlawful unless the discharge complies with various statutory requirements, including obtaining a permit issued by the Corps under Section 404 of the CWA, 33 U.S.C. § 1344 (a Section 404 Permit). 33 U.S.C. §§ 1311(a), 1362(6), (12); see also United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 123 (1985). Section 404 of the CWA authorizes the Corps to "issue permits, after notice and opportunity for public hearings[, ] for the discharge of dredged or fill material into the navigable waters at specified disposal sites." 33 U.S.C. § 1344(a); see also 33 C.F.R. § 325.2 (processing of applications). The term "navigable waters" means "the waters of the United States, including the territorial seas, " 33 U.S.C. § 1362(7), which is further defined by regulation to include wetlands, 33 C.F.R. § 328.3(a)(3) (2014).[3]

         When an applicant applies for a permit for a discharge to wetlands, the Corps evaluates whether to grant or deny the application under guidelines developed by the Environmental Protection Agency (EPA) in conjunction with the Secretary of the Army and published in 40 C.F.R. part 230. See 33 C.F.R. § 320.2(f); see also 33 U.S.C. § 1344(b). These regulations, referred to as the Section 404(b)(1) Guidelines, or simply the Guidelines, provide that "no discharge of dredged or fill material shall be permitted if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences" except as otherwise specified. 40 C.F.R. § 230.10(a). That is, the Corps must analyze alternatives to the proposed discharge and "select the least environmentally damaging practicable alternative." Bering Strait Citizens for Responsible Res. Dev. v. U.S. Army Corps of Eng'rs, 524 F.3d 938, 955 (9th Cir. 2008).

         The Guidelines further provide that "[a]n alternative 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). The term "practicable alternatives" includes "[a]ctivities which do not involve a discharge of dredged or fill material into the waters of the United States or ocean waters" and "[d]ischarges of dredged or fill material at other locations in waters of the United States or ocean waters." 40 C.F.R. § 230.10(a)(1).

         In order to determine whether an alternative is practicable, "the Corps must first determine the 'overall project purpose.'" Jones v. Nat'l Marine Fisheries Serv., 741 F.3d 989, 1002 (9th Cir. 2013) (quoting 40 C.F.R. § 230.10(a)(2)). In defining the overall project purpose, "the Corps has a duty to consider the applicant's purpose, " Sylvester v. U.S. Army Corps of Eng'rs, 882 F.2d 407, 409 (9th Cir. 1989), and "the objectives of the applicant's project, " id. (quoting La. Wildlife Fed'n, Inc. v. York, 761 F.2d 1044, 1048 (5th Cir. 1985) (per curiam)). "Indeed, it would be bizarre if the Corps were to ignore the purpose for which the applicant seeks a permit and to substitute a purpose it deems more suitable." Id. (quoting La. Wildlife Fed'n, 761 F.2d at 1048). The permit applicant may not define the project purpose narrowly "in order to preclude the existence of any alternative sites and thus make what is practicable appear impracticable." Id. But when the applicant's stated purpose is "genuine and legitimate, " the Corps may not reject it. Id.

         In determining the overall project purpose, the Corps will "normally accept decisions" by state, local, and tribal governments with respect to "zoning and land use matters, " unless "there are significant issues of overriding national importance." 33 C.F.R. § 320.4(j)(2). Likewise, when the Corps approves or undertakes projects requiring the discharge of material into the waters of the United States, it must consider "officially adopted state, regional, or local land use classifications, determinations, or policies." 33 C.F.R. § 336.1(c)(11)(ii).

         In analyzing "practicable alternatives, " the Corps must determine whether a project is "water dependent." A project that "does not require access or proximity to or siting within the special aquatic site in question to fulfill its basic purpose" is "not 'water dependent.'" 40 C.F.R. § 230.10(a)(3). A project's "basic purpose (for determining water dependency) is distinct from the overall purpose (for determining practicable alternatives)." Del. Riverkeeper Network v. U.S. Army Corps of Eng'rs, 869 F.3d 148, 157 (3d Cir. 2017) (emphasis omitted). When a project's basic purpose is not water dependent, "practicable alternatives that do not involve special aquatic sites are presumed to be available, unless clearly demonstrated otherwise." 40 C.F.R. § 230.10(a)(3). "[C]lassification of an activity as 'non-water dependent' does not serve as an automatic bar to issuance of a permit . . . [it] simply necessitates a more persuasive showing than otherwise concerning the lack of alternatives." Sylvester, 882 F.2d at 409 (quoting La. Wildlife Fed'n, Inc. v. York, 603 F.Supp. 518, 527 (W.D. La. 1984), aff'd in part and vacated in part, 761 F.2d 1044 (5th Cir. 1985)) (alterations in original). When the Corps recognizes that a project is not water dependent, considers a range of alternative sites for the project, and concludes that there are no practicable alternative sites available, the presumption is rebutted. Bering Strait Citizens, 524 F.3d at 947; see also Butte Envtl. Council v. U.S. Army Corps of Eng'rs, 620 F.3d 936, 945 (9th Cir. 2010) (holding that "the Corps applied the proper presumption and found that it had been rebutted" because "the Corps acknowledged that the proposed project was not water dependent" and reviewed "over a dozen alternative sites"). We then defer to the Corps's approval of an alternative. Bering Strait Citizens, 524 F.3d at 947.

         B

         Before issuing a permit allowing the discharge of dredge or fill materials into wetlands, the Corps must comply with NEPA, 42 U.S.C. §§ 4321-4370m-12; see 33 C.F.R. § 325.2(a)(4) and Appendix B. NEPA requires all federal agencies to consider the environmental impact of any "major Federal actions significantly affecting the quality of the human environment, " and provide a detailed statement on "the environmental impact of the proposed action, " "any adverse environmental effects which cannot be avoided should the proposal be implemented, " and any "alternatives to the proposed action." 42 U.S.C. § 4332(C).

         The Corps's procedures for implementing NEPA include directions for preparing an environmental impact statement (EIS) for a decision on a permit application. See 33 C.F.R. §§ 230.13, 325.2(a)(4). If the Corps is the lead agency, 33 C.F.R. § 230.16(a); 40 C.F.R. § 1501.5, it must address the purpose and need of the project and consider reasonable alternatives, among other requirements. 33 C.F.R. § 325 app. B (9)(b)(4), (5). Because "NEPA does not provide substantive protections, only procedural ones, " Conservation Cong. v. Finley, 774 F.3d 611, 615 (9th Cir. 2014), "our review is limited to whether the EIS contains 'a reasonably thorough discussion of the significant aspects of the probable environmental consequences, '" Nat. Res. Def. Council v. U.S. Dep't of Transp., 770 F.3d 1260, 1271 (9th Cir. 2014) (quoting City of Carmel-by-the-Sea v. U.S. Dep't of Transp., 123 F.3d 1142, 1150 (9th Cir. 1997)). Although a court must "insure that the agency has taken a hard look at environmental consequences, " a court cannot "interject itself within the area of discretion of the executive as to the choice of the action to be taken." Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976) (quoting Nat. Res. Def. Council v. Morton, 458 F.2d 827, 838 (D.C. Cir. 1972)) (internal quotation marks omitted).

         C

         The Corps must also comply with the ESA, 16 U.S.C. §§ 1531-44. Under the ESA, each federal agency must "insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat" of endangered or threatened species. 16 U.S.C. § 1536(a)(2). Therefore, the Corps must review the permit application "for the potential impact on threatened or endangered species pursuant to section 7 of the Endangered Species Act." 33 C.F.R. § 325.2(b)(5). If the Corps determines that "the proposed activity may affect an endangered or threatened species or their critical habitat, " it must "initiate formal consultation procedures with the U.S. Fish and Wildlife Service [(FWS)] or National Marine Fisheries Service" (NMFS). Id.[4] Conversely, if the Corps "determines that the proposed activity would not affect listed species or their critical habitat, [it] will include a statement to this effect" in the public notice regarding the application for a permit, id., and "the consultation requirements are not triggered, " Pac. Rivers Council v. Thomas, 30 F.3d 1050, 1054 n.8 (9th Cir. 1994).

         After the Corps has completed its review, it will determine whether a permit should be issued and (if an EIS has been prepared) issue a record of decision (ROD). 33 C.F.R. § 325.2(a)(6).

         II

         We next turn to the lengthy history of the Newhall Ranch Project and the activities preceding the Corps's ...


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