N. Plains Res. Council v. U.S. Army Corps of Eng'rs

454 F.Supp.3d 985

NORTHERN PLAINS RESOURCE COUNCIL, et al., Plaintiffs,

v.U.S. ARMY CORPS OF ENGINEERS, et al., Defendants,TC Energy Corporation, et al., Intervenor-Defendants,State of Montana, Intervenor-Defendant,American Gas Association, et al., Intervenor-Defendants.

CV-19-44-GF-BMM

United States District Court, D. Montana, Great Falls Division.

Signed April 15, 2020

Timothy M. Bechtold, Bechtold Law Firm, Missoula, MT, Douglas P. Hayes, Pro Hac Vice, Eric E. Huber, Sierra Club, Boulder, CO, Cecilia D. Segal, Pro Hac Vice, Jaclyn H. Prange, Pro Hac Vice, Natural Resources Defense Council, San Francisco, CA, Jared Michael Margolis, Pro Hac Vice, Center for Biological Diversity, Eugene, OR, Amy R. Atwood, Pro Hac Vice, Center for Biological Diversity, Portland, OR, for Plaintiffs.

Benjamin James Grillot, Kristofor R. Swanson, U.S. Department of Justice, Washington, DC, Bridget K. McNeil, U.S. Department of Justice, Denver, CO, Mark Steger Smith, U.S. Attorney's Office, Billings, MT, for Defendants.

Jeffery J. Oven, Mark L. Stermitz, Crowley Fleck PLLP, Brianne C. McClafferty, William W. Mercer, Holland & Hart, Billings, MT, Jeffrey M. Roth, Crowley Fleck PLLP, Missoula, MT, Peter R. Steenland, Pro Hac Vice, Peter Christopher Whitfield, Pro Hac Vice, Sidley Austin LLP, Deidre G. Duncan, Pro Hac Vice, Karma B. Brown, Pro Hac Vice, Hunton Andrews Kurth LLP, Washington, DC, Robert Thomas Cameron, Timothy C. Fox, Jeremiah R. Langston, Montana Attorney General, Helena, MT, for Intervenor-Defendants.

ORDER

Brian Morris, Chief District Judge

Northern Plains Resource Council, et al. ("Plaintiffs") filed this action to challenge the decision of the United States Army Corps of Engineers ("Corps") to reissue Nationwide Permit 12 ("NWP 12") in 2017. (Doc. 36.) Plaintiffs allege five claims in their Amended Complaint. (Id. ) Claims Three and Five relate to the Corps' verification of the Keystone XL Pipeline crossings of the Yellowstone River and the Cheyenne River. (Doc. 36 at 78-81, 85-87.) The Court stayed Plaintiffs' Claims Three and Five pending further action by the Corps. (Doc. 56 at 1.)

Plaintiffs' Claims One, Two, and Four relate to the Corps' reissuance of NWP 12 in 2017. Plaintiffs allege that the Corps' reissuance of NWP 12 violated the Endangered Species Act ("ESA"), the National Environmental Policy Act ("NEPA"), and the Clean Water Act ("CWA"). (Doc. 36 at 73-77, 81-84.) Plaintiffs, Defendants the Corps, et al. ("Federal Defendants"), and Intervenor-Defendants TC Energy Corporation, et al. ("TC Energy") filed cross-motions for partial summary judgment regarding Plaintiffs' Claims One, Two, and Four. (Docs. 72, 87, 90.) Intervenor-Defendants the State of Montana and American Gas Association, et al., filed briefs in support of Defendants. (Docs. 92 & 93.) Amici Curiae Edison Electric Institute, et al., and Montana Petroleum Association, et al., also filed briefs in support of Defendants. (Docs. 106 & 122.)

BACKGROUND

Congress enacted the CWA to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). To that end, the Corps regulates the discharge of any pollutant, including dredged or fill material, into jurisdictional waters. See 33 U.S.C. §§ 1311, 1362(6), (7), (12). Section 404 of the CWA requires any party seeking to construct a project that will discharge dredged or fill material into jurisdictional waters to obtain a permit. See 33 U.S.C. § 1344(a), (e).

The Corps oversees the permitting process. The Corps issues individual permits on a case-by-case basis. 33 U.S.C. § 1344(a). The Corps also issues general nationwide permits to streamline the permitting process for certain categories of activities. 33 U.S.C. § 1344(e). The Corps issues nationwide permits for categories of activities that are "similar in nature, will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment." 33 U.S.C. § 1344(e)(1). Nationwide permits may last up to five years, at which point they must be reissued or left to expire. 33 U.S.C. § 1344(e)(2).

The Corps issued NWP 12 for the first time in 1977 and reissued it most recently in 2017. 82 Fed. Reg. 1860, 1860, 1985-86 (January 6, 2017). NWP 12 authorizes discharges of dredged or fill material into jurisdictional waters as required for the construction, maintenance, repair, and removal of utility lines and associated facilities. 82 Fed. Reg. at 1985-86. Utility lines include electric, telephone, internet, radio, and television cables, lines, and wires, as well as any pipe or pipeline for the transportation of any gaseous, liquid, liquescent, or slurry substance, including oil and gas pipelines. 82 Fed. Reg. at 1985. The discharge may not result in the loss of greater than one-half acre of jurisdictional waters for each single and complete project. 82 Fed. Reg. at 1985. For linear projects like pipelines that cross a single waterbody several times at separate and distant locations, or cross multiple waterbodies several times, each crossing represents a single and complete project. 82 Fed. Reg. at 2007. Activities meeting NWP 12's conditions may proceed without further interaction with the Corps. See Nat'l Wildlife Fed'n v. Brownlee , 402 F. Supp. 2d 1, 3 (D.D.C. 2005).

A permittee must submit a preconstruction notification ("PCN") to the Corps' district engineer before beginning a proposed activity if the activity will result in the loss of greater than one-tenth acre of jurisdictional waters. 82 Fed. Reg. at 1986. Additional circumstances exist under which a permittee must submit a PCN to a district engineer. See 82 Fed. Reg. at 1986. The PCN for a linear utility line must address the water crossing that triggered the need for a PCN as well as the other separate and distant crossings that did not themselves require a PCN. 82 Fed. Reg. at 1986. The district engineer will evaluate the individual crossings to determine whether each crossing satisfies NWP 12. 82 Fed. Reg. at 2004-05. The district engineer also will evaluate the cumulative effects of the proposed activity caused by all of the crossings authorized by NWP 12. Id.

All nationwide permits, including NWP 12, remain subject to 32 General Conditions contained in the Federal Regulations. 82 Fed. Reg. 1998-2005. General Condition 18 prohibits the use of any nationwide permit for activities that are likely to directly or indirectly jeopardize threatened or endangered species under the ESA or destroy or adversely modify designated critical habitat for such species. 82 Fed. Reg. at 1999-2000.

The ESA and NEPA require the Corps to consider the environmental impacts of its actions. Section 7(a)(2) of the ESA requires the Corps to determine "at the earliest possible time" whether any action it takes "may affect" listed species and critical habitat. 16 U.S.C. § 1536(a)(2) ; 50 C.F.R. § 402.14(a). If the Corps' action "may affect" listed species or critical habitat, the Corps must consult with U.S. Fish and Wildlife Service ("FWS") and/or National Marine Fisheries Service ("NMFS") (collectively, "the Services"). 16 U.S.C. § 1536(a)(2) ; 50 C.F.R. § 402.14(a). Under NEPA, the Corps must produce an environmental impact statement unless it issues a finding of no significant impact (FONSI). 42 U.S.C. § 4332(C) ; 40 C.F.R. § 1508.9.

The Corps issued a final Decision Document explaining NWP 12's environmental impacts when it reissued NWP 12 in 2017. NWP005262-5349. The Corps determined that NWP 12 would result in "no more than minimal individual and cumulative adverse effects on the aquatic environment" under the CWA. NWP005340. The Corps also concluded that NWP 12 complied with both the ESA and NEPA. NWP005324, 5340. The Decision Document comprised a FONSI under NEPA. NWP005340.

The Corps explained that its 2017 reissuance of NWP 12 complied with the ESA because NWP 12 would not affect listed species or critical habitat. NWP005324. The Corps did not consult with the Services based on its "no effect" determination. NWP005324-25. A federal district court in 2005 concluded that the Corps should have consulted with FWS when it reissued NWP 12 in 2002. Brownlee , 402 F. Supp. 2d at 9-11. The Corps initiated formal programmatic consultation with the Services when it reissued NWP 12 in 2007. NWP031044. The Corps continued the programmatic consultation when it reissued NWP 12 in 2012. Id.

LEGAL STANDARD

A court should grant summary judgment where the movant demonstrates that no genuine dispute exists "as to any material fact" and the movant is "entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Summary judgment remains appropriate for resolving a challenge to a federal agency's actions when review will be based primarily on the administrative record. Pit River Tribe v. U.S. Forest Serv. , 469 F.3d 768, 778 (9th Cir. 2006).

The Administrative Procedure Act's ("APA") standard of review governs Plaintiffs' claims. See W. Watersheds Project v. Kraayenbrink , 632 F.3d 472, 481 (9th Cir. 2011). The APA instructs a reviewing court to "hold unlawful and set aside" agency action deemed "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).

DISCUSSION

I. ENDANGERED SPECIES ACT

A. ESA Section 7(a)(2) Consultation

Section 7(a)(2) of the ESA requires the Corps to ensure any action that it authorizes, funds, or carries out is not likely to jeopardize the continued existence of any listed species or destroy or adversely modify designated critical habitat. 16 U.S.C. § 1536(a)(2). The Corps must review its actions "at the earliest possible time" to determine whether an action "may affect" listed species or critical habitat. 50 C.F.R. § 402.14(a). The Corps must initiate formal consultation with the Services if the Corps determines that an action "may affect" listed species or critical habitat. 50 C.F.R. § 402.14 ; 16 U.S.C. § 1536(a)(2). The ESA does not...