Alaska Center for the Environment v. West

• Decision Date: 16 September 1998
• Docket Number: No. 96-36190,96-36190
• Citation: 157 F.3d 680
• Parties: , 28 Envtl. L. Rep. 20,001, 98 Cal. Daily Op. Serv. 7209 ALASKA CENTER FOR THE ENVIRONMENT; Anchorage Audubon Society; National Audubon Society; National Wildlife Federation; Sierra Club; Wildlife Federation of Alaska, Plaintiffs-Appellants, v. Togo D. WEST, Jr., Secretary of the U.S. Department of the Army; Arthur E. Williams, Lt. General, Commander, Engineer; United States Army Corps of Engineers, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 680

157 F.3d 680

47 ERC 1225, 28 Envtl. L. Rep. 20,001,

98 Cal. Daily Op. Serv. 7209

ALASKA CENTER FOR THE ENVIRONMENT; Anchorage Audubon Society; National Audubon Society; National Wildlife Federation; Sierra Club Wildlife Federation of Alaska Plaintiffs-Appellants, v. Togo D. WEST, Jr., Secretary of the U.S. Department of the Army; Arthur E. Williams, Lt. General, Commander Engineer; United States Army Corps of Engineers, Defendants-Appellees.

No. 96-36190.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 15, 1998.

Decided Sept. 16, 1998.

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

John T. Stahr, United States Department of Justice, Washington, DC, for defendants-appellees.

Appeal from the United States District Court for the District of Alaska; John W. Sedwick, District Judge, Presiding. D.C. No. CV-95-00229-JWS

Before: FARRIS, O'SCANNLAIN, and HAWKINS, Circuit Judges.

FARRIS, Circuit Judge.

Alaska Center for the Environment appeals the district court's order granting summary judgment to the Army Corps of Engineers under the Clean Water Act, 33 U.S.C. § 1251 et seq. Alaska Center argues that the Corps violated the CWA by wrongfully issuing five general permits for construction on wetlands in Anchorage. We affirm.

I. BACKGROUND

In 1994, the Corps announced that it would issue five general permits authorizing the filling of certain wetlands specified in the Anchorage Wetlands Management Plan. The permits allow specific discharges for five different categories of activities: GP 93-10 applies to residential fill pads, including site preparation and driveways; GP 93-11 applies to roads and other linear development; GP 93-12 applies to commercial, institutional, and community development; GP 93-13 applies to industrial developments; and GP 93-14 applies to wetlands, habitat, and water quality enhancement projects.

The five-year general permits expire in late 1999 and potentially implicate 2,142 acres of wetlands. Based on analysis of prior years and the initial year of the present permits, however, the Corps concluded that only 360 acres would likely be affected.

Alaska Center filed suit in 1995 seeking an injunction against development under the general permits. Following an initial remand to allow the Corps to reissue the permits with modifications, the district court granted summary judgment against Alaska Center.

Alaska Center challenges both the Corps' finding that the general permits authorize activities that are "similar in nature" and that the general permits authorize activities that have "minimal" individual and cumulative adverse environmental effects. Alaska Center also contends that the Corps illegally delegated regulatory authority under § 404 of the CWA to the Municipality of Anchorage.

II. DISCUSSION

We review de novo the district court's grant of summary judgment. See Quevedo v. Trans-Pacific Shipping, Inc., 143 F.3d 1255, 1257-58 (9th Cir.1998). An agency decision should be set aside only if arbitrary and capricious. See Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 375-76, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). Review under the standard, though narrow, must be searching and careful. See Id. at 378, 109 S.Ct. 1851. The court must determine whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. See Id.

The Clean Water Act is designed to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). Under the statute, the discharge of pollutants into navigable waters is unlawful unless authorized by permit. The term "pollutants" includes dredge or fill material. 33 U.S.C. § 1362(6). The term "navigable waters" includes wetlands. 33 U.S.C. § 1362(7); United States v. Pozsgai, 999 F.2d 719, 727 (3d Cir.1993).

The Corps may issue individual or general permits for the discharge of dredge or fill materials into wetlands. See 33 U.S.C. § 1344. This permit process is governed simultaneously by Corps Regulations, 33 C.F.R. §§ 320-29, and by EPA guidelines, 40 C.F.R. §§ 230.1-230.7.

Individual permits for discharges issue only after notice, public hearings, and a case-by-case evaluation of a specific project. See 33 C.F.R. § 323.3(g); 33 U.S.C. § 1344(a). General permits, on the other hand, do not require the same site-specific analysis. Instead, they require a two-part inquiry into the similarity of the projects and their environmental effects. As stated by the statute, general permits may issue on a state, regional, or nationwide basis

for any category of activities involving discharges of dredged or fill material if the Secretary determines that the activities in such 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)(emphasis added). The guidelines implementing this section provide that:

A General Permit for a category of activities involving the discharge of dredged or fill material complies with the Guidelines if it meets the applicable restrictions on the discharge in § 230.10 and if the permitting authority determines that:

(1) The activities in such category are similar in nature and similar in their impact upon water quality and the aquatic environment;

(2) The activities in such category will have only minimal adverse effects when performed separately; and

(3) The activities in such category will have only minimal cumulative adverse effects on water quality and the aquatic environment.

40 C.F.R. § 230.7(a).

Thus, the general permits allow the Corps to circumvent the process of specific approval "where numerous applications for similar activities are likely...." 40 C.F.R. § 230.6(a). General permits may issue for only five years, and the Corps has the authority to revoke them if it determines that the environmental impact is more than minimal or that individual permits should be used. See 33 U.S.C. § 1344(e)(2).

A project falling within the category of a general permit may proceed without further authorization if it meets specified conditions. 33 C.F.R. § 325.2(e)(2). The Corps also retains discretionary authority to require that any project proceed through the individual permitting process. 33 C.F.R. § 325.2(e)(2).

A. SIMILAR IN NATURE

Prior to issuing a general permit, the Corps must publish an evaluation including a "precise description of the activities to be permitted ... explaining why they are sufficiently similar in nature and in environmental impact to warrant regulation under a single General permit...." 40 C.F.R. § 230.7(b)(2). Alaska Center argues that the Corps failed to meet the separate "similar in nature" requirement because it considered only the minimal environmental effects of the activities under the permits.

Undoubtedly, the Corps placed great weight on ensuring that the activities allowed would each have a similar minimal effect on the environment. The Corps emphasized that "[t]he proposed GP's are designed so that secondary impacts that might differentiate the activities proposed for authorization have been reduced such that environmental impacts would not now differ among the GPs." Despite the apparent argument to the contrary, such considerations do not constitute arbitrary and capricious action. The regulations explicitly require the Corps to consider and explain why actions are "similar ... in environmental impact." 40 C.F.R. § 230.7(b). The conditions satisfy this requirement.

The general conditions in the permits include buffer zones to protect adjacent wetlands and waterbodies of higher environmental value; limits on the type of discharge materials; and a requirement that the applicant receive an initial opinion of compliance from the municipality. The special conditions, which make up the bulk of the permit document, provide further limitations which narrow application of the permits to a substantial degree. A brief review of various individual permits establishes this tailoring.

-Permit 93-10 applies only to residential buildings. It does not allow any structure over 50 feet in height. Driveways are restricted to a maximum of 40 feet width and a length of 200 feet.

-Permit 93-11 is limited to residential streets, alleys and collector streets no more than 75 feet in width. It also limits its application to linear development for items such as utility lines. Larger roads and non-linear development are excluded.

-Permit 93-12 is limited to those businesses listed in the Anchorage Municipal Code Title 21.35.020, and public and private institutions. The permit prohibits underground storage tanks; air pollutant sources other than normal heating and power; and anything above incidental use of hazardous substances for cleaning and maintenance.

-Permit 93-13 applies only to industrial development whose fundamental purpose is the assembly, storage, and/or distribution of products constructed of inert materials. Activities in the open are limited to those connected with marshalling yards for storage and distribution of industrial products. Pursuant to the general conditions, the permit does not authorize natural resource processing, gravel mining, dry cleaning operations, battery transfer yards, auto repair garages, and other items.

The question thus turns to whether the Corps could use the same types of conditions to satisfy the remaining "similar in nature" requirement of the regulations. There is no disagreement that the permits authorize a broad range of potential activities. For example, Permit 93-10 may be used for such items as single-family dwellings, two-family dwellings, row-houses, rooming homes, and other residential structures. See Anchorage Municipal Code Title 21.40. The parties' dispute centers on a single issue: whether the Corps may issue a general...