Envtl. Control v. United States Army Corp. Of Eng'rs

• Decision Date: 15 July 2010
• Docket Number: Civ. No. 09-821-SLR.
• Citation: 722 F.Supp.2d 535
• Parties: STATE OF DELAWARE DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL, Plaintiff, v. UNITED STATES ARMY CORP OF ENGINEERS (USACOE), the Honorable John McHugh, Secretary of the Army, in his official capacity, the Honorable Jo-Ellen Darcy, Assistant Secretary of the Army, in her official capacity, Lt. Gen. Robert L. Van Antwerp, Jr., Commander, USACOE, in his official capacity and Lt. Col. Thomas Tickner, Commander, USACOE, in his official capacity, Defendants.
• Court: U.S. District Court — District of Delaware

722 F.Supp.2d 535

STATE OF DELAWARE DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL, Plaintiff,

v.UNITED STATES ARMY CORP OF ENGINEERS (USACOE), the Honorable John McHugh, Secretary of the Army, in his official capacity, the Honorable Jo-Ellen Darcy, Assistant Secretary of the Army, in her official capacity, Lt. Gen. Robert L. Van Antwerp, Jr., Commander, USACOE, in his official capacity and Lt. Col. Thomas Tickner, Commander, USACOE, in his official capacity, Defendants.

Civ. No. 09-821-SLR.

United States District Court,D. Delaware.

July 15, 2010.

COPYRIGHT MATERIAL OMITTED.

Joseph R. Biden, III, Attorney General, Jennifer D. Olivia, Deputy Attorney General, Kevin P. Maloney, Deputy Attorney General, Delaware Department of Justice, Wilmington, DE, for Plaintiff.

Ignacia S. Moreno, Environment and Natural Resources Division, Kent E. Hanson, Environmental Defense Section, and Kristofor R. Swanson, Natural Resources Section, United States Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

SUE L. ROBINSON, District Judge.

I. INTRODUCTION

This action follows the decision of the United States Army Corps of Engineers (“the Corps”) to proceed with the deepening of the Delaware River pursuant to its Delaware River Main Stem and Channel Deepening Project (“the Deepening Project”). According to the Deepening Project, the Corps will dredge a portion of the Delaware River to deepen the channel from its established depth of forty feet to a depth of forty-five feet from the mouth of the Delaware Bay to the ports of Philadelphia and Camden. In its complaint, the Delaware Department of Natural Resources and Environmental Control (“DNREC”) seeks injunctive and declaratory relief, alleging that the Corps' decision to proceed without obtaining the requisite federal and state approval violates numerous provisions of the federal and state regulatory process governing such activities. DNREC seeks to enjoin the Deepening Project until the Corps demonstrates its compliance with all applicable state and federal requirements. ( Id.)

Currently pending before the court is DNREC's motion to expand the administrative record lodged by the Corps in support of its decision to proceed with the Deepening Project. (D.I. 74) The court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1346 and 2201. Venue is proper pursuant to 28 U.S.C. § 1391. For the following reasons, the court denies DNREC's motion to expand the administrative record.

II. BACKGROUND A. The Impairment Finding

The court incorporates by reference its previous memorandum opinions (D.I. 61; D.I. 63), which include a detailed recitation of the facts giving rise to the over-arching dispute. For brevity's sake, the court recounts by way of summary those facts relevant to the motion at bar. The Corps has, until recently, maintained the Delaware River's main navigation channel (“the channel”) at a depth of forty feet. In 1983, Congress directed the Corps to evaluate the marked shift towards vessels with deeper drafts, as well as any effects this trend might bear upon the channel's continued viability as a shipping conduit to its ports. Pursuant to this directive, the Corps conducted various studies, finding that contemporary vessel design mandated a channel depth of forty-five feet. ( See D.I. 4, ex. A) In response to these findings, Congress authorized the Deepening Project, which would entail the deepening of a 102 mile stretch of the channel to the Corps' recommended depth. See Water Res. Dev. Act of 1992, Pub.L. No. 102-580, § 101(6), 106 Stat. 4797, 4802.

In January 2001, consistent with its obligations under the Clean Water Act (“CWA”), ¹ the Corps applied to DNREC for a subaqueous lands and wetlands permit in connection with the Deepening Project (“the application”). (D.I. 33, Decl. of Pasquale at ¶ 8) DNREC hired an independent environmental consultant to conduct a public hearing on December 4 and 5, 2001 regarding the application. ( Id.) The consultant subsequently found that the Corps' application suffered from several deficiencies. ( Id.) DNREC received the consultant's recommendation to deny the application in December 2003. ² ( Id.)

On December 17, 2008, despite DNREC's failure to render a decision regarding the application, the Corps sought to address the concerns raised by the consultant in an Environmental Assessment (“the EA”). (D.I. 4, ex. I) The EA disclosed the Corps' review of environmental information generated since a previous report it made in 1997. ( Id.) DNREC declined to comment on the EA, citing the short 1 month time frame allotted by the Corps for commentary, and instead proposed that the Corps submit a new application. ( Id., ex. J)

On April 30, 2009, the Assistant Secretary of the Army issued a Memorandum of Record finding that “the State of Delaware's refusal to provide the subject State permit in a timely and responsible manner would interfere with navigation for the ‘upstream states,’ ” and “has impaired the Secretary of the Army's authority to maintain navigation as specifically directed by Congress in Public Law 102-580, section 101(6)” (“the impairment finding”). ³ (D.I. 33, Decl. of Depasquale, ex. 5) The Corps understood the impairment finding to trigger the “navigation exception” found in CWA section 404(t), which exempts the Corps from regulation under the CWA and affiliated state programs. Accordingly, the Corps began soliciting contracts for the labor associated with the Deepening Project notwithstanding the absence of a subaqueous lands and wetlands permit. Three months later, on July 23, 2009, more than five years after the consultant's recommendation, DNREC denied the Corps' 2001 application for Delaware subaqueous lands and wetlands permits. (D.I. 34, ex. I)

B. Relevant Procedural History

On October 30, 2009, DNREC brought this action to enjoin the Corps from proceeding with the Deepening Project. ⁴ (D.I. 1) In its complaint, DNREC seeks declaratory and injunctive relief pursuant to, inter alia, the Administrative Procedure Act (“the APA”) and alleges that the Corps' decision to proceed violates numerous regulatory provisions governing the Corps' activity including the CWA, the Clean Air Act (“CAA”), the Coastal Zone Management Act (“CZMA”), as well as Title 7, Chapters 72 (Wetlands), 66 (Water Quality) and 60 (Subaqueous Lands) of the Delaware Code. (D.I. 1) On January 27, 2010, the court granted in part and denied in part DNREC's motion for a preliminary injunction, allowing the first phase of the Deepening Project in Reach C to proceed, but enjoining the subsequent phases pending a full examination on the merits of DNREC's case. (D.I. 60; D.I. 61; D.I. 63) In preparation for judicial review on the substantive merits of DNREC's claims, the Corps lodged with the court an administrative record containing 48,000 pages of documents that purportedly form the basis for its decision to proceed with the Deepening Project. (D.I. 68) As the basis for its present motion to expand such, DNREC objects to the administrative record to the extent that it allegedly fails to include all of the information relied upon by the Corps in making the impairment finding.

III. STANDARD OF REVIEW

The APA defines the permissibility and scope of judicial review of agency actions challenged pursuant to its statutory confines. See FCC v. Fox TV Stations, Inc., --- U.S. ----, 129 S.Ct. 1800, 1810, 173 L.Ed.2d 738 (2009). One of a limited few enumerated standards regarding such review provides that

[t]he reviewing court shall-

(2) hold unlawful and set aside agency action, findings, and conclusions found to be---

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law....

5 U.S.C. § 706(2)(A).

The Supreme Court has consistently maintained that an agency action challenged as arbitrary and capricious is subject to a “narrow” standard of review. See Fox TV, 129 S.Ct. at 1810; see also Motor Vehicle Mfrs. Ass'n of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). In this regard, “a court is not to substitute its judgment for that of the agency....” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (U.S.1971). Instead, the “reviewing court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 42 L.Ed.2d 447 (U.S.1974) (internal citations omitted).

Judicial review under the APA turns on a consideration of “the whole record or those parts of it cited by a party....” 5 U.S.C. § 706. The “whole record” consists of the full record that was “before the agency” at the time of the decision at issue. Overton Park, 401 U.S. at 420, 91 S.Ct. 814. The District Court for the District of Columbia has held that the record “before the agency” includes all documents and materials “directly or indirectly” considered by agency decision-makers. See Pac. Shores Subdivision Cal. Water Dist. v. United States Army Corps of Eng'rs, 448 F.Supp.2d 1, 4 (D.D.C.2006). Defining the available universe of review in this manner ensures the propriety of the court's inquiry. Compare Fund for Animals v. Williams, 245 F.Supp.2d 49, 57 n. 7 (D.D.C.2003) (noting that “interpreting the word ‘before’ so broadly as to encompass any potentially relevant document existing within the agency or in the hands of a third party would render judicial review meaningless.”), with Walter O. Boswell Memorial Hospital v. Heckler, 749 F.2d 788, 792 (D.C.Cir.1984) (“To review less than the full administrative record might allow a party to withhold evidence unfavorable to its case ...”).

It is the province of the agency to compile and submit the administrative record for review by the court. Florida Power & Light Co. v. Lorion, ...