Northwest Environmental v. National Marine

• Decision Date: 23 August 2006
• Docket Number: No. 05-35806.,05-35806.
• Citation: 460 F.3d 1125
• Parties: NORTHWEST ENVIRONMENTAL ADVOCATES, Plaintiff-Appellant, v. NATIONAL MARINE FISHERIES SERVICE, United States Army Corps of Engineers, Defendants-Appellees, The Ports of Vancouver, Woodland, Kalama, Longview, Portland, and St. Helens, Defendants-Intervenors-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

460 F.3d 1125

NORTHWEST ENVIRONMENTAL ADVOCATES, Plaintiff-Appellant, v. NATIONAL MARINE FISHERIES SERVICE, United States Army Corps of Engineers, Defendants-Appellees, The Ports of Vancouver, Woodland, Kalama, Longview, Portland, and St. Helens, Defendants-Intervenors-Appellees.

No. 05-35806.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 7, 2006.

Filed August 23, 2006.

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Stephen D. Mashuda, Earthjustice, Seattle, WA, for the plaintiff-appellant.

Matthew J. Sanders, U.S. Department of Justice, Washington, D.C., for the defendants-appellees.

Beth S. Ginsberg, Stoel Rives, LLP, Seattle, WA, for the defendants-intervenors-appellees.

Appeal from the United States District Court for the Western District of Washington; Ricardo S. Martinez, District Judge, Presiding. D.C. No. CV-04-00666-RSM.

Before: B. FLETCHER, SILVERMAN, and GOULD, Circuit Judges.

SILVERMAN, Circuit Judge:

Northwest Environmental Advocates ("NWEA") challenges the adequacy of a 2003 Final Supplemental Integrated Feasibility Report and Environmental Impact Statement prepared by the United States Army Corps of Engineers in connection with a project to deepen the Columbia River navigation channel and to propose new sites for disposal of dredged materials. NWEA argues that the Corps violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., because, it claims, the Final Supplemental Integrated Feasibility Report and Environmental Impact Statement fails to take a "hard look" at the channel deepening project's various impacts. The district court saw otherwise, and held that the Corps had taken the requisite "hard look" at the particular environmental and economic factors at issue. Based on the Corps' extensive examination of the project's cumulative, direct, and economic impacts, we agree with the district court that the Corps has taken the required hard look. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.¹

I. Factual Background

A. The Channel Deepening and Dredged Material Disposal Project

The Columbia River represents a major cargo gateway to the Pacific Northwest. The current depth of the Columbia River navigation channel is 40 feet. Over the past twenty years, larger vessels with "design drafts" exceeding this 40-foot channel depth have carried an increasing share of Columbia River cargo tonnage. Because of the constraints of channel depth, these vessels must arrive "light-loaded." According to the Corps, the current 40-foot channel constrains 70 percent of vessels involved in the transpacific container trade while a 43-foot depth would constrain only 30 percent.

In 1989, Congress directed the Corps to assess the feasibility of deepening the Columbia River's 40-foot navigation channel to a maximum of 43 feet in order to enhance shipping capacity. The current channel deepening project involves deepening the channel from Columbia River Mile 3 to Mile 106.5. The project also includes various ecosystem restoration actions.² The "channel deepening project" also proposes three disposal sites to accommodate dredged material from both channel deepening and the Mouth of the Columbia River project, an independent dredging project. The first two areas are so-called Ocean Dredged Material Disposal Sites and include the Shallow Water Site,³ a dispersive site⁴ located within the littoral cell, and a Deep Water Site. The third area is the North Jetty Site, which is also dispersive and located within the littoral cell. Material dumped at the Shallow Water Site and the North Jetty Site stays in the littoral system, where it can accrete on coastlines to counteract erosion. Sediment placed at the Deep Water Site is considered "inert" because it is effectively removed from the sediment transport system.

In August 1999, the Corps released a Final Integrated Feasibility Report and Environmental Impact Statement for the Columbia River Channel Improvement Project.⁵ This several-hundred-page document contains numerous analyses of the proposed project and its alternatives, affected environment, environmental impact, and implementation. It also includes plans to dispose of dredged material from the Mouth of the Columbia River project and from channel deepening in the North Jetty Site, Site E, and the Deep Water Site. The U.S. Fish and Wildlife Service issued a "No Jeopardy" Biological Opinion on the project's potential impact on certain Endangered Species Act-listed wildlife and plant species. After initially finding that the project would not jeopardize salmonids protected under the Endangered Species Act, NOAA fisheries withdrew its favorable Biological Opinion, citing new information on the project's potential impact on bathymetry, river flow, and resuspension of toxins.

Following this withdrawal, the States of Washington and Oregon denied certification of the project under Section 401 of the Clean Water Act, 33 U.S.C. § 1341, and the Coastal Zone Management Act, 16 U.S.C. § 1451 et seq. They expressed concern over the project's effects on sediment transport and Dungeness crab as well as its consistency with existing coastal programs. Consultations with state agencies followed, and the Corps began preparing a supplemental environmental impact statement to address those concerns. As part of that process, in February 2001, the Corps, NOAA Fisheries, and the U.S. Fish and Wildlife Service hired the non-profit Sustainable Ecosystems Institute to review the channel deepening project's potential environmental impacts. The SEI process involved project reviews by SEI staff members as well as by an independent panel of seven scientific experts. Throughout 2002, the Corps received and responded to numerous comments on the draft supplemental environmental impact statement, including comments from NWEA. Also in 2001, the Corps issued a Biological Assessment of fish and wildlife, which the subsequent Final Supplemental Integrated Feasibility Report and Environmental Impact Statement incorporates as Exhibit H. Based on the Corps' new studies, NOAA Fisheries changed its assessment of the project. In May 2002, it and the U.S. Fish and Wildlife Service issued final Biological Opinions concluding that the channel deepening project would not adversely affect Endangered Species Act-protected species.

In January 2003, the Corps issued its Final Supplemental Integrated Feasibility Report and Environmental Impact Statement ("FSEIS").⁶ The document spans several hundred pages and supplements, updates, and incorporates through reference the 1999 Final Integrated Feasibility Report and Environmental Impact Statement. Among numerous additional studies, the 2003 FSEIS includes Exhibit J, which directly responds to Oregon and Washington's concerns by analyzing the impact of channel deepening on sediment transport in the Columbia River. Based on the revised and expanded analyses, Washington and Oregon withdrew their objections and certified the project.

On January 9, 2004, the Corps issued its Record of Decision approving the channel deepening project.

B. The Channel Maintenance Project

Independently of the proposed channel deepening project, the Corps operates an ongoing dredging project to maintain the current depth of the Columbia River navigation channel at 40 feet. As part of that project, the Corps released a Dredged Material Management Plan and Supplemental Impact Statement in June 1998. The purpose of the Dredged Material Management Plan and Supplemental Impact Statement is to create a 20-year disposal plan for dredged sediments and evaluate proposed changes in dredging and disposal, including shifting current disposal of dredged material to other sites. As described in the 2003 FSEIS for channel deepening, the channel maintenance project represents the "No Action Alternative" to channel deepening.

C. The Columbia River Littoral Cell and Other Ongoing Projects

A central concern of this appeal is the potential for various Corps projects to exacerbate coastal erosion. Historically, the Columbia River has drawn sand from inland areas and deposited it in the estuary, which in turn provided sediment to 100 miles of shoreline from Tillamook Head, Oregon to Point Grenville, Washington. This area is known as the Columbia River littoral cell. Over the past 120 years, various natural and human activities have reduced the amount of sand deposited in and throughout the littoral cell, contributing to erosion of the Oregon and Washington coasts.

In addition to the projects described above, the Corps and other agencies currently operate several other projects in and around the Columbia River. Most relevant to this appeal is the Mouth of the Columbia River ("MCR") project, which the Corps has operated since 1983. The MCR area is a 0.5-mile-wide navigation channel that runs for six miles through the entrance between the Pacific Ocean and the Columbia River. As part of the MCR project, the Corps maintains a channel depth of 55 feet by removing approximately 4.5 million cubic yards of sediment every year. The Corps has placed material dredged from the MCR in four ocean disposal sites (referred to as Sites A, B, E, and F), which the EPA designated in 1977. To accommodate more material, Sites A, B, and F were expanded in 1993, and Site E was expanded in 1997. Recent analyses reveal that the disposal sites for material dredged from the MCR project have or will soon reach capacity. As mentioned, the channel deepening project includes a proposal for three new sites—the North Jetty Site, Shallow Water Site, and Deep Water Site—to accommodate material dredged from the MCR project, as well as from the navigation channel itself.

In addition to the MCR project, the Corps has constructed several jetties at the entrance of the MCR. Furthermore, the Corps and the Bureau of Reclamation operate a system of dams along the Columbia River known collectively as the Federal Columbia...