Soc'y v. U.S. Army Corps of Eng'rs
| Decision Date | 30 September 2018 |
| Docket Number | NO. 7:17-CV-162-FL,7:17-CV-162-FL |
| Parties | NATIONAL AUDUBON SOCIETY, Plaintiff, v. UNITED STATES ARMY CORPS OF ENGINEERS, COLONEL ROBERT J. CLARK in his official capacity as District Commander of the Wilmington District, and THE TOWN OF OCEAN ISLE BEACH, Defendants. |
| Court | U.S. District Court — Eastern District of North Carolina |
This matter is before the court on plaintiff's motion to complete and supplement the administrative record. (DE 26). The motion has been fully briefed, and the issues presented are ripe for ruling. For reasons noted, the motion is granted in part and denied in part.
Plaintiff initiated this action August 14, 2017, seeking review of decision by defendant United States Army Corps of Engineers ("USACE") to allow defendant The Town of Ocean Isle ("Ocean Isle") to construct a type of rock wall known as a "terminal groin" in that part of Ocean Isle Beach immediately southwest of Shallotte Inlet ("terminal groin project"). Particularly, plaintiff seeks review of Record of Decision ("ROD") issued by USACE, which ROD granted to Ocean Isle a permit ("section 404 permit") allowing discharge of dredged or fill material into navigable waters, pursuant to section 404 of the Clean Water Act, 33 U.S.C. § 1344, et seq. ("CWA"). Plaintiff's challenge embraces also adequacy of a draft environmental impact statement ("DEIS") and final environmental impact statement ("FEIS") prepared by defendant USACE in support of the ROD and section 404 permit, pursuant to the National Environmental Policy Act, 42 U.S.C. § 4331, et seq. ("NEPA"). Plaintiff amended its complaint as of right August 28, 2017, to join Ocean Isle as a defendant, in addition to other amendments throughout.
Plaintiff is a membership organization that works to conserve and restore habitat for wildlife, with a particular focus on birds and bird habitat. Defendant USACE is an agency within the United States Department of Defense charged with regulating construction in the waters of the United States, pursuant to the CWA, and defendant Colonel Robert J. Clark ("Clark," collectively "federal defendants") is district commander at USACE's Wilmington district office. Defendant Ocean Isle is an incorporated town located in Brunswick County, North Carolina. Ocean Isle is the permittee for the terminal groin project.
Plaintiff alleges that the federal defendants approved the terminal groin project without proper consideration of environmental consequences. In the first claim for relief, plaintiff alleges that USACE violated NEPA where it failed to evaluate fairly the comparative merits of studied alternatives. In the second claim for relief, plaintiff alleges USACE failed to include certain information in NEPA documents that was essential to a reasoned choice among alternatives, in violation of regulations promulgated by the Council on Environmental Quality ("CEQ regulations"). In the third claim for relief, plaintiff alleges that USACE failed to evaluate "secondary effects" of the studied alternatives, in violation of the CWA and CEQ regulations. In the fourth claim for relief, plaintiff alleges that USACE selected an alternative other than the Least Environmentally Damaging Practicable Alternative ("LEDPA"), in violation of the CWA. Finally, in the fifth claim for relief,plaintiff alleges USACE failed to "independently evaluate" environmental information submitted by Coastal Planning and Engineering of North Carolina, Inc. ("CPE"), in violation CEQ regulations. In each claim for relief, plaintiff proceeds under the judicial review provisions of the Administrative Procedure Act ("APA"), 5 U.S.C. § 701, et seq.
Pursuant to this court's case management order, the federal defendants served on December 15, 2017, the proposed administrative record. After the federal defendants denied plaintiff's request to include in the administrative record additional documents, plaintiff filed the instant motion to complete and supplement the administrative record.
The facts pertinent to the instant motion may be summarized as follows. Ocean Isle Beach is a barrier island in southwest Brunswick County, North Carolina. (DE 7 ¶ 11; DE 20 ¶ 7; DE 21 ¶ 7). The island spans approximately 5.6 miles west-to-east from Tubbs Inlet to Shallotte Inlet and 0.6 miles north-to-south from the Intracoastal Waterway to the Atlantic Ocean. (Id.). Holden Beach, also a barrier island, lies to the east of Shallotte Inlet, which connects the Atlantic Ocean to the Intracoastal Waterway before joining Shallotte River. (Id.). Ocean Isle Beach and Holden Beach may provide important habitat for birds and other wildlife, including the Charadrius melodus and Calidris canutus, which are federally protected shorebirds. (Id. ¶¶ 15, 16, 18). The pertinent area surrounding the proposed location of the terminal groin is depicted below:
Image materials not available for display.
(Id. ¶ 13).
The Ocean Isle shoreline at Shallotte Inlet has always moved based on the alignment of the main channel in the inlet between Ocean Isle and Holden Beach. (Id. ¶ 12). As the main channel moves closer to Holden Beach, the eastern end of Ocean Isle erodes. (Id.). When the channel moves toward the middle of the inlet, both Ocean Isle and Holden Beach accrete. (Id.). Defendant Ocean Isle sought federal and state permits to allow construction of the terminal groin in an effort to control erosion and avert loss of beachfront land. (Id. ¶ 19; DE 30 at 26).
In 2011 or early 2012, defendant Ocean Isle entered into an agreement with CPE, where,according to Ocean Isle, CPE agreed to perform a feasibility study to assist Ocean Isle in determining whether to pursue permits and construction of a terminal groin near Shallotte Inlet. (DE 7 ¶ 22; DE 20 ¶ 22). CPE prepared a modeling analysis and engineering report, dated May 2012, pursuant to its agreement with Ocean Isle. (Id. ¶ 23; DE 30-1).
On September 15, 2014, Ocean Isle applied to defendant USACE for a section 404 permit, in furtherance of its plan to construct a terminal groin near Shallotte Inlet. (DE 30-3). USACE hired CPE as third party contractor to prepare an environmental impact statement in furtherance of efforts to evaluate Ocean Isle's permit application. (DE 7 ¶ 24; DE 20 ¶ 24; DE 21 ¶ 24; DE 30 at 1).
As review of the instant terminal groin project was pending, USACE simultaneously conducted proceedings addressing broadly similar permit applications initiated by other coastal towns in eastern North Carolina. Specifically, in 2014 and 2015, USACE issued draft or supplemental environmental impact statements ("EIS") for all four projects. USACE finalized the EIS for Bald Head Island in 2014, followed by the DEIS for Holden Beach in 2015, and the FEIS for Ocean Isle and Figure Eight Island in 2016. (DE 38 at 16 ()).
In January 2015, USACE issued the DEIS for the instant terminal groin project, as prepared by CPE, and accepted comments between January 23, 2015 and March 16, 2015. (DE 30 at 12). Following close of the DEIS comment period, USACE issued the FEIS on April 29, 2016. (DE 30).
Defendant USACE accepted comments regarding the FEIS in May 2016. On May 31, 2016, the Southern Environmental Law Center ("SELC") submitted comments, which, in relevant part, criticize USACE's use of the "Delft3D" model to analyze the environmental effects of the various studied alternatives on erosion and shoreline change. (DE 34 at 6-8). The SELC noted that whileUSACE used the Delft3D model as part of the Figure Eight Island project, which also involved construction of a terminal groin, (see DE 28), USACE used different methods to analyze data generated by the Delft3D model for the terminal groin project. (DE 34 at 8).
Defendant USACE's responses to plaintiff's comments appear in an appendix to the ROD. (See DE 31 at 60-68). None of the responses address plaintiff's objections to the FEIS's use of the Delft3D model. (See id.). On February 27, 2017, defendant USACE issued the ROD, which grants to defendant Ocean Isle a section 404 permit allowing construction of the terminal groin project. (DE 31 at 2).
After the ROD issued, CPE and Ocean Isle exchanged e-mails on April 19, 2017, (DE 29-2), and May 17, 2017, (DE 29-3), wherein CPE and Ocean Isle discuss payment for CPE's services and possibility of entering a future contract related to Ocean Isle's ongoing management of the Shallotte Inlet.
In reviewing agency action pursuant to the Administrative Procedure Act ("APA"), "the court shall review the whole record." 5 U.S.C. § 706. "Judicial review of administrative action is generally confined to the administrative record." Fort Sumter Tours, Inc. v. Babbit, 66 F.3d 1324, 1335 (4th Cir. 1995). Further, "the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court." Fayetteville Area Chamber of Commerce v. Volpe, 515 F.2d 1021, 1024 (4th Cir. 1975) (internal quotations omitted); see Bar MK Ranches v. Yuetter, 994 F.2d 735, 740 (10th Cir. 1993) ().Although the APA does not expressly define what constitutes the "whole record . . . review is to be based on the full administrative record that was before the [decisionmaker] at the time he made his decision." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971).
Plaintiff moves to complete and supplement the administrative record by adding the FEIS for the Village of Bald Head Island Shoreline Protection Project ("Bald Head project"), (DE 27-2); the FEIS for the Figure Eight Shoreline Protection Project ("Figure Eight project"), (DE 28; DE 29); the DEIS for the Holden Beach East End Shore Protection Project ("Holden Beach project"), (DE 29-1); and emails...
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