Puente v. U.S. Army Corps of Eng'rs

683 F.Supp.3d 1

EL PUENTE, et al., Plaintiffs, v. U.S. ARMY CORPS OF ENGINEERS, et al., Defendants.

Civil Action No. 1:22-cv-02430 (CJN)

United States District Court, District of Columbia

Signed July 24, 2023

Cari Miyoko Sakashita, Kristen Monsell, Catherine Cain Ware Kilduff, Center for Biological Diversity, Oakland, CA, Julie Teel Simmonds, Center for Biological Diversity, Denver, CO, for Plaintiffs.

Christopher Charles Hair, U.S. Attorney's Office for the District of Columbia, Washington, DC, Heather E. Gange, Michelle M. Spatz, Sarah Izfar, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, for Defendants.

Christophe Gagnon Courchesne, Vermont Law and Graduate School, South Royalton, VT, Michael Ray Harris, Bern Environmental & Land Law, Concord, NH, for Amici Amigxs Del M.A.R., Toabajenos En Defensa Del Ambiente.

MEMORANDUM OPINION

CARL J. NICHOLS, United States District Judge

The U.S. Army Corps of Engineers approved the San Juan Harbor Navigation Improvements Project in response to the House of Representative's request to consider and develop navigation improvements that might increase the Harbor's safety, security, and efficiency. The Project involves deepening and widening current shipping channels by dredging and then disposing of the dredged material in a designated ocean disposal site. Plaintiffs, a cohort of environmental groups, contend that the government violated various federal environmental laws in approving the Project. For the reasons discussed below, the Court rejects those challenges, denies Plaintiffs' Motion for Summary Judgment, ECF No. 20, and grants Defendants' Cross-Motion for Summary Judgment, ECF No. 22.

I. BACKGROUND

A. Statutory Background

Plaintiffs El Puente, CORALations, and the Center for Biological Diversity (hereinafter "El Puente") challenge the government's approval of the Project under the Clean Water Act, the National Environmental Policy Act, and the Endangered Species Act. The Court therefore begins a with brief overview of these statutes and the government's obligations relating to the Project.

The Clean Water Act (CWA) is "the principal federal law regulating water pollution in the United States." Sackett v. Env't Prot. Agency, 598 U.S. 651, 143 S. Ct. 1322, 1329, 215 L.Ed.2d 579 (2023) (citing 33 U.S.C. § 1251 et seq.). It "prohibits 'the discharge of any pollutant' into 'navigable waters,' " id. at 1330 (quoting 33 U.S.C. §§ 1311(a), 1362(12)(A)), and is jointly enforced by the EPA and the Army Corps of Engineers, id. Section 404 of the CWA sets forth a framework for the regulation of the discharge of dredged or fill material into "navigable waters"—or "waters of the United States, including the territorial seas." See 33 U.S.C. §§ 1344, 1362(7). That section allows the Corps to issue permits for the discharge of dredged or fill material into the waters of the United States when certain conditions are met. See 33 U.S.C. § 1344; 40 C.F.R. §§ 230 et seq.

A related statute—the Marine Protection, Research and Sanctuaries Act (MPRSA)—governs the discharge of dredged material into ocean waters. See 33 U.S.C. §§ 1402(b), 1411(b). The MPRSA generally prohibits the dumping of dredged material into territorial seas or ocean waters within twelve nautical miles from territorial seas without a permit, see id. §§ 1411, 1413(a), although the Corps may issue regulations about dredged materials in lieu of the permit procedure, id. § 1413(e). The MPRSA also empowers the EPA to designate certain ocean dumping sites or Ocean Dredged Material Disposal Sites (hereinafter "Ocean Disposal Sites"). See id. § 1412(a). By regulation, the dumping of dredged material into territorial seas is governed by the MPRSA, while the dumping of fill material into territorial seas is governed by the CWA. See 40 C.F.R. § 230.2(b).

The National Environmental Policy Act (NEPA) is an "essentially procedural" statute that is designed to ensure that agencies make "fully-informed and well-considered decision[s]" regarding environmental impacts of federal projects. See Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 558, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978); accord Am. Rivers v. Fed. Energy Regul.Comm'n, 895 F.3d 32, 49 (D.C. Cir. 2018) ("NEPA's primary function is 'information-forcing,' compelling federal agencies to take a hard and honest look at the environmental consequences of their decisions." (citations omitted)). "To that end, the statute requires that each agency assess the environmental consequences of major federal actions by following certain procedures during the decision-making process." Ctr. for Biological Diversity v. U.S. Dep't of Interior, 563 F.3d 466, 474 (D.C. Cir. 2009) (quotations omitted) (alterations adopted).

NEPA requires agencies to prepare an environmental impact statement for all "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(C). But if an agency is "unsure whether its proposed action will have significant environmental impacts, it may first prepare an [environmental assessment]." Env't Def. Ctr. v. Bureau of Ocean Energy Mgmt., 36 F.4th 850, 872 (9th Cir. 2022) (quotation omitted). An environmental assessment is a " 'concise, public document' providing 'sufficient evidence and analysis' for the agency to determine 'whether to prepare an environmental impact statement.' " Id. (quoting 40 C.F.R. § 1508.9(a)(1)). It is not meant to replace an environmental impact statement, but rather is "intended to help an agency decide if an [environmental impact statement] is warranted." Id. If, after conducting an environmental assessment, the agency determines that an environmental impact statement is not required, the agency must issue a "finding of no significant impact" and briefly explain its reasoning. See 40 C.F.R. § 1508.9.

The Endangered Species Act (ESA) protects endangered and threatened species and their critical habitats. Under this statute, an agency is "required to ensure that any action undertaken by the agency 'is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification' of critical animal habitats." Ctr. for Biological Diversity, 563 F.3d at 474 (quoting 16 U.S.C. § 1536(a)(2)). For "major construction activities," an agency is required to prepare a biological assessment to "evaluate the potential effects of the action on listed and proposed species and designated and proposed critical habitat" and to determine whether any of those species or habitats are "likely to be adversely affected by the action." 50 C.F.R. § 402.12(a)-(b). Agencies are required to fulfill these requirements "us[ing] the best scientific and commercial data available." 16 U.S.C. § 1536(a)(2).

Under the ESA, "[i]f an agency concludes that its action 'may affect' a listed species or critical habitat, then the agency must pursue either formal or informal consultation" with the National Marine Fisheries Service or the Fish and Wildlife Service (depending on the species or habitat). See Ctr. for Biological Diversity, 563 F.3d at 474-75 (citing 50 C.F.R. §§ 402.13, 402.14). Informal consultation entails correspondence between the agency proposing government action and the relevant wildlife agency to determine whether the action "may affect listed species or critical habitat" and therefore requires formal consultation. See 50 C.F.R. §§ 402.13(a), 402.14(a). "During informal consultation, the [wildlife agency] may suggest modifications to the action that the [f]ederal agency and any applicant could implement to avoid the likelihood of adverse effects to listed species or critical habitat." Id. § 402.13(b). If the wildlife agency determines that the action is not likely to adversely affect the listed species or critical habitat, it generally provides a written concurrence and ends consultation. See id. §§ 402.13(c); see also 402.14(b)(1) (defining an exception to the formal consultation requirement when a federal action is "not likely to adversely affect any listed species or critical habitat"). Formal consultation, in turn, requires a more thorough evaluation and "culminates in the wildlife agency issuing a 'biological opinion' " in which "the wildlife agency comprehensively examines the proposed action's anticipated effect on listed species and critical habitat." Shafer & Freeman Lakes Env't Conservation Corp. v. Fed. Energy Regul. Comm'n, 992 F.3d 1071, 1079 (D.C. Cir. 2021) (citing 16 U.S.C. § 1536(b); 50 C.F.R. § 402.14).

B. Factual Background

The San Juan Harbor is located on Puerto Rico's northern coast and is home to the territory's largest port. See Answer ¶ 1, ECF No. 14. The Harbor "requires periodic maintenance dredging" every five to seven years "to maintain authorized depths." USACE_000067. Since 1975, the dredged material has been deposited in an Ocean Disposal Site approximately 2.2 nautical miles north-northwest of the entrance to the Harbor. Id. The dredged material is transported from the Harbor to the Ocean Disposal Site using "scows" that all "leak to some extent." USACE_000178; see also USACE_000091.

In 2006, the U.S. House of Representatives tasked the Secretary of the Army with determining the feasibility of improving navigation in the Harbor to "increase security, safety, and efficiency." See USACE_000032, 54. Thereafter, the Corps conducted a study and identified three primary navigation problems in the Harbor: "difficult wind and wave conditions, limited channel and turning basin widths, and insufficient [f]ederal channel depths." USACE_000033. The Corps determined that these problems created several concerns for vessels using the Harbor. Restrictive channel depths required petroleum tankers to "light load," resulting in "additional transits to provide the required quantities of gasoline, jet fuel, diesel fuel, and other petroleum products for the island" and forcing vessel...