Protect Our Water v. Flowers

• Decision Date: 22 March 2004
• Docket Number: No. CIV.S-03-0986 WBS/JFM.,CIV.S-03-0986 WBS/JFM.
• Citation: 377 F.Supp.2d 844
• Parties: PROTECT OUR WATER and San Joaquin Raptor/Wildlife Rescue Center, non profit organizations, Plaintiffs, v. Lt. Gen. Robert B. FLOWERS, Commander, U.S. Army Corps of Engineers, Col. Michael J. Conrad Jr., District Engineer, Sacramento District, U.S. Army Corps of Engineers, and Diablo Grande Limited Partnership, Defendants.
• Court: U.S. District Court — Eastern District of California

377 F.Supp.2d 844

PROTECT OUR WATER and San Joaquin Raptor/Wildlife Rescue Center, non profit organizations, Plaintiffs, v. Lt. Gen. Robert B. FLOWERS, Commander, U.S. Army Corps of Engineers, Col. Michael J. Conrad Jr., District Engineer, Sacramento District, U.S. Army Corps of Engineers, and Diablo Grande Limited Partnership, Defendants.

No. CIV.S-03-0986 WBS/JFM.

United States District Court, E.D. California.

March 22, 2004.

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Mark A. Brown, Wildlife & Marine Resources Section, Environment & Natural Resources Division, U.S. Department of Justice, Washington, DC, for United States.

MEMORANDUM AND ORDER

SHUBB, District Judge.

Plaintiffs brought this action pursuant to the Clean Water Act ("CWA"), 33 U.S.C. §§ 1251 et seq.; the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531 et seq.; the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq.; and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq. to challenge the issuance by defendant U.S. Army Corps of Engineers ("Corps") to defendant Diablo Grande Limited Partnership ("Diablo Grande") of a permit for the dredge and fill of waters of the United States. Plaintiffs now move for a preliminary injunction and summary judgment on all claims; defendants have filed cross motions for summary judgment on all claims.

I. Factual and Procedural History

Plaintiff Protect Our Water ("POW") is an unincorporated association formed for the preservation of environmental resources in California. (Cmpl.¶ 11(a)). Plaintiff San Joaquin Raptor/Wildlife Rescue Center ("Center") is a non-profit membership organization formed to preserve wildlife habitat and the environment. (Id. ¶ 11(b)).

Defendants Lt. Gen. Robert B. Flowers, Commander of the Corps, and Michael J. Conrad Jr., District Engineer for the Sacramento District of the Corps, (collectively, "federal defendants") are sued in their official capacities. (Id. ¶ 19). In their official capacities, the federal defendants are generally responsible for implementing the CWA's section 404 permitting program. (Id. ¶ 19). Defendant Diablo Grande is a limited partnership that purchased a 29,500 acre site in 1980 for a planned community ("the Project") located in southwestern Stanislaus County, California. The Project consisted of five phases, to be built over 20-25 years, and included six golf courses, swim and tennis facilities, a hotel and executive conference centers, a research campus, winery and vineyard, municipal facilities, commercial centers, shops and offices, and 5,000 residential units divided into five "villages." (Pls.' Statement of Undisputed Facts ("SUF") ¶ 1). However, local entitlements for all but the first phase, Oak Flat Village ("Phase 1") were subsequently invalidated. (See A.R. 02272; 04828).

Phase 1 of the project is to be set on approximately 2,250 acres in Oak Flat Valley, located in the Salado Creek drainage. (Pls.' SUF ¶ 4). Phase 1 includes 2,000 residential homes constructed on approximately 830 acres; a town center; shopping center; public services; hotel and conference center; and resort complex constructed on approximately 70 acres; an open space area of about 1,160 acres, including two golf courses; and a road system encompassing approximately 187 acres. (Id. ¶ 5). Unit 1 of Phase 1 consists of a hotel and conference center, winery, 313 houses and an access road ("cut-across road") to the Phase 1 site from Interstate 5. (A.R.05277). Construction of Unit 1 of Phase 1 has begun. (Pl.'s SUF ¶ 9). Two golf courses have already been constructed, the cut-across road has been built, and additional work is ongoing. (Id. ¶¶ 9-10). No construction has begun on the remainder of Phase 1 or on Phases 2-5 of the Project. (Id. ¶ 11).

Since September 1992, Diablo Grande has received multiple Nationwide Permit ("NWP")¹ Number 26 authorizations from the Corps for impact to United States waters for Phase 1 of the Project. (A.R. 05355; 06821). The first of Diablo Grande's NWP requests was for the issuance of a permit for the cut-across road in September 1992. Because the cut-across road could potentially affect the endangered San Joaquin kit fox ("kit fox")², the Corps denied this request on November 13, 1992, pending completion of a consultation with the U.S. Fish and Wildlife Service ("Service") pursuant to section 7 of the ESA. (A.R.00046).

The Corps requested formal consultation with the Service concerning the effect of the proposed fill related to the construction of the cut-across road on the endangered San Joaquin kit fox. (A.R.00047). The Service issued its biological opinion regarding the permit for the cut-across road on January 10, 1995. (A.R. 00808-831).

A. 1995 Biological Opinion

In the 1995 biological opinion ("Biological Opinion"), the Service concluded that issuance of a permit to fill wetlands for construction of the cut-across road is "not likely to jeopardize the continued existence of the San Joaquin kit fox. Critical habitat has not been designated for this species; therefore, none shall be destroyed or adversely modified." (A.R.00809).³

As part of the consultation process, the Service requested that Diablo Grande perform studies, using Service protocol, of the kit fox in Oak Flat Valley. (A.R.06631-32). These surveys included walking transects, spotlighting, automatic camera stations, and scent stations. (A.R.06569). The surveys were conducted in May and June of 1993, and again in August and September of 1993. (Id.). Although the surveys found no evidence of current kit fox activity, Oak Flat Valley contains suitable habitat and potential dens for the kit fox. (Id.). The Service noted that there have been kit fox sightings within five miles of Oak Flat Village Road and Diablo Grande property. (A.R.00810). Four potential dens were found in Oak Flat Valley. (A.R.00810-11). The Service determined that Oak Flat Valley may provide a potential movement corridor to and from the grassland located west of Oak Flat Valley because of the prey availability and the proximity to known kit fox habitat. (Id.).

The Service listed possible adverse effects of Diablo Grande's construction of the cut-across road as: (1) harassment resulting from increased levels of human disturbance, and implementation of certain mitigation measures, such as excavation of kit fox dens to prevent entombment of foxes; (2) direct injury or death of individual animals by vehicle strikes resulting from increased construction related traffic, or through entrapment in open holes or trenches; (3) displacement into adjacent areas, and accompanying increased predation, exposure, starvation, or stress through disorientation, loss of shelter, and intraspecific and interspecific aggression. (A.R.00811).

The Service found that "[a]n indirect effect of the access road will be the construction of the Diablo Grande subdivision." (Id.). Although the Diablo Grande land use plan indicated that approximately 12,000 acres would be "Conservation Areas," the Service expressed the belief that the development of the entire Diablo Grande project would remove approximately 11,708 acres of potential kit fox denning and foraging habitat, and could further fragment kit fox populations. (Id.).

The Service also considered the impact of construction of the water transmission line for which Diablo Grande sought a permit in October 1994, and determined that construction might result in temporary disturbance of a potential kit fox movement corridor. (A.R.00812). Preclusion of use of the movement corridors would further fragment the existing range of the kit fox. (Id.). Habitat fragmentation, according to the Service, is the leading cause of extinctions of populations worldwide, and the Service warned that "[c]omplete fragmentation in this area of the kit fox range would probably lead to extinction of the population north of the project area...." (Id.). Because of the possible fragmentation of the kit fox population as a result of the construction, the Service recommended implementation of a program to preserve the kit fox corridor through Oak Flat Valley. (Id.).

The incidental take statement included in the Biological Opinion anticipated "take ... as a result of fill for the construction of the access road ... [and] development of the Diablo Grande subdivision." (A.R.00814). The Service estimated that construction of the access road "may result in one (1) kit fox being harmed or killed." (Id.). But "[t]he Service consider[ed] the number of animals subject to harassment from noise vibrations, and capture or excavation of dens and burrows to be impracticable to estimate." (Id.). To minimize the impacts of incidental take, and to be exempt from the take prohibitions of section 9 of the ESA, the Corps and Diablo Grande were required to implement "reasonable and prudent measures." (A.R.00814). These measures included: (1) mitigation for anticipated direct impacts on the kit fox via acquisition of 125 acres of grassland habitat to be held in perpetuity by either the Department of the Interior, or an agency approved by the Department of the Interior and the Service, and (2) implementation of the Standardized Recommendations for Protection of the San Joaquin Kit Fox. Also, Diablo Grande was required to prepare and implement a plan to offset the indirect effects (the Diablo Grande subdivision and associated facilities) of the construction. (A.R.00814-16).

While the consultation with the Service was still ongoing, the Corps authorized, under NWP 26, impacts to .82 acres of United States waters for development of the Ranch Golf Course. (A.R.05355). After the Service issued the Biological Opinion, the Corps authorized, under NWP 26, the following: (1) impacts to 3.16 acres of United States waters for construction of Diablo Grande Parkway and a water transmission pipeline; (2) impacts to .57 acres of...