Nat'l Audubon Soc'y v. U.S. Army Corps of Eng'rs

• Decision Date: 25 September 2019
• Docket Number: NO. 7:17-CV-162-FL,7:17-CV-162-FL
• Citation: 420 F.Supp.3d 409
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: NATIONAL AUDUBON SOCIETY, Plaintiff, v. UNITED STATES ARMY CORPS OF ENGINEERS, Colonel Robert J. Clark in his official capacity as District Commander of the Wilmington District, and The Town of Ocean Isle Beach, Defendants.

420 F.Supp.3d 409

NATIONAL AUDUBON SOCIETY, Plaintiff,

v.UNITED STATES ARMY CORPS OF ENGINEERS, Colonel Robert J. Clark in his official capacity as District Commander of the Wilmington District, and The Town of Ocean Isle Beach, Defendants.

NO. 7:17-CV-162-FL

United States District Court, E.D. North Carolina, Southern Division.

Signed September 25, 2019

Kimberley Hunter, Leslie Griffith, Geoffrey Randall Gisler, Southern Environmental Law Center, Chapel Hill, NC, for Plaintiff.

Claudia A. Hadjigeorgiou, Andrew S. Coghlan, Cynthia S. Huber, Martin F. McDermott, United States Department of Justice, Washington, DC, Neal Fowler, United States Attorney's Office - EDNC, Phillip A. Harris, Jr., Nelson Mullins Riley & Scarborough, LLP, Todd S. Roessler, Kilpatrick Townsend & Stockton LLP, Raleigh, NC, Chad D. Hansen, Kilpatrick Townsend & Stockton LLP, Winston-Salem, NC, for Defendants.

ORDER

LOUISE W. FLANAGAN, United States District Judge

This matter is before the court on the parties' cross-motions for summary judgment. (DE 47, 55, 57). The issues raised have been fully briefed, and in this posture are ripe for decision. For reasons that follow, summary judgment is granted in favor of defendants.

STATEMENT OF THE CASE

Plaintiff is a membership organization that works to conserve and restore habitat for wildlife, with a particular focus on birds and bird habitat. Plaintiff initiated this action August 14, 2017, seeking review of final agency action by defendant United States Army Corps of Engineers ("USACE") allowing defendant The Town of Ocean Isle Beach ("Ocean Isle") to construct a type of rock wall known as a "terminal groin" and a beach fillet in that part of Ocean Isle Beach immediately southwest of Shallotte Inlet ("Project").¹

Particularly, plaintiff seeks judicial review of the record of decision ("ROD") issued by USACE, granting Ocean Isle a permit allowing discharge of dredged or fill material into navigable waters, pursuant to section 404 of the Clean Water Act, 33 U.S.C. § 1344, et seq. ("CWA"). Plaintiff also challenges the adequacy of an environmental impact statement ("EIS") prepared by defendant USACE in support of the ROD and permit, pursuant to the National Environmental Policy Act, 42 U.S.C. § 4331, et seq. ("NEPA"). Plaintiff amended its complaint as of right August 28, 2017, joining Ocean Isle as a defendant.

Defendant USACE is an agency within the United States Department of Defense charged with regulating construction in the waters of the United States, pursuant to the CWA, and defendant Colonel Robert J. Clark ("Clark") is district commander at defendant USACE's Wilmington district office (collectively "federal defendants"). Defendant Ocean Isle is an incorporated town located in Brunswick County, North Carolina.

Plaintiff alleges that the federal defendants approved the Project without proper consideration of environmental consequences. In the first claim for relief, plaintiff alleges that USACE violated NEPA where it failed to evaluate fairly the comparative merits of studied alternatives. In the second claim for relief, plaintiff alleges USACE failed to include certain information in NEPA documents essential to a reasoned choice among alternatives, in violation of regulations promulgated by the Council on Environmental Quality ("CEQ regulations"). In its third claim for relief, plaintiff alleges that USACE failed to evaluate "secondary effects" of the studied alternatives, in violation of the CWA and CEQ regulations. In the fourth claim for relief, plaintiff alleges that USACE selected an alternative other than the Least Environmentally Damaging Practicable Alternative ("LEDPA"), in violation of the CWA. Finally, in the fifth claim for relief, plaintiff alleges USACE failed to "independently evaluate" environmental information submitted by Coastal Planning and Engineering of North Carolina, Inc. ("CPE"), in violation CEQ regulations. In each claim for relief, plaintiff proceeds under the judicial review provisions of the Administrative Procedure Act ("APA"), 5 U.S.C. § 701, et seq.

Plaintiff moved to complete and supplement the administrative record on February 16, 2018. The court allowed as extra-record evidence certain emails purporting to show a conflict of interest and the lack of independent review by defendant USACE, and denied the motion in remaining part. Nat'l Audubon Soc'y v. United States Army Corps of Engineers, No. 7:17-CV-162-FL, 2018 WL 4760124 (E.D.N.C. Sept. 30, 2018). Thereafter, federal defendants submitted the administrative record to the court. See Nat'l Audubon Soc'y v. United States Army Corps of Engineers, No. 7:18-MC-00010-FL (E.D.N.C. Oct. 16, 2018).² The administrative record contains voluminous documents involving the permitting process for the Project, broadly including but not limited to defendant Ocean Isle's processing agreement with defendant USACE; CPE's disclosure statement; miscellaneous communications; records from the scoping process; defendant Ocean Isle's permit application; internal drafts, comments, revisions, and draft EIS ("DEIS"); public notice and comment on DEIS; various agency consultations; internal drafts, comments, revisions, and final EIS ("FEIS"); public notice and comment on FEIS; ROD; and the permit.

Plaintiff moved for summary judgment on November 21, 2018, relying upon the completed administrative record, as well as declarations from several of its members. Each defendant also moved for summary judgment on January 31, 2019, relying upon the same.

STATEMENT OF THE UNDISPUTED FACTS

The undisputed facts may be summarized as follows. Ocean Isle Beach is a coastal barrier island in southwest Brunswick County, North Carolina. (R. 8228). The island spans approximately 5.6 miles west-to-east from Tubbs Inlet to Shallotte Inlet and 0.6 miles north-to-south from the Intracoastal Waterway to the Atlantic Ocean. (R. 8185, 8228). Holden Beach, also a barrier island, lies to the east of Shallotte Inlet, which connects the Atlantic Ocean to the Intracoastal Waterway before joining Shallotte River. (R. 8186). Ocean Isle Beach and Holden Beach provide important habitats for birds and other wildlife, including the piping plover and red knot, which are federally protected shorebirds. (See R. 8253–85).

In 2001, the United States began protecting Ocean Isle Beach's shoreline by dredging sand from a "borrow area" in Shallotte Inlet, and placing that sand along approximately three miles of defendant Ocean Isle's shoreline ("Federal Project"). (R. 8186–87, 8532, 10954). Following initial construction of the Federal Project, the beach was scheduled for renourishment every three years, and in practice renourished in 2006-2007, 2010, and 2014. (R. 8197–98, 8204). The far eastern end of the island was not included in the Federal Project because of the predicted high rates of loss of beach fill due to erosion. (R. 8196). As predicted, severe erosion plagued the eastern end of the island. (See R. 8198). Despite efforts to stop the shoreline's advance, including use of sandbag revetments beginning in 2005 and additional beach nourishment in 2007, erosion destroyed several houses, portions of streets, and certain utilities. (R. 8197–99, 8204).

In 2011, the North Carolina General Assembly passed a law allowing construction of terminal groins in North Carolina. (R. 342–45). Following the change in state law, defendant Ocean Isle commissioned CPE to prepare a feasibility study to determine whether a terminal groin would resolve defendant Ocean Isle's erosion problem along its eastern shoreline. (R. 146–83). CPE preliminarily determined that a terminal groin feasibly would reduce erosion rates and periodic nourishment events, and avert further damage at the eastern end of the island. (R. 181–82).

In May 2012, defendant Ocean Isle asked defendant USACE to formally initiate the environmental review and approval process for the Project, and after interviewing several environmental consulting firms recommended CPE as the contractor to prepare the EIS for the Project. (R. 40). After reviewing CPE's qualifications, defendant USACE selected CPE to prepare the EIS. (R. 60–61). CPE executed a disclosure statement representing it had "not entered into and, during the lifetime of the EIS preparation, will not enter into any agreement affording us or any Subcontractors that we may hire with any direct or indirect financial interest in the planning, design, construction or operation" of the Project. (R. 91). Shortly thereafter, defendant Ocean Isle entered into a processing agreement with defendant USACE. (R. 105–11). On September 15, 2014, defendant Ocean Isle, with CPE acting as its agent, filed a permit application with defendant USACE seeking permission to construct a terminal groin and place approximately 264,000 cubic yards of sand along the beach. (R. 588–615).

Environmental review of the Project took place over five years following defendant Ocean Isle's initial contact with defendant USACE. On January 23, 2015, defendant USACE issued its DEIS, together with public notice seeking comments on the DEIS and proposed project. (R. 3920–33, 3960–4903). Defendant USACE held a public hearing on the proposed project and the DEIS on March 3, 2015. (R. 4926–5015). After reviewing public comment on the DEIS, defendant USACE responded to the comments and issued public notice of its FEIS on April 29, 2016, again requesting public comment. (R. 8161–68, 8170–9522).

The purpose of defendant Ocean Isle's project was to reduce erosion along its eastern shoreline, maintain defendant Ocean Isle's tax base, maintain recreational resources, and balance the needs of the human environment with protecting natural resources. (R. 8196). The FEIS reviewed five project alternatives. Alternative one continued existing beach management practices. (R. 8203–08). Alternative two continued the Federal Project, but removed sand bag barricades where erosion occurs. (R. 8209). Alternative three continued the Federal...