San Francisco Baykeeper v. Army Corps of Engineers
| Decision Date | 12 August 2002 |
| Docket Number | No. C 01-0602 CW.,C 01-0602 CW. |
| Citation | 219 F.Supp.2d 1001 |
| Court | U.S. District Court — Northern District of California |
| Parties | SAN FRANCISCO BAYKEEPER, a project of Waterkeepers Northern California; and Center for Marine Conservation, Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS, a federal agency; United States Fish & Wildlife Service, a federal agency; and National Marine Fisheries Service, a federal agency, Defendants. |
Deborah A. Sivas, Michael R. Lozeau, Earth Justice Legal Defense Fund, Stanford, CA, for San Francisco Baykeeper, a project of waterkeepers Northern California, Center for Marine Conservation.
Charles M. O'Connor, U.S. Attorney's Office, Environment & Natural Resources Unit, San Francisco, CA, Seth M. Barsky, Wildlife and Marine Resources Section, John C. Cruden, S. Jay Govindan, USDJ-Environmental & Natural, Resources Division, Wildlife & Marine Resources Section, Washington, DC, for U.S. Army Corps of Engineers, U.S. Fish and Wildlife Service, National Marine Fisheries Service.
ORDER DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANTS' CROSS MOTION FOR SUMMARY JUDGMENT
The case involves the environmental impact of two construction projects initiated by the Port of Oakland (Port). The first project, the Oakland Harbor Navigation Improvement Project (dredging project), is jointly funded by the Port and Defendant United States Army Corps of Engineers (Corps). It will deepen the channels and berths at the Port from forty-two feet to fifty feet. The second project, the berths project, will create four new container berths and two new cargo terminals at the Port. The berths project is dependant on receipt of a Corps permit to dredge and fill as necessary to create the new berths.
Because of the Corps' involvement in the projects, the consultation provisions of both the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., and the Endangered Species Act (ESA), 16 U.S.C. § 1531 et seq., are implicated. Plaintiffs move for summary judgment that Defendant federal agencies violated both NEPA and the ESA by failing adequately to analyze and disclose the potential environmental consequences of the projects. Defendants oppose the motion and cross-move for summary judgment that their consultation and analysis satisfied their statutory obligations. The matter was heard on July 26, 2002. Having considered all of the papers filed by the parties and oral argument on the motion, the Court denies Plaintiffs' motion for summary judgment (Docket # 33) and grants Defendants' cross motion for summary judgment (Docket # 49).
The dredging project was initiated because the Port's forty-two foot shipping channels and berths are too shallow to allow the latest generation of large, "post-Panamax" container ships to enter and exit the Port.1 Absent the dredging project, post-Panamax ships either would have to enter the Port "light loaded" (i.e. with reduced cargo so that they would ride high in the water) or await high tides to enter and exit the Port. Alternatively, carriers could send only older, Panamax class vessels to Oakland. In order to provide modern and efficient shipping channels that could accommodate newer vessels, the Port and the Corps proposed the dredging project, which will deepen the channels and berths to a fifty foot depth. The dredging project is funded by both the Port and the Corps.
The berths project is an independent undertaking of the Port to create four new berths, two new container terminals and a shoreline park. The Port initiated this project as "one component of the Port's ongoing efforts to modernize and develop its ship, rail, and truck cargo-handling facilities to meet the projected demand for transportation services . . . ." Corps AR 1727.2 The Corps is not undertaking any of the work in conjunction with the berths project. Rather, the Corps' authority over this project is pursuant to section 404 of the Clean Water Act, 33 U.S.C. § 1344. Pursuant to this statute, the Port must receive a permit from the Corps for any dredging, filling and construction of facilities on submerged lands.
In its capacity as the action agency with respect to the dredging project and the regulating agency with respect to the berths project, the Corps was required to satisfy statutory and regulatory obligations under NEPA and to engage in consultation with Defendant Fish and Wildlife Service (FWS) and Defendant National Marine Fisheries Service (NMFS) pursuant to section 7 of the ESA.
NEPA is the basic "national charter for protecting the environment." 40 C.F.R. § 1500.1(a). It requires all federal agencies to prepare an environmental impact statement (EIS) for "major federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(C). The responsible federal agency may first choose to prepare an environmental assessment (EA), a preliminary document which "briefly provides sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact." 40 C.F.R. § 1508.9. After considering the EA, the agency may then decide to issue either a finding of no significant impact (FONSI) or a more detailed EIS.
NEPA is procedural in nature. It does not require "that agencies achieve particular substantive environmental results." Marsh v. Or. Natural Res. Council, 490 U.S. 360, 371, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). Rather, it requires agencies to collect, analyze and disseminate information so that "the agency will not act on incomplete information, only to regret its decision after it is too late to correct." Id. Federal agencies comply with NEPA by carrying out this procedural mandate.
Section 7 of the ESA, 16 U.S.C. § 1536, requires every federal agency to ensure that any action that it funds, authorizes, or carries out is not likely to jeopardize the continued existence of any listed species or adversely modify the critical habitat of any such species. See also 50 C.F.R. § 402.01(a). FWS and NMFS (collectively, "consulting agencies") share responsibility for administering the ESA, with FWS responsible for listing terrestrial and freshwater species, 50 C.F.R. § 222.23(a), and NMFS charged with protecting marine and anadromous species, 50 C.F.R. § 227.4. See also 50 C.F.R. § 402.01(b).
If a federal agency determines that a proposed action may affect listed species or their critical habitat, the agency must initiate consultation with the appropriate consulting agency, either FWS or NMFS. 18 U.S.C. § 1536(a)(2) (codifying ESA § 7(a)(2)); see also 50 C.F.R. § 402.14(a). An action agency may satisfy the requirements of section 7(a)(2) by initiating either "informal" or "formal" consultation with the appropriate consulting agency. Informal consultation is "an optional process that includes all discussions, correspondence, etc., between the Service and the federal agency . . . designed to assist the [action agency] in determining whether formal consultation is ... required." 50 C.F.R. § 402.13(a). "If during informal consultation it is determined by the [action agency], with the written concurrence of the [consulting agency], that the action is not likely to adversely affect listed species or critical habitat, the consultation process is terminated and no further action is necessary." Id.
However, if informal consultation fails to resolve the question of harm to a listed species, the action agency must engage in formal consultation. Formal consultation procedures require the consulting agency to evaluate the effects of the proposed action on the listed species, and issue a "biological opinion" (BO), which states whether the action is likely to jeopardize the continued existence of the species (hereinafter, "jeopardy finding" or "no jeopardy finding"). 50 C.F.R. § 402.14(h)(3). The issuance of the biological opinion terminates the formal consultation process. 50 C.F.R. § 402.14(l)(1).
In February, 1998, the Corps, jointly with the Port, issued a Draft Environmental Impact Statement/Environmental Impact Report (Draft EIS) for the dredging project. Corps AR 2842-4779. In response to the Draft EIS, Plaintiffs submitted a series of comments asserting that the Corps had failed to evaluate the impact of non-native species entering the San Francisco Bay through ballast water discharges. Id. at 8106-24 (March 4, 1998); 8125-8332 (March 30, 1998); 8806-13 (April 23, 1998). The final EIS for the dredging project was published in May, 1998.
The May, 1998 Final EIS recognized that "discharge of ballast water is the primary mechanism by which exotic marine and freshwater organisms are spread around the world today" and that "the establishment of unwanted species . . . can seriously upset the existing ecological balance at the discharge location." Id. at 7511. The Final EIS listed several variables that could affect the likelihood that "any particular discharge of ballast water will lead to the introduction of an invasive species." Id. at 7512. Although the Corps identified several relevant variables, it found that there were too many "uncertainties along the potential path of introduction" to quantify the risk of establishment of an invasive species through ballast water discharge. Id. at 7514.
Instead, the Corps focused on volume of ballast water discharged, on the theory that a reduction in quantity of ballast water would correlate to a reduced risk of invasive species transported in ballast water. Id. at 7513. The Corps concluded that, upon completion of the dredging project in 2010, total ballast water discharged would be less than if no project were undertaken. Id. The Corps based this conclusion on the projected...
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