Northwest Envtl. Def. Ctr. v. United States Army Corps of Eng'rs

• Decision Date: 19 September 2011
• Docket Number: No. CV 10–1129–AC.,CV 10–1129–AC.
• Citation: 817 F.Supp.2d 1290
• Parties: NORTHWEST ENVIRONMENTAL DEFENSE CENTER, Plaintiff, v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants.
• Court: U.S. District Court — District of Oregon

817 F.Supp.2d 1290

NORTHWEST ENVIRONMENTAL DEFENSE CENTER, Plaintiff,

v.UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants.

No. CV 10–1129–AC.

United States District Court, D. Oregon.

Sept. 19, 2011.

Allison Michelle Laplante, Andrew M. Hawley, Thomas Charles Buchele, Portland, OR, for Plaintiff.

Coby Healy Howell, U.S. Department of Justice c/o U.S. Attorney's Office, Portland, OR, Austin D. Saylor, Kenneth D. Rooney, U.S. Department of Justice, Washington, DC, for Defendants.

OPINION AND ORDER

ACOSTA, United States Magistrate Judge:

Plaintiff Northwest Environmental Defense Center (“NEDC”) brought this action against the United States Army Corps of Engineers (“Corps”) and the National Marine Fisheries Service (“NMFS”) (collectively, “Defendants”), challenging the Corps' issuance of a five-year regional general permit (“RGP”), which authorizes limited commercial in-stream gravel mining on the Chetco River in southwest Oregon. In its Amended Complaint, NEDC alleges the Corps violated the Federal Advisory Committee Act (“FACA”), the Administrative Procedure Act (“APA”), the Clean Water Act (“CWA”), and the National Environmental Policy Act (“NEPA”) in issuing the RGP. NEDC also alleges that NMFS's Biological Opinion (“BiOp”) for the RGP and its attendant Incidental Take Statement (“ITS”) violate the Endangered Species Act (“ESA”).

On August 16, 2011, NEDC filed a Motion for Temporary Restraining Order and/or Preliminary Injunction (doc. # 49), seeking to enjoin the Corps' authorization of any in-stream gravel mining activities on the Chetco River until the court resolves the merits of NEDC's claims and Defendants comply with the law. ¹ On August 18, 2011, Defendants filed a Motion to Strike the Declaration of Mr. Carl Page (doc. # 58). The court heard oral argument on August 23, 2011. Based on Defendants' representation that no mining activities would occur on the Chetco River before September 2, 2011, the court denied as moot NEDC's motion for an emergency temporary restraining order. For the reasons that follow, the court GRANTS Defendant's Motion to Strike the Declaration of Carl Page, and DENIES NEDC's Motion for a Preliminary Injunction.

Overview

The Chetco River, in southwest Oregon, is designated critical habitat for Southern Oregon/Northern California Coasts (“SONCC”) coho salmon, which are listed as threatened under the ESA. 70 Fed. Reg. 37,160 (June 28, 2005) (listing SONCC coho as threatened); 70 Fed. Reg. 52,630 (Sept. 2, 2005) (critical habitat). Historically, the Chetco River produced a “fair sized” coho salmon run. See Biological Opinion for the Regional General Permit for Gravel Mining in the Chetco River in the Chetco River (Corps No.: NWP 2008–00071), at 11 (June 28, 2011) (“BiOp”). Today, it produces only 50 to 100 SONCC coho salmon adult spawners annually. Although the Chetco River population of SONCC coho salmon has increased in recent years, the current population is extremely low. BiOp at 10–11.

Over the last century, the Chetco River has been severely impacted by timber harvest, road building, rural and urban development, and gravel mining. Gravel extraction, which began early in the twentieth century, peaked the 1970s and 1980s with as many as fifteen companies operating per year. These operations extracted millions of cubic yards of gravel. As a result of many years of unregulated gravel extraction, the geomorphic condition of the lower Chetco River is degraded.

In-stream gravel mining on the Chetco negatively affects ESA-listed salmon in a number of ways, including direct harm to salmonids from the operation of heavy machinery in the river; loss of spawning, rearing, resting, and staging habitat; and migration delays and blockages. These impacts are a result of changes to the waterways including channel widening, shallowing, or ponding; loss of channel stability; loss of pool/riffle structure; increased turbidity and sediment transport; increased bank erosion and/or stream bed downcutting; and loss or degradation of riparian habitat. There has been no in-stream gravel mining on the Chetco River for the past two years, which has resulted in improvements in the geomorphic condition of the river. BiOp at 16.

I. The Regional General Permit

On July 15, 2011, the U.S. Corps of Engineers issued a five-year Regional General Permit (“RGP”) under Section 404 of the Clean Water Act, which authorizes limited commercial in-stream gravel mining at three specific project locations within an eight-mile stretch of the lower Chetco River. A RGP is an authorization under the CWA that the Corps issues on a regional basis for a category of activities that are substantially similar in nature and cause only minimal individual and cumulative impacts on the aquatic environment. 33 C.F.R. § 322.2(f); EA at 1. In support of the RGP, the Corps produced an Environmental Assessment and Statement of Findings for Regional General Permit for Commercial Gravel Mining Chetco River, Curry County, Oregon (“EA”). The RGP serves as the NEPA document for the RGP, as well as the CWA Section 404(b)(1) Evaluation and Determination.

The purpose of the Chetco River RGP is “to obtain aggregate for industrial and commercial uses including provision of materials for regional road projects.” EA at 11. Generally, gravel bar mining is conducted to harvest a specific type of aggregate that meets “certain standards” for road and other construction projects. EA at 55. In contrast to gravel from upland sources, which requires “more processing and sorting to obtain the necessary material for a particular construction job,” river gravel is “broken and sorted” through “the natural processes of materials being transported down a stream.” EA at 55.

In consultation with NMFS, the Corps included a variety of measures in the RGP to limit impacts to the environment and maintain existing gravel bars, including: (1) requiring a reserve volume of 26,000 cubic yards be met before excavation may occur in any given year; (2) if the 26,000 cubic yard reserve is not met in one year, mining may not occur for that year and the total reserve volume for the following year must exceed 52,000 cubic yards for extraction to occur; (3) an 80% cap on any volume above 26,000 cubic yards with the remaining 20% remaining in-stream to enhance the aquatic environment; (4) guidelines and numerous restrictions to retain gravel bar form and maintain existing aquatic habitats; (5) bar allocations; (6) guidelines on construction, extraction, vehicle staging and stormwater management; (7) gravel bar plantings to stabilize the bars; (8) limiting the work window to July 15, through September 30, when fish populations are not found in significant numbers in the Chetco River; (9) adaptive management strategies that retain authority in an annual implementation team to modify the extraction based upon the current physical and biological characteristics of the river and extraction sites; (10) requirements for detailed surveys and reports that monitor gravel bar conditions and volumes before, during, and after extraction, (11) requirements for monitoring annual recruitment volumes, and multi-year evaluations in years four and five of the RGP; and (12) extensive enhancement actions aimed at restoring, enhancing and maintaining summer and winter habitat at Jack Creek and the Social Security Bar. See RGP 1–10.

II. The Biological Opinion

On June 28, 2011, NMFS issued a biological opinion (“BiOp”) under Section 7 of the Endangered Species Act, addressing the effects of the RGP on listed SONCC coho salmon. NMFS reviewed the proposed RGP, including the methods and processes used to determine annual extraction amounts. BiOp at 2. NMFS also analyzed the specific restrictions in the RGP, and its monitoring plan. See e.g., BiOp at 5. (pre- and post-harvest surveys, post excavation reports, and multi-year evaluations). After examining the effects of the RGP on listed species and critical habitat, NMFS concluded that the proposed in-stream mining would not jeopardize the continued existence of the SONCC coho salmon or adversely modify its critical habitat. BiOp at 21–25.

NMFS concluded, however, that a “taking” of juvenile coho could occur under the RGP as a result of habitat modification and the twelve heavy equipment crossings allowed per year under the plan. BiOp at 24, 31. With respect to in-water equipment operations, NMFS explained:

At some point during the twelve crossings per year, a few juveniles are likely to be present. Furthermore, since no other cover is present, startled juveniles may hide in the interstitial spaces of gravel and cobbles where the equipment is driving, thus increasing their chance of being injured.

Considering the amount of habitat affected (500 square feet) per crossing, the low abundance of SONCC coho salmon juveniles, the low value of affected habitat, the number of crossings per year (12), and the probability of juveniles being crushed (low but not discountable), heavy equipment crossings are likely to expose only a small number of SONCC coho salmon juveniles per year to an increase in likelihood of injury, with death of only a few individuals over the term of the permit. BiOp at 24. NMFS also determined that the RGP would result in take associated with habitat modification. In particular, NMFS found that the “effects of gravel removal associated with the proposed action are reasonably certain to slow the rate of improvement of the geomorphic conditions, habitat features, coho salmon limiting factors (such as overwintering habitat), and coho salmon juvenile survival.” BiOp at 25. The project will result in a “slowing the improvement of SONCC coho salmon carrying capacity and abundance.” BiOp at 31.

Accordingly, NMFS issued an incidental take statement (“ITS”) pursuant to Section 7( o ) of the ESA, 16 U.S.C. 1536( o ), and its implementing regulations. BiOp at 31. Due to a lack of data and the impracticalities of monitoring individual...