United States District Court, W.D. Washington, Seattle
ORDER GRANTING MOTION FOR VOLUNTARY REMAND
L. Robart United States District Judge.
the court is Defendant United States Army Corps of
Engineers' (“the Corps”) motion for voluntary
remand. (Mot. (Dkt. # 37).) Plaintiffs Sound Action, Friends
of the San Juans, and Washington Environmental Council
(collectively, “Plaintiffs”) oppose the motion.
(Resp. (Dkt. # 38).) The Corps filed a reply. (Reply (Dkt. #
41).) The court has considered the motion, the parties'
submissions concerning the motion, the relevant portions of
the record, and the applicable law. Being fully advised,
court GRANTS the Corps' motion.
lawsuit, Plaintiffs allege that a 2018 memorandum issued by
the Corps regarding implementation of the Clean Water Act
(“CWA”), 33 U.S.C. § 1251 et seq.
in the Puget Sound region is arbitrary and capricious.
(See Compl. (Dkt. # 1) ¶¶ 2-3.) Plaintiffs
claim that the 2018 memorandum wrongfully reaffirmed a
longstanding Corps interpretation of its CWA jurisdiction in
the Puget Sound region that is contrary to the applicable CWA
regulations. (See id.) Consequently, according to
Plaintiffs, the Corps is underperforming its CWA oversight
duties and exposing the Puget Sound shoreline to harmful
environmental effects. (Id. ¶ 1.)
Corps now offers to rescind both the 2018 memorandum and the
allegedly offending interpretation that gave rise to this
lawsuit on the condition that the court remand this case back
to the Corps for further action. (See Mot. at 1-2.)
Although the court has previously outlined the CWA regulatory
regime and the Corps' historical interpretation of its
jurisdiction under the CWA in the Puget Sound region in
detail (see 2/5/19 Order (Dkt. # 21) at 2-7), that
same background information remains relevant to the
Corps' motion for remand. Thus, the court restates the
relevant portions of that background below before reaching
the merits of the Corps' motion.
The Clean Water Act
404 of the CWA prohibits the discharge of dredged or fill
materials into navigable waters without a permit.
(See Compl. ¶ 13 (citing 33 U.S.C. §
1344).) The CWA defines “navigable waters” as
“the waters of the United States, including the
territorial seas.” 33 U.S.C. § 1362. As it relates
to tidal waters, such as the Puget Sound tidal waters at
issue in this litigation, the Corps defines “waters of
the United States” to mean waters up to the “high
tide line.” (Compl. ¶ 16 (citing 33 C.F.R. §
Corps currently defines the “high tide line” as:
[T]he line of intersection of the land with the water's
surface at the maximum height reached by a rising tide. The
high tide line may be determined, in the absence of actual
data, by a line of oil or scum along shore objects, a more or
less continuous deposit of fine shell or debris on the
foreshore or berm, other physical markings or
characteristics, vegetation lines, tidal gages, or other
suitable means that delineate the general height reached by a
rising tide. The line encompasses spring high tides and other
high tides that occur with periodic frequency but does not
include storm surges in which there is a departure from the
normal or predicted reach of the tide due to the piling up of
water against a coast by strong winds such as those
accompanying a hurricane or other intense storm.
51 Fed. Reg. 41, 206, 41, 251 (Nov. 13, 1986) (originally
codified at 33 C.F.R. § 328.3(d); codified at 33 C.F.R.
§ 328.3(c)(7) in 2015).
High Tide Line
dispute in this case centers on the Seattle District of the
Corps' (“the Seattle District”)
interpretation and application of the definition of high tide
line found in 33 C.F.R. § 328.3(c)(7). The Seattle
District oversees CWA § 404 permits in the Puget Sound
region on behalf of the Corps. (Id. ¶ 35.)
Projects in the Puget Sound that are at or below the high
tide line-as that term is defined under 33 C.F.R. §
328.3(c)(7)-are within the Seattle District's
jurisdiction. (Id. (citing 33 C.F.R. §
328.3(c)(7)).) The Seattle District currently uses the mean
higher high water (“MHHW”) datum to determine the
high tide line and, consequently, the limit of its Section
404 jurisdiction in tidal waters. (Id. ¶ 36.)
According to Plaintiffs, MHHW is “an average of the
higher of the two high water marks each tidal day observed
over a nineteen-year period.” (Id. ¶ 2.)
claim that the Seattle District's use of MHHW to
determine the “maximum height reached by a rising
tide” under 33 C.F.R. § 328.3(c)(7) is unlawful.
(Id.) According to Plaintiffs, MHHW “is
unequivocally significantly lower than the maximum height
reached by a rising tide” and “is surpassed
between three to five times a week in Washington
state.” (Id. ¶¶ 36-37.) In other
words, “about a quarter of high tides” in the
Seattle District's region are above MHHW. (Id.
¶ 37.) Plaintiffs allege that the Seattle District began
using MHHW in the 1970s “when the CWA was initially
passed because that was the highest tidal elevation data
available at the time.” (Id. ¶ 39.) Now,
however, Plaintiffs claim there is data for higher tidal
elevations that the Corps should use to determine its
jurisdictional limits under the CWA. (Id.
to Plaintiffs, the Corps' reliance on MHHW results in a
number of environmental harms. Because the Corps' CWA
jurisdiction extends only to the waters of the United States,
see 33 U.S.C. § 1362, and the Corps'
regulations define the limits of the waters of the United
States as the high tide line, (see Id. ¶ 35
(citing 33 C.F.R. § 328.3(c)(7)), Plaintiffs claim that
the Corps' use of MHHW to define the high tide line
instead of another, higher marker-the Highest Astronomical
Tide (“HAT”)-improperly limits the Corps'
jurisdiction under the CWA, (id. ¶
Plaintiffs allege that the Corps' improper high tide line
measurement limits the Corps' review and permitting of
shoreline armoring projects in the Puget Sound. (Id.
¶¶ 42-43.) Shoreline armoring involves the
construction of seawalls, bulkheads, and similar structures
in order to stabilize the shoreline. (Id.
¶¶ 15, 33.) Plaintiffs allege that shoreline
armoring damages the Puget Sound ecosystem by disrupting
species' spawning habitat and eliminating vegetation and