Friends of the Santa Clara River; Santa Clarita Organization for Planning the Environment, Plaintiffs-Appellants,
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.
and Submitted February 10, 2017
Submission Vacated June 23, 2017
Resubmitted April 2, 2018 Pasadena, California
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
Buse (argued) and Aruna Prabhala, Center for Biological
Diversity, Oakland, California; Dean Wallraff, Advocates for
the Environment, Shadow Hills, California; for
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
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
Before: Andrew J. Kleinfeld, Sandra S. Ikuta, and Jacqueline
H. Nguyen, Circuit Judges.
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
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.
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.
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.
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.
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.
Santa Clarita Organization for Planning the Environment
(SCOPE) and the Friends of the Santa Clara River
(Friends) challenge the permit issuance under the
Clean Water Act (CWA), the National Environmental Policy Act
(NEPA), and the Endangered Species Act (ESA).We conclude that
the Corps complied with the numerous requirements prescribed
by each of these statutes, and we affirm.
begin by reviewing the legal framework.
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).
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).
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).
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.
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. §
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
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).
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
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. 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.
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. §
turn to the lengthy history of the Newhall Ranch Project and
the activities preceding the Corps's ...