Coal. to Protect Puget Sound Habitat v. U.S. Army Corps. of Eng'rs

466 F.Supp.3d 1217

The COALITION TO PROTECT PUGET SOUND HABITAT, Plaintiff,

v.U.S. ARMY CORPS. OF ENGINEERS, et al., Defendants,andTaylor Shellfish Company, Inc., Intervenor - Defendant.

Center for Food Safety, Plaintiff,

v.U.S. Army Corps of Engineers, et al., Defendants,andPacific Coast Shellfish Growers Association, Intervenor - Defendant.

Case No. C16-0950RSL

Case No. 17-1209RSL

United States District Court, W.D. Washington, at Seattle.

Signed June 11, 2020

Amy van Saun, Pro Hac Vice, George A. Kimbrell, Center for Food Safety, Portland, OR, for Plaintiff.

Dedra S. Curteman, Mark A. Brown, Peter K. Dykema, US Department of Justice, Kent E. Hanson, US Department of Justice Environmental Defense Section, Washington, DC, for Defendants.

Amanda Morse Carr, Samuel Wilmore Plauche, IV, Jesse G. DeNike, Plauche & Carr LLP, Seattle, WA, for Intervenor - Defendant.

ORDER VACATING NWP 48 IN THE STATE OF WASHINGTON

Robert S. Lasnik, United States District Judge On October 10, 2019, the Court, after considering the cross-motions for summary judgment filed by the parties and intervenors in the above-captioned matters as well as the Swinomish Indian Tribal Community's submission in a related case, C18-0598RSL (Dkt. # 28), found (a) that there is insufficient evidence in the administrative record to support the U.S. Army Corps of Engineers’ conclusion that the 2017 reissuance of Nationwide Permit ("NWP") 48 would have minimal individual and cumulative impacts on the aquatic environment for purposes of the Clean Water Act ("CWA") and (b) that the Corps’ environmental assessment related to NWP 48 did not satisfy the requirements of the National Environmental Policy Act ("NEPA"). In issuing NWP 48, the Corps opted to interpret the "similar in nature" requirement of 33 U.S.C. § 1344(e)(1) broadly, with the result that it was virtually impossible to evaluate the impacts of "commercial shellfish aquaculture activities" in a way that captured all of the varying operations in the varying ecosystems throughout the nation. The Court found that the Corps’ promise that its District Engineers would consider the impacts of the permitted activities did not satisfy the agency's obligation "to thoroughly examine the environmental impacts of permitted activities" before issuing a nationwide permit. Ohio Valley Envtl. Coal. v. Hurst , 604 F. Supp.2d 860, 901-02 (S.D.W.Va. 2009). The Corps’ issuance of a nationwide permit, at least with respect to activities in the waters of the State of Washington, was found to be arbitrary and capricious and not in accordance with NEPA or the CWA.

Despite the statutory direction to "set aside agency action" that is found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," the Court has discretion to leave the unlawful agency action in place while the agency corrects the identified errors or deficiencies. 5 U.S.C. § 706(2). The circumstances in which a remand without vacatur is appropriate are "rare," Humane Soc'y v. Locke , 626 F.3d 1040, 1053 n.7 (9th Cir. 2010), or "limited," Cal. Communities Against Toxics, v. U.S. Envtl. Prot. Agency , 688 F.3d 989, 992 (9th Cir. 2012). Because the APA creates a "presumption of vacatur" if an agency acts unlawfully, the presumption must be overcome by the party seeking remand without vacatur. Alliance for the Wild Rockies v. U.S. Forest Serv. , 907 F.3d 1105, 1121-22 (9th Cir. 2018). See also Nw. Envt'l Advocates v. U.S. Envt'l Protection Agency , 2018 WL 6524161, at *3 (D. Ore. Dec. 12, 2018) ("Because vacatur ... is the ordinary remedy, the Court concludes [that the party opposing vacatur] bears the burden of demonstrating vacatur is inappropriate.").¹

When determining whether to vacate an agency action, the courts in the Ninth Circuit consider (1) the seriousness of an agency's errors and (2) the "disruptive consequences of an interim change that may itself be changed." Cal. Communities , 688 F.3d at 992 (quoting Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm'n , 988 F.2d 146, 150-51 (D.C. Cir. 1993) ).

Put differently, courts may decline to vacate agency decisions when vacatur would cause serious and irremediable harms that significantly outweigh the magnitude of the agency's error.... Courts have considered remand without vacatur to be appropriate where serious irreparable environmental injury would result from vacatur.... In addition to environmental harm, it is appropriate to consider other practical concerns when weighing the consequences of vacatur. Cal Communities , 688 F.3d at 993-94 (considering delay to "much needed power plant," possibly resulting in blackouts, to be a "severe" consequence of vacatur that may be considered in balance).

AquAlliance v. U.S. Bureau of Reclamation , 312 F. Supp. 3d 878, 881 (E.D. Cal. 2018) (internal quotation marks and citations omitted). In the context of environmental regulation, the Ninth Circuit considers (a) whether vacating the invalid rule would risk environmental harm and (b) whether the agency could legitimately adopt the same rule on remand (or whether the flaws were so fundamental that it is unlikely the same rule would result after further analysis). Pollinator Stewardship Council v. U.S. E.P.A. , 806 F.3d 520, 532 (9th Cir. 2015). Courts "leave an invalid rule in place only when equity demands that we do so." Id. (internal quotation marks and citation omitted). See also All. for the Wild Rockies v. United States Forest Serv. , 907 F.3d 1105, 1121 (9th Cir. 2018).

Having considered the submissions of the parties, amici, the Swinomish Indian Tribal Community, and Nisbet Oyster Co., Inc., regarding the appropriate remedy for the agency's unlawful actions and having heard the arguments of counsel, the Court finds as follows:

1. Seriousness of the Agency's Errors

The Corps argues that, although the Court found that it violated the CWA and NEPA by failing to take a hard look at the anticipated environmental impacts of NWP 48, the consequences of its unlawful actions are not serious enough to justify vacatur because no environmental harm will, in fact, occur if activities authorized under 2017 NWP 48 are allowed to continue.² The Corps maintains that, even if it cannot devolve its obligations under the CWA and NEPA to the District Engineer, the project-by-project verification process that is required in the State of Washington³ effectively ensures that the aquaculture operations authorized by NWP 48 have minimal environmental impacts.

As of October 10, 2019, the Corps had verified 898 projects in the State of Washington under 2017 NWP 48, encompassing 35,800 acres. Case No. C16-0950RSL, Dkt. # 63-2 at ¶ 7. Before verifying a project, a District project manager reviews the site-specific information provided with the application as well as the remainder of the permit file (including all prior authorizations), memorializing his or her findings in a "Memorandum for Record." Case No. C16-0950RSL, Dkt. # 63-2 at ¶¶ 12-13. All projects in Washington are subject to the terms and conditions of a Programmatic ESA Consultation which are intended to ensure "avoidance and minimization of impacts to endangered species and critical habitat, as established by analyses performed in the Biological Assessment by the Corps and Biological Opinions for the Programmatic ESA Consultation by the National Marine Fisheries Service and the U.S. Fish and Wildlife Service (the ‘Services’)." Case No. C16-0950RSL, Dkt. # 63-2 at ¶¶ 7, 16-17. In addition, the District inspects a percentage of all activities authorized under NWP 48 each year to make sure that they are being conducted in accordance with the representations made in the application and all terms and conditions imposed on the permittee.⁴

The District has provided two partial case files "that are representative of typical NWP 48 verifications." Case No. C16-0950RSL, Dkt. # 63-2 at ¶ 11. The first verification authorizes 211 acres of on-bottom Pacific oyster cultivation on a 213 acre project area in Willapa Bay. Two acres of slough within the project site would not be cultivated. The area had previously been cultivated by a different operator under 2007 NWP 48. Case No. C16-0950RSL, Dkt. # 63-6 at 11. The District recognized that "[e]elgrass is present throughout the project area" with "denser concentrations" marked on a map and that restarting cultivation in the area "would degrade the eelgrass beds to some degree through direct removal of the eelgrass from trampling and mechanical harvest and from increased turbidity and burying during mechanical harvest." Case No. C16-0950RSL, Dkt. # 63-6 at 10-11. No compensatory mitigation for unavoidable impacts to aquatic resources was required "because the on-going activity was previously authorized." Case No. C16-0950RSL, Dkt. # 63-6 at 12. The District determined that the project should be verified under 2017 NWP 48 and that the Corps had satisfied its obligations under the ESA through the imposition of the terms and conditions arising from the earlier programmatic consultation with the Services. Case No. C16-0950RSL, Dkt. # 63-6 at 11-12.⁵ Although the Memorandum for Record makes the requisite finding that the proposed "activity will result in no more than minimal individual and cumulative adverse effects on the aquatic environment," Dkt. # 63-6 at 16, there is no indication that the agency performed a NEPA- or CWA-level impact analysis. Thus, the Corps’ failure to take a hard look at the environmental impacts of shellfish aquaculture (other than, arguably, the potential impacts to endangered or threatened species under the ESA) was not corrected at the District level. In fact, the District declined to require any mitigation for the expected loss of eelgrass because the Corps permitted, on a nationwide basis, operations affecting submerged aquatic vegetation as long as the area had previously been used for commercial shellfish aquaculture.

The second verification authorizes a 3.6 acre intertidal...