Friends of the Earth v. Hintz

• Decision Date: 12 September 1986
• Docket Number: No. 84-4176,84-4176
• Citation: 800 F.2d 822
• Parties: , 17 Envtl. L. Rep. 20,030 FRIENDS OF THE EARTH; Federation of Western Outdoor Clubs; Seattle Audubon Society; Northwest Steelhead and Salmon Council; North Beach Environmental Coalition, Inc., Plaintiffs/Appellants, v. Colonel Norman C. HINTZ, Seattle District Engineer, Corps of Engineers; William R. Gianelli, Assistant Secretary for Civil Works, Department of the Army; Corps of Engineers, a department of the United States Army; and ITT- Rayonier, Inc., Defendants/Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 822

800 F.2d 822

25 ERC 1048, 17 Envtl. L. Rep. 20,030

FRIENDS OF THE EARTH; Federation of Western Outdoor Clubs Seattle Audubon Society; Northwest Steelhead and Salmon Council; North Beach Environmental Coalition, Inc. Plaintiffs/Appellants, v. Colonel Norman C. HINTZ, Seattle District Engineer, Corps of Engineers; William R. Gianelli, Assistant Secretary for Civil Works, Department of the Army; Corps of Engineers, a department of the United States Army; and ITT- Rayonier Inc., Defendants/Appellees.

No. 84-4176.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 3, 1985.

Decided Sept. 12, 1986.

Michael W. Gendler, Bricklin & Gendler, Seattle, Wash., for plaintiffs/appellants.

Linda McCorkle, Charles Goldmark, John W. Phillips, Seattle, Wash., F. Henry Habiaht, II, U.S. Dept. of Justice, Washington, D.C. for defendants/appellees.

Appeal from the United States District Court for the Western District of Washington, Tacoma Division.

Before REINHARDT and BEEZER, Circuit Judges, and COYLE, ^* District Judge.

COYLE, District Judge:

On January 10, 1983, the Army Corps of Engineers issued a permit pursuant to Section 404 of the Clean Water Act, 33 U.S.C. section 1344, to appellee ITT Rayonier, Inc. ("Rayonier"). The permit authorizes Rayonier to fill a seventeen acre area as part of its sawmill/sorting yard/log export complex located in Grays Harbor on Washington's Pacific Coast within the City of Hoquiam. Appellants ¹ appeal the district court's grant of summary judgment for appellees in which the court upheld the issuance of the permit. Jurisdiction is based upon 28 U.S.C. sections 1291 and

1331 and 33 U.S.C. section 1365. We affirm.

I. FACTS AND PROCEEDINGS BELOW

A. Facts.

In 1975 Rayonier purchased a seventeen acre tract in the "Bowerman Basin" mudflats area of Grays Harbor from the City of Hoquiam for use as a site for its Grays Harbor log export sorting yard. Bowerman Basin is a wetland, and a valuable habitat for numerous species of birds, as well as an important wintering and migratory spot for ducks, geese, and other waterfowl.

After obtaining a shoreline conditional use permit from the Washington State Department of Ecology, Rayonier began filling the seventeen acre tract in June 1978 so that it could be used for log export storage and sorting. At that time, a draft report of the Grays Harbor Estuary Management Plan designated the sorting yard area as outside a wetlands area for purposes of jurisdiction under section 404 of the Clean Water Act; hence, Rayonier neither applied for nor obtained a section 404 permit. Rayonier filled the tract with wood waste, which contains leachate, a highly toxic material.

In August, 1979, Rayonier's filling activities were reported to the Army Corps of Engineers ("Corps"), which prepared a memorandum noting that the fill of the tract might require a section 404 permit. Four months later, the Corps advised Rayonier that it had placed fill on wetlands adjacent to waters of the United States, without obtaining a Department of the Army permit in violation of federal law. On January 14, 1980, the Corps issued a cease and desist order to Rayonier requiring it to place no additional fill material on the wetlands at the Bowerman Basin site.

On March 25, 1980, the Corps requested resource agencies and others to submit their views regarding Rayonier's filling activities. The Corps received reports from the U.S. Fish and Wildlife Service ("FWS"), the National Marine Fisheries Service ("NMFS"), and the Environmental Protection Agency ("EPA"). The general consensus of these reports was that the fill would result in destruction of the wetlands and a recommendation that the Corps take appropriate legal action to have the fill removed. The Corps determined that because of changes in federal regulations relating to the definition of "wetlands" that had been adopted in July 1977, ² Rayonier was required to obtain a section 404 permit but had failed to do so.

B. Administrative History.

The Corps regulations authorize the Corps to issue section 404 permits for activities initially undertaken without the required Department of the Army permit. See 33 C.F.R. Sec. 325 and former Sec. 326.5. Beginning in February 1981, the Corps and various resource agencies began to meet and discuss the possibility of a mitigation plan that would make such an after-the-fact permit for Rayonier acceptable.

On December 2, 1981, Rayonier informed the Corps that a mitigation plan had been reached. The mitigation plan contemplated the purchase by Rayonier of seventeen acres of pasture land ("Elk River site"), and the breaching of a dike to convert the pasture back into wetlands to offset the loss of a similar quantity of wetlands to Rayonier's filling. ³ Rayonier was to convey Meanwhile, Rayonier, acting at the request of the Corps, submitted a number of reports in May and June 1981 concerning its need for an export log storage and sorting area. The purpose of these reports was to determine whether Rayonier's use of the wetlands area for log storage was a "water dependant use" and whether feasible alternatives existed. See 33 C.F.R. Sec. 320.4(b)(4); 40 C.F.R. Sec. 230.10(a)(3). Rayonier argued in the reports that its "integrated" operation required a storage facility close to its dock operations, and that due to financial and logistical problems, no alternative sites existed. After several meetings with Rayonier, and requests for supplemental reports, the Corps collected and analyzed the views of the concerned agencies and Rayonier. On April 9, 1982 the Corps issued a Section 404(b)(1) evaluation and concluded that the sorting yard was a water dependant use and that no feasible alternatives existed.

the Elk River site to the Washington Department of Game ("WDG"); however, the agreement did not require that Rayonier acquire the Elk River site as a prerequisite for the issuance of the section 404 permit. Rather, the agreement provided that Rayonier was to "pursue" purchase of the site. In the event that Rayonier did not purchase the site within six months, the mitigation plan only required Rayonier to pay a sum of $25,500 to the WDG. The absence of language in the mitigation agreement conditioning issuance of the permit upon Rayonier's conveyance of the Elk River site to the Washington Department of Game is one basis for this appeal. ⁴

Rayonier also submitted its formal leachate control plan to the Corps and to the Washington Department of Ecology in March, 1982. Rayonier proposed placement of a two-foot soil cap over the wood waste fill to prevent escape of leachate. The Corps determined that, despite Rayonier's proposals, leachate would continue to degrade the Bowerman Basin water quality for many years, but concluded that this plan would result in measureable improvement in quality of runoff from the site over the long term.

On August 20, 1982, the Corps requested that Rayonier submit a formal Section 404 permit application for the sorting yard pursuant to former 33 C.F.R. Sec. 326.5. On The EPA, FWS, NMFS, and others responded to the public notice by stating that they neither supported nor opposed the permit provided that it was conditioned upon the mitigation agreement being made part of the permit application. The Washington Department of Ecology certified that the permit complied with the relevant provisions of the Federal Water Pollution Control Act, and stated that it had no objection to issuance of the Section 404 permit to Rayonier.

August 27, 1982 Rayonier submitted its Section 404 permit application. On September 28, 1982, the Corps provided public notice of its receipt of the application and intent to issue a section 404 permit to Rayonier. This public notice included the application, referenced the mitigation plan and attached Rayonier's water quality control plan. The notice stated requirements for compliance with the Endangered Species Act, Coastal Zone Management Act, and Clean Water Act, and invited public comment regarding the permit application.

But Friends of the Earth objected to the issuance of the permit, and filed two letters arguing that: (1) the permit activity was not water dependent; (2) practicable alternatives existed, and (3) issuance of the permit would have an adverse effect on water quality. Friends of the Earth did not specifically object to the mitigation plan itself.

On December 21, 1982, the Corps issued an Environmental Assessment ("EA") of Rayonier's permit application. See 33 C.F.R. Sec. 230.9. The EA concluded that with the required mitigation, the permit would have "no significant impact on the human environment" and that, therefore, "no Environmental Impact Statement ("EIS") was needed". See 42 U.S.C. Sec. 4332.

On January 10, 1983, the Corps issued a Section 404 permit to Rayonier with a Statement of Findings. The Mitigation Agreement and Rayonier's water quality plan were made a special condition of the permit. At the time the Corps issued the permit, it sent a letter to the Friends of the Earth rejecting their objections as a basis for denying the permit and including copies of its Section 404(b)(1) evaluation, the EA, Statement of Findings, and the permit.

C. The District Court Proceedings.

Appellants filed suit in the United States District Court for the Western District of Washington on May 3, 1983 seeking judicial review of the Corps' issuance of the Section 404 permit to Rayonier. The District Court had jurisdiction under 28 U.S.C. Sec. 1331. In a six claim complaint, appellants alleged violations of Section 404 of the Clean Water Act, 33 U.S.C. Sec. 1344 (claim one); Section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. Sec. 403 (claim two); Section 402 of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. Sec. 1342 (claim three); Section 307 of the Coastal Zone Management Act of 1972, 16 U.S.C. Sec. 1456 (claim four); Section 102 of the National Environmental Policy Act ("NEPA")...