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Coalition to Protect Puget Sound Habitat v. U.S. Army Corps. of Engineers

United States District Court, W.D. Washington, Seattle

October 10, 2019

THE COALITION TO PROTECT PUGET SOUND HABITAT, Plaintiff,
v.
U.S. ARMY CORPS. OF ENGINEERS, et al., Defendants, and TAYLOR SHELLFISH COMPANY, INC., Intervenor-Defendant. CENTER FOR FOOD SAFETY, Plaintiff,
v.
U.S. ARMY CORPS OF ENGINEERS, et al., Defendants, and PACIFIC COAST SHELLFISH GROWERS ASSOCIATION, Intervenor-Defendant.

          ORDER HOLDING NWP 48 UNLAWFUL IN THE STATE OF WASHINGTON AND REQUESTING ADDITIONAL BRIEFING

          Robert S. Lasnik United States District Judge.

         This matter comes before the Court on cross-motions for summary judgment filed by the parties and intervenors in the above-captioned matters. Dkt. # 36, # 44, and # 45 in C16- 0950RSL; Dkt. # 31, # 43, and # 44 in C17-1209RSL. The Court has also considered the Swinomish Indian Tribal Community's submission in a related case, C18-0598RSL (Dkt. # 28). Plaintiffs challenge the U.S. Army Corps of Engineers' issuance of Nationwide Permit 48 (“NWP 48”) authorizing discharges, structures, and work in the waters of the United States related to commercial shellfish aquaculture activities. Plaintiffs argue that the Corps failed to comply with the Clean Water Act (“CWA”), the National Environmental Policy Act (“NEPA”), and the Endangered Species Act (“ESA”) when it reissued NWP 48 in 2017. They request that the decision to adopt NWP 48 in Washington[1] be vacated under the Administrative Procedures Act (“APA”) and that the Corps be required to comply with the environmental statutes before issuing any new permits or verifications for commercial shellfish aquaculture in this State.[2]

         BACKGROUND

         The CWA authorizes the Army Corps of Engineers to issue permits for the discharge of dredged or fill material into the navigable waters of the United States. 33 U.S.C. § 1344(a). If the Corps determines that activities involving discharges of dredged or fill material “are similar in nature, will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment, ” it may issue general permits on a state, regional or nationwide basis permitting the activities for a five year period. 33 U.S.C. § 1344(e). “[T]he CWA imposes substantive restrictions on agency action” (Greater Yellowstone Coalition v. Flowers, 359 F.3d 1257, 1273 (10th Cir. 2004)): if “the effect of a general permit will be more than minimal, either individually or cumulatively, the Corps cannot issue the permit” (Wyoming Outdoor Council v. U.S. Army Corps of Eng'rs, 351 F.Supp.2d 1232, 1255-57 (D. Wyo. 2005)). General permits often impose requirements and standards that govern the activities undertaken pursuant to the permit, but they relieve operators from the more burdensome process of obtaining an individual, project-based permit.

         In 2017, the Corps reissued NWP 48, thereby authorizing “the installation of buoys, floats, racks, trays, nets, lines, tubes, containers, and other structures into navigable waters of the United States. This NWP also authorizes discharges of dredged or fill material into waters of the United States necessary for shellfish seeding, rearing, cultivating, transplanting, and harvesting activities.” NWP003034. The nationwide permit authorizes(a) the cultivation of nonindigenous shellfish species as long as the species has previously been cultivated in the body of water at issue, (b) all shellfish operations affecting ½ acre or less of submerged aquatic vegetation, and (c) theall operations affecting more than ½ acre of submerged aquatic vegetation if the area had been used for commercial shellfish aquaculture activities at any point in the past 100 years. NWP003034-35.[3]

         In addition to the CWA's requirement that the Corps make “minimal adverse effect” findings before issuing a general permit, “NEPA imposes procedural requirements on federal agencies to analyze the environmental impact of their proposals and actions.” O'Reilly v. U.S. Army Corps of Engr's, 477 F.3d 225, 228 (5th Cir. 2007). Federal agencies are required to do an environmental assessment (“EA”) of their proposed action, providing a brief discussion of the anticipated environmental impacts and enough evidence and analysis to justify a no-significant-impact determination. 40 C.F.R. § 1508.9. If the agency, after conducting an EA, is unable to state that the proposed action “will not have a significant effect on the human environment, ” a more detailed and comprehensive environmental impact statement (“EIS”) must be prepared. 40 C.F.R. § 1508.11 and § 1508.13.[4]

         The Corps' EA regarding the 2017 reissuance of NWP 48 is presented in a Decision Document dated December 21, 2016. NWP003034-3116. An additional condition was later imposed by the Seattle District through its Supplemental Decision Document dated March 19, 2017. COE 127485-611. The Court has considered both Decision Documents to the extent they reflect the Corps' analysis of the anticipated environmental impacts of issuing the nationwide permit and imposing the additional regional condition. The Decision Documents set forth the Corps' discussion of anticipated environmental impacts and the evidence and analysis justifying its determination “that the issuance of [NWP 48] will not have a significant impact on the quality of the human environment, ” making an EIS unnecessary under NEPA. NWP003106. The Decision Documents also reflect the Corps' determination that the “activities authorized by [NWP 48] will result in no more than minimal individual and cumulative adverse effects on the aquatic environment” for purposes of the CWA. NWP003107. The Seattle District, for its part, concluded that if it added a regional condition preventing the commercial harvest of clams by means of hydraulic escalator equipment and evaluated proposed activities as they were verified under the reissued permit, the effects of the permitted activities would be individually and cumulatively minimal. COE 127592-93.

         Plaintiffs argue that these conclusions must be invalidated under the APA because the record does not support the Corps' conclusions regarding the environmental effects of individual shellfish aquaculture activities or their cumulative impacts and the EA does not accurately describe the anticipated environmental impacts of NWP 48 or otherwise justify a no-significant-impact determination. Under the APA, a reviewing court must set aside agency actions, findings, or conclusions that are “arbitrary, capricious, an abuse of discretion, [] otherwise not in accordance with law” or “without observance of procedure required by law.” 5 U.S.C. § 706(2)(A) and (D). Agency action is arbitrary and capricious “if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Although agency predictions within the agency's area of expertise are entitled to the highest deference, they must nevertheless have a substantial basis in fact. Ctr. for Biological Diversity v. Zinke, 900 F.3d 1053, 1067 (9th Cir. 2018). In determining whether a decision is supported by substantial evidence in the record, the Court will not substitute its own judgment for that of the agency but rather considers whether the decision is based on relevant evidence that a reasonable mind might accept as adequate to support the agency's conclusion. San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 601 (9th Cir. 2014).[5]

         DISCUSSION

         Having reviewed the submissions of the parties and the administrative record, and having heard the arguments of counsel, the Court finds that there is insufficient evidence in the record to support the agency's conclusion that the reissuance of NWP 48 in 2017 would have minimal individual and cumulative adverse impacts on the aquatic environment for purposes of the CWA and that the Corps' environmental assessment does not satisfy NEPA's requirements. Although the minimal impacts finding is repeated throughout the Corps' Decision Document (see NWP003038, NWP003045-46, NWP003049, NWP003051, NWP003091, NWP003107), it is based on little more than (1) selectively chosen statements from the scientific literature, (2) the imposition of general conditions with which all activities under nationwide permits must comply, and (3) the hope that regional Corps districts will impose additional conditions and/or require applicants to obtain individual permits if necessary to ensure that the adverse impacts will be minimal. Each of these considerations is discussed below.

         (1) Effects Analysis

         At various points in its analysis, the Corps acknowledges that commercial shellfish aquaculture activities can have adverse environmental impacts. See NWP003040 (commercial shellfish aquaculture activities “have some adverse effects on the biotic and abiotic components of coastal waters, including intertidal and subtidal areas”); Id. (noting that “at a small spacial scale (e.g., the site directly impacted by a specific aquaculture activity) there will be an adverse effect.”); NWP003041 (acknowledging “some impacts on intertidal and subtidal habitats, fish, eelgrass, and birds”); NWP003042 (recognizing that “commercial shellfish aquaculture activities do have some adverse effects on eelgrass and other species that inhabit coastal waters”); COE 127559 (stating that “marine debris is a serious impact on the marine environment”); COE 127570 (acknowledging “potential adverse impacts” to riffle and pool complexes); COE 127584 (noting that “[c]ommercial shellfish aquaculture activities can result in conversion of substrates (e.g. mudflats to gravel bars), impacts to submerged aquatic vegetation, alteration in aquatic communities from native to non-native shellfish species, and water quality impacts from harvest activities”). It concludes that these impacts are no more than minimal, however, (a) when considered on a landscape rather than a site-by-site scale, (b) because the relevant ecosystems are resilient, and (c) because the impacts are “relatively mild” in comparison “to the disturbances and degradation caused by coastal development, pollution, and other human activities in coastal areas.” NWP003040 and NWP003044.

         (a) Scale of Impacts Evaluation

         In determining the potential effects of a proposed discharge of dredged or fill material in an aquatic environment, the Corps is required to determine the nature and degree of the environmental impact the discharge will have, both individually and cumulatively. “Consideration shall be given to the effect at the proposed disposal site of potential changes in substrate characteristics and elevation, water or substrate chemistry, nutrients, currents, circulation, fluctuation, and salinity, on the recolonization and existence of indigenous aquatic organisms or communities.” 40 C.F.R. § 230.11(e) (emphasis added). Ignoring or diluting site-specific, individual impacts by focusing solely on a cumulative, landscape-scale analysis is not consistent with the governing regulations.

         (b) Resilient Ecosystems

         The Decision Document issued by Corps Headquarters acknowledges that “[t]he effects of commercial shellfish aquaculture activities on the structure, dynamics, and functions of marine and estuarine waters are complicated, and there has been much discussion in the scientific literature on whether those effects are beneficial or adverse.” NWP003040. Relying in large part on a paper published by Dumbauld and McCoy for the U.S. Department of Agriculture in 2015, the Corps concluded that the individual and cumulative impacts of the activities authorized by NWP 48 would be minimal “because the disturbances caused by these activities on intertidal and subtidal ecosystems are temporary and those ecosystems have demonstrated their ability to recover from those temporary disturbances.” NWP003045-46.[6]

         Dumbauld and McCoy's research cannot justify such a broad, sweeping conclusion regarding the resilience of entire ecosystems in both the intertidal and subtidal zones. According to the Corps' own summary of the paper, the authors evaluated only the effects of oyster aquaculture activities on submerged aquatic vegetation. NWP003044. The paper itself shows that Dumbauld and McCoy were studying the effects of intertidal oyster aquaculture on the seagrass Zostera marina. There is no discussion of the impacts on other types of aquatic vegetation, on the benthic community, on fish, on birds, on water quality/chemistry/structures, or on substrate characteristics. There is no discussion of the subtidal zone. There is no discussion regarding the impacts of plastic use in shellfish aquaculture and only a passing reference to a possible side effect of pesticide use. The Corps itself does not remedy these deficiencies: although it identifies various resources that will be adversely impacted by issuance of the national permit (along with resources that may benefit from shellfish production), it makes virtually no effort to characterize the nature or degree of those impacts. The Decision Document's “Impact Analysis” consists of little more than an assurance that district engineers will consider the direct and indirect effects caused by the permitted activity on a regional or case-by-case basis. NWP003073-74.

         Under the CWA, the Corps must find that the proposed activity “will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment” before it issues a general permit. 33 U.S.C. § 1344(e). Under NEPA, the Corps is required to “[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. § 1508.9(a)(1). The agency is required to take a “hard look” at the likely environmental impacts of the proposed action and prepare an EA to determine whether the impacts are significant enough to necessitate the preparation of an EIS. Native Ecosys. Council, 428 F.3d at 1238-39. The analysis, though brief, “must be more than perfunctory” and must be based on “some quantified or detailed information; . . . [g]eneral statements about possible effects and some risk do ...


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