Friends of Capital Crescent Trail v. U.S. Army Corps of Eng'rs

• Decision Date: 13 May 2021
• Docket Number: No. 20-1544,20-1544
• Parties: FRIENDS OF THE CAPITAL CRESCENT TRAIL; JOHN MACKNIGHT FITZGERALD; LEONARD SCENSNY, Plaintiffs - Appellants, v. UNITED STATES ARMY CORPS OF ENGINEERS; COL. JOHN T. LITZ, Commander and District Engineer United States Army Corps of Engineers; CHIEF JOSEPH P. DAVIA, Chief, Maryland Section, Northern United States Army Corps of Engineers, Defendants - Appellees, and MARYLAND DEPARTMENT OF TRANSPORTATION, MARYLAND TRANSIT ADMINISTRATION Intervenor/Defendant - Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

FRIENDS OF THE CAPITAL CRESCENT TRAIL;

JOHN MACKNIGHT FITZGERALD; LEONARD SCENSNY, Plaintiffs - Appellants, v. UNITED STATES ARMY CORPS OF ENGINEERS; COL. JOHN T. LITZ,

Commander and District Engineer United States Army Corps of Engineers;

CHIEF JOSEPH P. DAVIA, Chief, Maryland Section,

Northern United States Army Corps of Engineers, Defendants - Appellees,

and

MARYLAND DEPARTMENT OF TRANSPORTATION,

MARYLAND TRANSIT ADMINISTRATION Intervenor/Defendant - Appellee.

No. 20-1544

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: March 11, 2021

May 13, 2021

UNPUBLISHED

Appeal from the United States District Court for the District of Maryland, at Greenbelt. James K. Bredar, Chief District Judge. (8:19-cv-00106-JKB)

Before KEENAN, QUATTLEBAUM, and RUSHING, Circuit Judges.

Affirmed by unpublished opinion. Judge Keenan wrote the opinion, in which Judge Quattlebaum and Judge Rushing joined.

ARGUED: David W. Brown, KNOPF & BROWN, Rockville, Maryland, for Appellants. Sommer H. Engels, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Albert M. Ferlo, Jr., PERKINS COIE LLP, Seattle, Washington, for Appellees. ON BRIEF: Eric Grant, Deputy Assistant Attorney General, Kevin McArdle, Gustavus Maxwell, Sarah A. Buckley, Environment and Natural Resources Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Gregory McDonough, Katherine T. Wainwright, UNITED STATES ARMY CORPS OF ENGINEERS, Washington, D.C., for Defendants-Appellees. Brian E. Frosh, Attorney General, Julie T. Sweeney, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland; Julie Wilson-McNerney, PERKINS COIE LLP, Seattle, Washington, for Intervenor/Defendants-Appellees.

Unpublished opinions are not binding precedent in this circuit.

BARBARA MILANO KEENAN, Circuit Judge:

This case involves the lengthy planning process for a mass transportation project to connect the Maryland suburbs of Washington, D.C. After years of receiving public comments and evaluating various alternative proposals, the Maryland Transit Administration (Maryland) and the Federal Transit Administration (collectively, the transit agencies) selected a light rail option known as the Purple Line. The Purple Line is planned to extend 16 miles through the Maryland suburbs and to connect to existing mass transit options, including the Washington Metrorail.

At issue in this appeal is the Army Corps of Engineers' (the Corps) decision to grant Maryland a permit under Section 404 of the Clean Water Act, 33 U.S.C. § 1344, which enables Maryland to discharge certain pollutants into nearby wetlands and waterways during construction of the Purple Line. The plaintiffs, an environmental organization and two concerned residents, argue that in issuing the permit, the Corps unreasonably relied exclusively on alternatives for the project evaluated during a prior environmental review process, and failed to consider certain unspecified bus alternatives that may have created a lesser environmental impact.

In a comprehensive opinion, the district court concluded that the Corps' decision to issue a permit was not arbitrary or capricious under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). The court rejected the plaintiffs' contention that the Corps should have considered additional hypothetical alternatives, given the relatively minor impact the project would have on nearby wetlands. We agree with the district court's analysis and affirm the court's judgment.

I.

For more than 20 years, Maryland authorities have been planning to construct a mass transportation corridor connecting the growing population centers in Montgomery and Prince George's Counties. To obtain federal funding for the project, see 49 U.S.C. § 5309(c), the transit agencies were required to complete the environmental review process set forth in the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4332; see also 49 U.S.C. § 5309(d)(1)(A)(i)(II)-(d)(1)(B). In 2003, the transit agencies began preparing the environmental impact statement required by NEPA, 42 U.S.C. § 4332(C). In their notice of intent to prepare an environmental impact statement, the transit agencies explained that the NEPA review would

address the need to improve transit access, reduce travel times and improve connectivity in response to regional growth, traffic congestion, and land use plans for the area. [The environmental impact statement] will examine potential impacts and benefits to the social, cultural, economic, built and natural environment. [The statement] will develop and evaluate alternatives that are cost efficient and beneficial. Improvements that enhance connections to existing transit systems, increase access to transit and to economic development areas, and minimize adverse impacts will be identified.

After receiving extensive input from government officials and the public, the transit agencies identified eight proposals in 2008 for more detailed analysis and consideration. These included a "no-build" option, which would not involve any new construction, and a Transportation System Management (transportation management) option, which would attempt to improve transportation services on preexisting roadways, including "improved bus service." The transit agencies also identified three bus rapid transit options (the rapid bus options) and three light rail transit options (the light rail options), each requiringvarying levels of investment. The rapid bus and light rail alternatives would use some dedicated surface lanes, some shared lanes, and some exclusive guideways, depending on the level of investment. As the district court explained, the transit agencies had, prior to identifying the eight proposals for more detailed analysis and consideration, considered additional rapid bus and light rail alternatives, but had rejected these options for various reasons, "including poor travel times, property impacts, environmental impacts, cost, and public opposition."

After a ninety-day comment period, Maryland selected the medium-investment light rail option as the "Locally Preferred Alternative" (the Purple Line), which the Federal Transit Administration included in the final environmental impact statement issued in 2013. The Federal Transit Administration solicited additional comments on the final environmental impact statement, and in 2014 issued its Record of Decision approving the medium-investment light rail alternative. Two of the plaintiffs in the present case, the environmental group Friends of the Capital Crescent Trail and John Fitzgerald, filed suit in the district court for the District of Columbia, challenging the Record of Decision as failing to satisfy the requirements of NEPA. See Friends of the Cap. Crescent Trail v. Fed. Transit Admin., 200 F. Supp. 3d 248 (D.D.C. 2016), rev'd in part, 877 F.3d 1051 (D.C. Cir. 2017). The D.C. Circuit ultimately considered and rejected the claim, upholding the adequacy of the NEPA process. See Friends of Cap. Crescent Trail, 877 F.3d at 1063-66. Maryland initiated construction of the Purple Line in August 2017, shortly before the D.C. Circuit issued its decision.

While the NEPA litigation was pending, Maryland filed an application for a permit under Section 404 of the Clean Water Act, 33 U.S.C. § 1344 (the Section 404 permit, or the permit). If granted by the Corps, the permit would allow Maryland to discharge certain pollutants into nearby wetlands and waterways during construction of the Purple Line. See 33 U.S.C. § 1344(a), (d). The Corps opened a three-month-long comment period on Maryland's request for a permit and received extensive public input, including negative comments from the plaintiffs in this case. The Corps also requested, and Maryland provided, additional information regarding its analysis of the project alternatives.

In 2018, the Corps granted Maryland's application for a Section 404 permit and issued a Memorandum for Record explaining its decision. The Corps defined the purpose of the project as seeking

[t]o provide an expedited east-west mass transit service connecting major activity centers in a corridor extending from Bethesda to New Carrollton; to provide improved connections and travel times to the Metrorail services located in the corridor; and to improve connectivity to the communities in the corridor located between the Metrorail lines.

In reviewing Maryland's request, the Corps incorporated by reference the NEPA analysis of the environmental impact of the eight project alternatives. The Corps also conducted its own review of the aquatic impacts and the practicability of each proposal. The Corps rejected the no-build and transportation management alternatives as impracticable, because those alternatives would not advance the purpose of the project,namely, improving transit connectivity and travel times.¹ After analyzing the six rapid bus and light rail options, the Corps concluded that the Locally Preferred Alternative also was the "least environmentally damaging practicable alternative" under the Clean Water Act, because the Purple Line option had the smallest impact on area wetlands. Notably, this option would impact only about one-half acre of wetlands, less than half the area affected by the next closest option. The Purple Line option also would impact about 5,100 linear feet of permanent streams, the third-lowest impact of the six options.

The Corps acknowledged that the medium-investment light rail option had a higher impact on streams than some other alternatives. However, "based on an overall comprehensive review of proposed impacts to waters of the U.S.," including the much lower impact on wetlands compared to the other alternatives, the Corps concluded that the Purple Line option was the least environmentally damaging practicable alternative.

In reaching its conclusion, the Corps explained that "[i]mpacts to the waters of the U.S. and wetlands [caused by the Purple Line] have been avoided and minimized wherever practicable...