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

• Decision Date: 26 March 2021
• Docket Number: No. 19-2151,19-2151
• Citation: 991 F.3d 577
• Parties: NATIONAL AUDUBON SOCIETY, Plaintiff - Appellant, v. UNITED STATES ARMY CORPS OF ENGINEERS; Colonel Robert J. Clark, in his official capacity as District Commander of the Wilmington District; The Town of Ocean Isle Beach, Defendants - Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

991 F.3d 577

NATIONAL AUDUBON SOCIETY, Plaintiff - Appellant,

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

No. 19-2151

United States Court of Appeals, Fourth Circuit.

Argued: December 8, 2020

Decided: March 26, 2021

ARGUED: Leslie Griffith, SOUTHERN ENVIRONMENTAL LAW CENTER, Chapel Hill, North Carolina, for Appellant. Eric Allen Grant, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Todd S. Roessler, KILPATRICK TOWNSEND & STOCKTON LLP, Raleigh, North Carolina, for Appellees. ON BRIEF: Geoffrey Gisler, Kimberley Hunter, SOUTHERN ENVIRONMENTAL LAW CENTER, Chapel Hill, North Carolina, for Appellant. Jeffrey Bossert Clark, Assistant Attorney General, Martin F. McDermott, Claudia Antonacci Hadjigeorgiou, Andrew Coghlan, Sommer H. Engels, Environment and Natural Resources Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Carl E. Pruitt Jr., Melanie L. Casner, UNITED STATES ARMY CORPS OF ENGINEERS, Washington, D.C., for Appellee United States Army Corps of Engineers. Joseph S. Dowdy, Phillip A. Harris, Jr., KILPATRICK TOWNSEND & STOCKTON LLP, Raleigh, North Carolina, for Appellee Town of Ocean Isle Beach.

Before GREGORY, Chief Judge, and NIEMEYER, and RICHARDSON, Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Chief Judge Gregory and Judge Richardson joined.

NIEMEYER, Circuit Judge:

The U.S. Army Corps of Engineers granted the Town of Ocean Isle Beach, North Carolina, a permit to construct on its shoreline a "terminal groin" — a jetty extending seaward perpendicular to the shoreline — to arrest chronic erosion of its beaches. The Corps supported its action with the issuance of an Environmental Impact Statement and a Record of Decision.

The National Audubon Society, an organization dedicated to conserving habitat for wildlife, commenced this action in the district court, challenging the issuance of the permit on the ground that numerous analyses conducted by the Corps in both its Environmental Impact Statement and its Record of Decision were inconsistent with the National Environmental Policy Act and the Clean Water Act. On cross-motions for summary judgment, the district court rejected the Audubon Society's challenges and entered judgment for the Corps.

Reviewing the Corps's action under the most deferential standard provided by the Administrative Procedure Act ("APA"), we conclude that the Corps adequately examined the relevant facts and data and provided explanations that rationally connected those facts and data with the choices that it made. Therefore, we affirm.

I

Ocean Isle Beach is a barrier island located in Brunswick County, North Carolina, that is 5.6 miles long and 0.6 miles wide and is oriented in an east-west direction parallel to the coastline. The island faces the Atlantic Ocean to the south and the Atlantic Intracoastal Waterway to the north, and it is bounded on the east by Shallotte Inlet and on the west by Tubbs Inlet.

Over the years, Ocean Isle Beach has suffered chronic erosion, despite the Town's continuing efforts at beach renourishment by dumping dredged sand onto the beach and strategically placing protective sandbags. There are 238 parcels of land at the east end of the island that are at the greatest risk of loss by erosion, including 45 homes. To date, 5 homes have been lost, as have some 560 feet of streets and related utility lines. Currently, renourishment is conducted on behalf of the Town under a federal program that dumps an average of roughly 400,000 cubic yards of sand on its beaches every three years.

After retaining an engineering firm, the Town applied to the U.S. Army Corps of Engineers in May 2012 for a permit under the Clean Water Act to construct a terminal groin at the east end of the island. The proposed groin would be 1,050 feet long with 300 feet landside to anchor it and 750 feet extending seaward from the shoreline. The expectation was that the groin would trap sand on its west side, thus replenishing the beach there, and would also "leak" some sand and water to the east side. The proposal submitted to the Corps also included a plan to dredge the Shallotte Inlet every five years and place the dredged sand on the west side of the groin to maintain a permanent sand fillet there.

In addition to considering the Town's proposal for the terminal groin project, the Corps evaluated four alternatives:

• Alternative 1 was a "no action" plan that functioned as the baseline for analysis. In this scenario, the United States would continue its efforts of dredging Shallotte Inlet to nourish the island's beaches roughly every three years, as it had since 2001. This scenario also forecast that the Town would continue to use sandbags to slow erosion and that homes might need to be relocated to safer parts of the island as erosion continued.

• Alternative 2 was the "abandon/retreat" plan, under which the federal nourishment program would continue but the use of sandbag barricades would end. Other emergency actions to slow erosion would, however, be taken as needed.

• Alternative 3 was the "beach fill only" plan that would provide nourishment of additional sand dredged from the Shallotte Inlet beyond the quantities provided under the federal nourishment program.

• Alternative 4 combined Alternative 3's increased beach nourishment with targeted dredging to realign the channel in the Shallotte Inlet. Over time, repeated dredging in the "borrow area" of the Shallotte Inlet would permanently realign the channel to reduce erosion of the island.

The Town's proposed construction of the terminal groin, as described, was denominated Alternative 5.

The Corps evaluated the Town's proposal and the alternatives under the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq. , and the Clean Water Act ("CWA"), 33 U.S.C. § 1344, to determine each alternative's effectiveness, environmental impacts, and costs. After a comprehensive, years-long study, involving input from numerous agencies and comments from the public, the Corps issued a final Environmental Impact Statement dated April 15, 2016, in which it evaluated the environmental and economic costs of each alternative. It relied mainly on the output of the "Delft3D model," adjusting some of the results to align with historically observed rates of erosion. The Delft3D model is a sophisticated simulation tool capable of taking into account water and sediment flows in the context of water level, tides, currents, waves, and wind. The Corps also considered the costs and environmental effects of dredging sand from Shallotte Inlet, nourishing the beach, and building permanent structures like the groin.

Some nine months after it published its Environmental Impact Statement — on February 27, 2017 — the Corps issued its Record of Decision, concluding that Alternative 5 (construction of the terminal groin) was the "least environmentally damaging practicable alternative." It found that while Alternatives 3, 4, and 5 were practicable and achieved the purpose of reducing erosion, Alternative 5 involved the fewest environmental effects of the three because it would require less beach nourishment than Alternatives 3 or 4. Accordingly, the Corps signed a CWA permit on February 28, 2017, authorizing the Town to construct the terminal groin. The permit, however, required that construction of the groin comply with 56 special conditions, including all of those proposed by both the U.S. Fish and Wildlife Service and the National Marine Fisheries Service, which were designed to avoid and mitigate potential adverse consequences to wildlife.

The National Audubon Society commenced this action against the Corps and the Town of Ocean Isle Beach, challenging both the Corps's Environmental Impact Statement and its Record of Decision. On the parties’ cross-motions for summary judgment, the district court granted judgment to the Corps and denied the Audubon Society's motion. See Nat'l Audubon Soc'y v. U.S. Army Corps of Eng'rs , 420 F. Supp. 3d 409 (E.D.N.C. 2019). The court rejected the Audubon Society's various challenges to the Corps's analyses, concluding, as most relevant to this appeal, that the Corps's reliance on the Delft3D model to meaningfully compare alternatives was not arbitrary and capricious. It noted also that the Corps appropriately adapted the Delft3D model results to reflect historical erosion data and thereby ensure more accurate economic costs. And it concluded further that the Corps, working within the constraints of available modeling, appropriately projected environmental effects in both quantitative and qualitative terms. Also relevant to this appeal, the court rejected the Audubon Society's claims that the Corps did not comply with the CWA, finding that the Corps's evaluation of the terminal groin's secondary effects on the environment was reasonable, as was the Corps's calculation of the frequency of beach-nourishment events. Finally, the court concluded that the Corps properly exercised its subject-matter expertise to weigh each alternative's costs and benefits, while taking into account the opinions of other agencies, to conclude that the terminal groin was the least environmentally damaging practicable alternative.

From the district court's judgment dated September 25, 2019, the Audubon Society filed this appeal.

II

We review the district court's summary judgment de novo, applying the same standard as that court was required to apply. In this case, the district court reviewed the Corps's final agency action under the standard of review fixed by the APA, determining whether the agency's action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).

An action is arbitrary or capricious if "the agency relied on factors that Congress has not intended it to consider, entirely failed to...