National Wildlife Federation v. Brownlee
| Decision Date | 31 March 2005 |
| Docket Number | No. CIV.A.03-1392(JR).,CIV.A.03-1392(JR). |
| Citation | 402 F.Supp.2d 1 |
| Parties | NATIONAL WILDLIFE FEDERATION, et al., Plaintiffs, v. Les BROWNLEE, Acting Secretary, U.S. Department of the Army, Defendant. |
| Court | U.S. District Court — District of Columbia |
John F. Kostyack, National Wildlife Federation, Mary Randolph Sargent, National Wildlife Federation, Washington, DC, for Plaintiffs.
Mark Arthur Brown, U.S. Department of Justice, Wildlife & Marine Resources Section, Eric G. Hostetler, United States Department of Justice, Jessica O'Donnell, U.S. Department of Justice, Adam J. Siegel, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, for Defendant.
Vincent Atriano, Squire, Sanders & Dempsey, L.L.P., Columbus, OH, for Agripartners, G.P., Kara M. Maciel, Krupin O'Brien, LLC, Washington, DC, Craig Alan Sturtz, Squire, Sanders & Dempsey, LLP, Columbus, OH, for Intervenor Defendant.
Virginia S. Albrecht, Hunton & Williams, Washington, DC, Douglas Scott Burdin, Oakton, VA, Mark G. Weisshaar, Hunton & Williams LLP, Washington, DC, for Utility Water Act Group, Amicus.
Plaintiffs, two environmental groups, challenge four nationwide dredge-and-fill permits issued by the Army Corps of Engineers. Plaintiffs assert that these permits violate the Clean Water Act (CWA), 33 U.S.C. § 1251 et seq.; National Environmental Policy Act (NEPA), 42 U.S.C. § 4331 et seq.; Endangered Species Act (ESA), 16 U.S.C. § 1531 et seq.; and Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq. by allowing development that threatens the endangered Florida panther. I find that the Corps was obligated under the ESA to consult with the Fish and Wildlife Service (FWS) before issuing these permits. Since the Corps did not do so, I must grant summary judgment to plaintiffs on this technical point.
This is the third case before me involving the Florida panther. See Nat'l Wildlife Fed'n v. Norton, 332 F.Supp.2d 170 (D.D.C.2004); Nat'l Wildlife Fed'n v. Caldera, No. 00-1031, 2002 WL 628649 (D.D.C. Mar. 26, 2002). My decisions in those cases contain additional background information on the plight of the panther and efforts to protect it.
The Florida panther, a federally listed endangered species, is "one of the most endangered large mammals in the world." A.R., Vol. 3, Doc. # 2, at 4-117. Only 100 or fewer of these big cats occupy a habitat that stretches across large areas of south Florida. Development projects in the region pose a potential threat to the panther. Large portions of panther habitat are on land that cannot be developed without a permit from the Army Corps of Engineers. Under the CWA, the Corps is entrusted with regulating the dredging and filling of wetlands. The CWA allows the Corps to issue individual site permits after notice and public hearing. 33 U.S.C. § 1344(a). To streamline the permitting process, Congress has allowed the Corps to issue general nationwide permits (NWPs), renewable every 5 years, for categories of activities that the Corps finds "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). Development meeting the conditions of an NWP may proceed without interaction with the Corps.1 The Corps issued the four NWPs challenged in this litigation in January 2002:
These NWPs are all subject to General Condition 11, which states that:
No activity is authorized under any NWP which is likely to jeopardize the continued existence of a threatened or endangered species ... Non-federal permittees shall notify the District Engineer if any listed species ... might be affected or is in the vicinity of the project, ... and shall not begin work on the activity until notified by the District Engineer that the requirements of the ESA have been satisfied and that the activity is authorized.
Under Section 7 of the ESA, the Corps must develop and carry out a program for the conservation of endangered species such as the panther, 16 U.S.C. § 1536(a)(1) (ESA Section 7(a)(1)). The Corps must also determine "at the earliest possible time" whether any action it takes "may affect" endangered species, and, if the answer is in the affirmative, it must consult with FWS. 50 C.F.R. § 402.14(a); see 16 U.S.C. § 1536(a)(2) (ESA Section 7(a)(2)). Under NEPA, the Corps must produce an environmental impact statement unless it issues a finding of no significant impact (FONSI). 40 C.F.R. § 1508.9; 42 U.S.C. § 4332(C).
When the Corps issued the NWPs challenged here, it issued accompanying Decision Documents that comprised FONSIs for each NWP and found compliance with the ESA and "minimal" environmental impact under the CWA. See A.R. Vol. 1 (Final), Docs. # 35, 37, 61, 62. In identical language in each NWP, the Corps noted:
The issuance or modification of an NWP is based on a general assessment of the effects on ... environmental factors that are likely to occur as a result of using this NWP.... As such, this assessment must be speculative or predictive in general terms. Since NWPs authorize activities across the nation, projects eligible for NWP authorization may be constructed in a wide variety of environmental settings. Therefore, it is difficult to predict all of the indirect impacts that may be associated with each activity authorized by an NWP.... Only the reasonably foreseeable direct or indirect effects are included in the environmental assessment of this NWP. Division and district engineers will impose, as necessary, additional conditions on the NWP authorization or exercise discretionary authority to address locally important factors or to ensure that the authorized activity results in no more than minimal individual and cumulative adverse effects on the aquatic environment. In any case, adverse effects will be controlled by the terms, conditions, and additional provisions of the NWP. For example, Section 7 consultation will be required for activities that may affect endangered species.
E.g., A.R. Vol. 1 (Final), Doc. # 35 at 6. Further addressing endangered species, the Corps noted that it is engaged in local efforts to address the needs of these species, that the permit system provides local flexibility to safeguard endangered species, and that General Condition 11 ensures the protection of endangered species. Id. at 18-20. The Corps did not consult with FWS before issuing the NWPs, but plans to consult with FWS as needed on a site-specific basis. In general, "the Corps believes that the procedures currently in place result in proper coordination under Section 7 of the [ESA] and ensure that activities authorized by [the NWPs] will not jeopardize the continued existence of any listed threatened and endangered species." Id. at 18-19.
The Corps has made a number of local efforts to protect the panther.2 In 2000, the Corps prepared, in conjunction with FWS, the Southwest Florida Environmental Impact Statement, which provides a generalized review of permitting practices, draft general permit review criteria going forward, and a map of panther habitat. A.R. Vol. 3, Doc. # 158. Also in 2000, the Corps and FWS agreed to final interim Standard Local Operating Procedures for Endangered Species (SLOPES). A.R. Vol. 3, Doc. # 157 (FWS letter presenting agreement), available at http://www. saj.usace.army. mil/permit/End angered_Species/PantherÏssues/panther_index.htm. SLOPES outlines general procedures for ESA Section 7 consultations on dredge-and-fill permits. It also includes a map, to be periodically updated, showing a panther "consultation area."3 Id. at Enclosure 1. Panthers may be present in this area, and development projects within this area should be "scrutinized to determine if there is a potential for effects to panthers." Id. at 2.
In August 2003, the Corps announced that it was adopting a "Florida Panther Key" to be used as an interim tool (until FWS produced a newer regulatory tool then under development) to determine whether ESA Section 7 consultation is necessary for a given project. See Implementation of a Panther Key and a Proposed Additional Regional Condition to Nationwide Permits 12, 14, 39 and 40, http://www.saj.usace.army.mil/permit/Endangered_Species/PantherÏssues/Panther_Key.pdf. The key combines the SLOPES map with a decisional tree. For example, a proposed project located more than two miles from a previously observed panther location4 and more than one mile from land "suitable for panther dispersal" would be deemed to have "no effect" on panthers. Id. This key was not subjected to public comment.5
The Corps has also supplemented the challenged NWPs to protect panther habitat. In May 2002, the Corps supplemented NWPs 14 and 39 to exclude any activity in the Belle Meade and Golden Gate Estates areas. A.R. Vol. 3, Docs. # 139a, 139c. In June 2004, the Corps supplemented all four challenged NWPs to require that anyone planning to use these NWPs in the panther consultation area must provide advance notice to the Corps. See Implementation of an Additional Regional Condition to Nationwide Permits 12, 14, 39 and 40, http://www.saj. usace.army.mil/permit/Endang ered_Species/Panther Ïssues /PNön%2 0NWPt;hreshold elimination July 2004.pdf.6 The Corps proffers that this requirement, in tandem with...
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