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Sound Action v. United States Army Corps of Engineers

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

October 30, 2019

SOUND ACTION, et al., Plaintiffs,


          James L. Robart United States District Judge.


         Before 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, [1] the court GRANTS the Corps' motion.


         In this 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.)

         The 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.

         A. The Clean Water Act

         Section 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. § 328.4(b).)

         The 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).

         B. High Tide Line

         The 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.)

         Plaintiffs 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. ¶¶ 39-41.)

         According 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. ¶ 2).[2] 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. ΒΆΒΆ 15, 33.) Plaintiffs allege that shoreline armoring damages the Puget Sound ecosystem by disrupting species' spawning habitat and eliminating vegetation and ...

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