Alaska Center for Environment v. West, A96-245 CV (JWS).

• Citation: 31 F.Supp.2d 714
• Decision Date: 30 April 1998
• Docket Number: No. A96-245 CV (JWS).,A96-245 CV (JWS).
• Parties: ALASKA CENTER FOR THE ENVIRONMENT; Chesapeake Bay Foundation, Inc.; Delaware Nature Society, Inc.; Idaho Wildlife Federation; National Wildlife Federation; Nebraska Wildlife Federation; Northwest Environmental Advocates; Northwest Environmental Defense Center, Inc.; Oregon Shores Conservation Coalition; Pennsylvania Federation of Sportsmen's Clubs, Inc.; Pennsylvania Wildlife Federation; Sierra Club, Inc.; South Carolina Wildlife Federation; Tip of the Mitt Watershed Council; Virgin Islands Conservation Society, Inc.; Wildlife Federation of Alaska; and Wyoming Wildlife Federation, Plaintiffs, v. Togo D. WEST, Secretary of the U.S. Department of the Army; Joe N. Ballard, Lieutenant General, Commander of the U.S. Army Corps of Engineers, and the U.S. Army Corps of Engineers, Defendants.
• Court: U.S. District Court — District of Alaska

31 F.Supp.2d 714

ALASKA CENTER FOR THE ENVIRONMENT; Chesapeake Bay Foundation, Inc.; Delaware Nature Society, Inc.; Idaho Wildlife Federation; National Wildlife Federation; Nebraska Wildlife Federation; Northwest Environmental Advocates; Northwest Environmental Defense Center, Inc.; Oregon Shores Conservation Coalition; Pennsylvania Federation of Sportsmen's Clubs, Inc.; Pennsylvania Wildlife Federation; Sierra Club, Inc.; South Carolina Wildlife Federation; Tip of the Mitt Watershed Council; Virgin Islands Conservation Society, Inc.; Wildlife Federation of Alaska; and Wyoming Wildlife Federation, Plaintiffs, v. Togo D. WEST, Secretary of the U.S. Department of the Army; Joe N. Ballard, Lieutenant General, Commander of the U.S. Army Corps of Engineers, and the U.S. Army Corps of Engineers, Defendants.

No. A96-245 CV (JWS).

United States District Court, D. Alaska.

April 30, 1998.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Anthony N. Turrini, National Wildlife Federation, Anchorage, AK, for plaintiffs.

Seth M. Barsky, Gregory Page, and Mark Brown, United States Department of Justice, Washington, DC, for defendants.

ORDER FROM CHAMBERS

SEDWICK, District Judge.

[Re: Motiom for Summary Judgment, Docket 33; Cross-Motion for Summary Judgment, Docket 44]

I. MOTIONS PRESENTED

At docket 33, plaintiffs¹ move for summary judgment on the grounds that defendants Togo D. West, Secretary of the U.S. Department of the Army; Joe N. Ballard, Lieutenant General, Commander of the U.S. Army Corps of Engineers; and the U.S. Army Corps of Engineers' ("Corps") decision to issue Nationwide Permit for Single-Family Housing 29 violates the Clean Water Act, the National Environmental Policy Act, and the Endangered Species Act. At docket 44, the Corps cross-moves for summary judgment. Oral argument was heard on April 3, 1998.

II. BACKGROUND

A. Permit Program

Section 404(a) of the Clean Water Act ("CWA") authorizes the Corps² to issue permits "for the discharge of dredged or fill material into navigable waters." 33 U.S.C. § 1344(a). Each disposal site for which the Corps issues a permit must be specified in accordance with guidelines developed by the Administrator of the Environmental Protection Agency in conjunction with the Corps. 33 U.S.C. § 1344(b). The Corps may issue both individual and general permits.

Individual permits are processed on a case-by-case basis. Evaluation of an individual permit application requires completion of a multi-step iterative examination process, 40 C.F.R. § 230.5. No individual permit will be issued "if there is a practicable alternative to the proposed discharge which would have less adverse impact...." 40 C.F.R. § 230.10(a). Copies of individual permit applications are available to the public, 33 U.S.C. § 1344(o), and the Fish and Wildlife Service is expected to review and comment upon individual permit applications. 33 U.S.C. § 1344(m).

A general permit may be issued only "if the Secretary determines that the activities in [a particular] category 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." 33 U.S.C. § 1344(e)(1).³ General permits must be consistent with guidelines issued by the Administrator of the Environmental Protection Agency pursuant to 33 U.S.C. § 1344(b)(1) and are not directly subject to the best practicable alternative analysis required for the issuance of individual permits. 40 C.F.R. § 230.7(b)(1). Where a general permit applies to a proposed fill, "the applicant needs merely to comply with its terms, and no further action by the [Corps] is necessary." 40 C.F.R. § 230.5(b). States may apply for the authority to issue individual and general permits for the discharge of fill into certain navigable waters within their jurisdictions. 33 U.S.C. § 1344(g).⁴

On November 22, 1991, the Corps published thirty-six general permits applicable nationwide. A Nationwide Permit for Single-Family Housing (known as NWP 29) was added on July 27, 1995. In 1996, the Corps determined to reissue the nationwide permits, some with modifications, and to issue two new nationwide permits. NWP 29 was one of the reissued nationwide permits. (AR Vol. I, tab 7)

B. NWP 29

On July 15, 1996, plaintiffs filed this action challenging the Corps' decision to issue the original version of NWP 29. On December 10, 1996, the Corps issued "Decision Document Nationwide Permit No. 29" (AR Vol. I, tab 5) ("Decision Document") pertaining to the modification and reissuance of NWP 29. On December 13, 1996, the Corps published notice of the reissuance of a slightly modified NWP 29 in the Federal Register. (AR Vol. I, tab 7) Thereafter, the court granted plaintiffs' motion for leave to file a supplemental complaint challenging reissued NWP 29.

In the Decision Document, the Corps concluded that NWP 29 would not have more than minimal individual and cumulative environmental impacts. The Corps also concluded that issuance of NWP 29 would not have a significant impact on the quality of the human environment and that preparation of an Environmental Impact Statement was not required. As explained in the Decision Document, NWP 29 authorizes placement of fill material into non-tidal waters, including nontidal wetlands, for construction or expansion of single family homes and associated improvements only if the following criteria are met:

(1) Placement of fill does not cause loss of more than ½ acre of non-tidal waters including wetlands;

(2) Permittee notifies the district engineer;

(3) Permittee takes all practicable actions to minimize impacts;

(4) Placement of fill is part of a single and complete project;

(5) Placement of fill will not cause an aggregate total loss of more than ½ acre for the entire subdivision if the subdivision was created after 11/21/91;

(6) Permit may only be used in connection with single-family homes used as a personal residence;

(7) Permit may only be used once per parcel;

(8) Permit may not be used in conjunction with NWP 14, NWP 18 or NWP 26 for any parcel; and

(9) Permittee maintains sufficient vegetated buffers between the fill and open water bodies to preclude erosion or sedimentation.

(Decision Document at p. 1) In addition to the preceding specific criteria, use of NWP 29 requires compliance with the general conditions applicable to NWPs. 61 Fed.Reg. 65920.

The Supplemental Complaint alleges that NWP 29 was issued in violation of the Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq.; the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq.; and the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq. Plaintiffs allege that NWP 29 harms plaintiffs by depriving them of procedural opportunities to participate in the individual permitting process, and by threatening significant harm to the environment through adverse impacts on waters, including wetlands which provide habitat for threatened and endangered species.

III. DISCUSSION

A. How NWP 29 Operates

To make use of NWP 29, a person wishing to fill water or wetlands in order to construct or expand a single family home must comply with all nine of the specific criteria the Corps has made applicable to NWP 29. The second criterion requires the permittee to give notice to the Corps' local District Engineer of the proposed placement of fill. The notice is called a preconstruction notice ("PCN").⁵ Among other things, the PCN must be given prior to placement of any fill, and it must provide a brief description of the proposed project and include a delineation of any affected wetlands.

The PCN triggers a review of the proposed fill by the District Engineer which plays a crucial role in the operation of NWP 29. The Corps relies on the District Engineer's review of PCNs to assure that NWP 29 has only minimal adverse impacts on the environment: "The preconstruction notification requirement will allow the district engineer to ensure that individual and cumulative adverse environmental effects of the NWP are minimal." (Decision Document at p. 7) The Corps also relies on the District Engineers' review of PCNs — along with the District Engineer's ongoing local-level coordination with the U.S. Fish & Wildlife Service ("FWS") and the National Marine Fisheries Service ("NMFS") — to assure that the Endangered Species Act is not violated:

Information developed, shared and used by the local Corps and FWS/NMFS offices result in the Corps becoming aware of potential adverse affects on ESA species. *** Moreover, this NWP involves a level of potential impacts that require a PCN process of coordination with the other agencies, the Corps is now specifically requesting any information that the FWS or NMFS may have on endangered species as part of the PCN consultation. *** Any information provided through the PCN process will be used by the district to make its may affect, not likely to adversely affect or no affect decision.

(Decision Document at p. 12)

If, upon reviewing a PCN, the District Engineer determines that the activity will result in more than minimal adverse effects, the project is not authorized under NWP 29, and the applicant may be directed to proceed with an Individual Permit ("IP"). If the District Engineer determines that the adverse effects are minimal and that the project meets the terms and conditions imposed by NWP 29, the prospective permittee will be notified and may begin fill activities. If the District Engineer does not respond to the PCN within 30 days, the prospective permittee may commence placement of fill.

The PCN notice and ensuing review displays many of the earmarks of an individual permit program. However, the review triggered by a PCN submitted pursuant to NWP 29 differs from the review undertaken when an IP application for authorization to place fill is presented to the Corps in three important ways. First, when processing an IP, the District Engineer gives...