Defenders of Wildlife v. Ballard (73 F. Supp. 2d 1094, 1999)

ORDER

MARQUEZ, Senior District Judge.

Now fully briefed and pending before this Court are the parties’ crossmotions for summary judgment which the parties agree will fully dispose of this action. Unfortunately before the Court can turn to the merits of the motions, it must once again address the scope of the action. As previously described, the Complaint is as follows:

Plaintiffs seek declaratory and injunc-tive relief under the Endangered Species Act (ESA), the National Environmental Policy Act (NEPA), the Clean Water Act (CWA), and the Administrative Procedures Act (APA). Plaintiffs charge that the Defendant United States Army Corps of Engineers (COE) failed to prepare environmental assessments or environmental impact statements under NEPA for numerous permits in the range of the ferruginous pygmy-owl (pygmy-owl) (Claim I), failed to consult with the United States Fish and Wildlife Service (FWS) prior to taking actions which may affect pygmy-owls and other endangered and threatened species as required by ESA (Claim II), and acted arbitrarily and capriciously by failing to follow its own regulations and statements of policy designed to ensure compliance with the CWA, NEPA, and the ESA (Claim III).

(Order filed June 15, 1998 (June 15, 1998 Order) at 1-2.) Plaintiffs brought their claims under the citizen suit provision of the CWA, 33 U.S.C. § 1365(1)(2); the citizen suit provision of the ESA, 16 U.S.C. § 1540(g); and under the Administrative Procedures Act (APA) on the basis of 28 U.S.C. § 1331.

Early on, Defendants challenged Plaintiffs’ right to proceed under the citizen suit provisions of the CWA and the ESA because of timeliness and sufficiency of Plaintiffs’ notice. Defendants also argued that under the CWA, Plaintiffs could only sue the Administrator (EPA) and not the COE, hereinafter “Corps.” Defendants did not contest jurisdiction under the APA. On June 15,1998, the Court ruled on these issues. The Court held that Plaintiffs could proceed under the citizen suit provision of ESA for those claims covered by Plaintiffs’ notices alleging violations made “within the context of specific development projects, such as Redhawk (a.k.a. Dove Mountain), Honeybee Canyon, Forest City, and Amphitheater High School.” (June 15, 1998 Order at 9.) The Court reviewed the relevant text of the timely notices and concluded that within the general geographic confines of the notices, “the letters served to give notice to Defendants that Plaintiffs intended to sue because of Corps’ management practice of issuing 404 permits under the CWA in the range of the pygmy-owl in Pima County without consulting FWS as required under the ESA.” (June 15, 1998 Order at 11.) The Court explained as follows:

Plaintiffs’ notice does not have to identify each and every site violation. Hercules, Inc., 50 F.3d at 1247. While Plaintiffs’ allegations involve activities which occurred in specific locations, Plaintiffs’ primary challenge is that Defendants failed to take actions mandated by statute and regulation. When describing a failure to act it is impossible to describe the time, date, activities, and persons responsible with the same specificity used when describing an affirmative act. Natural Resources Defense Council v. Southwest Marine, 945 F.Supp. 1330, 1333 (S.D.Cal.1996). Investigation and resolution of Plaintiffs’ allegations as presented in the site-oriented format of the three notice letters would have resolved Plaintiffs’ claim. With relative ease, the Defendants can check the circumstance of other 404 permits issued in the range of the pygmy-owl in Pima County. See Hercules, 50 F.3d at 1248 (applying similar logic to alleged claim of a discharge violation because state and defendant had easy access to other discharge information and could easily check for other violations of same type).

(June 15,1998 Order at 11-12.)

The Court did not reach the issue of whether Plaintiffs could proceed under the citizen suit provision of the CWA against the Corps versus the EPA because Defendants conceded that Plaintiffs could challenge any final agency action related to the CWA under the APA. (June 15, 1998 Order at 8, n. 3.)

On April 27, 1999, this Court summarized Plaintiffs’ claim for the purpose of clarifying the scope of Plaintiffs’ Motion for Summary Judgment as follows:

Plaintiffs’ claim intertwines the CWA, the ESA, and NEPA. The CWA provides a comprehensive program designed to “restore and maintain the chemical, physical, and biological integrity of the Nations’s waters.” 33 U.S.C. § 2151(a). The CWA prohibits the discharge of any pollutant, including dredged or fill material, into navigable waters unless authorized by a CWA permit. 33 U.S.C. § 1311(a). The Corps regulates the discharges by permits issued under CWA section 404, 33 U.S.C. § 1344. The Corps issues individual permits on a case-by-case basis under section 404(a), 33 U.S.C. § 1344(a), or under 404(e) issues general permits, called nationwide permits (NWPs), on a state, regional or nationwide basis “for any category of activities involving discharges of dredged or fill material if the Secretary determines that the activities in such category are similar in nature, and will cause only minimal adverse effect on the environment,” 33 U.S.C. § 1344(e)(1).

NEPA is the “basic national charter for protection of the environment.” 40 C.F.R. § 1500.1(a). In enacting NEPA, Congress sought to assure that environmental, aesthetic, and cultural concerns are considered by federal decision-makers by requiring “the Federal Government to úse all practicable means ... to improve and coordinate Federal planning.” 42 U.S.C. § 4331(b). The cornerstone of NEPA is the environmental impact statement (EIS) that an agency must prepare for all “major Federal actions significantly affecting the quality of the human environment....” 42 U.S.C. § 4332(2)(C). In deciding whether to prepare an EIS, an agency may first prepare an environmental assessment .(EA). An EA provides sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact (FONSI). Criteria for determining when a full EIS is required, include: “unique characteristics of the geographic area such as proximity to historic or cultural resources, parklands, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas; whether the action is related to other actions with individually insignificant but cumulatively significant impacts; and the degree to which the action may adversely affect an endangered ... species.” 40 C.F.R. §§ 1508.27(b)(3), (7), (9).

The ESA provides a means to conserve the ecosystems upon which endangered species and threatened species depend and provides a program for the conservation of endangered species and threatened species. 16 U.S.C. § 1531(b). A federal agency must ensure that any action it authorizes, funds, or carries out is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of critical habitat of such species. 16 U.S.C. § 1536(a)(2). When a federal agency proposes to take an action that may affect a threatened or endangered species or its critical habitat, that agency must consult with the FWS and obtain a biological opinion from the FWS as to whether the proposed action is likely to result in a violation of the ESA. Id; 50 C.F.R. § 402.

Plaintiffs’ ESA claim alleges that the Corps failed to consult with FWS regarding the “likely, adverse effects” of individual and nationwide permits issued within the range of the pygmy-owl. Plaintiffs’ NEPA claim is that the Corps issued individual and nationwide permits without conducting environmental analysis of the direct, indirect, and cumulative impacts of its individual and nationwide permits in the range of the pygmy-owl. Plaintiffs’ claim under the APA accuses the Corps of acting arbitrarily and capriciously because it failed to comply with its own CWA regulatory provisions, such as mandatory requirements that it obtain the latest information on the pygmy-owl and the regulatory provisions requiring ESA and NEPA compliance.

(Order filed April 27, 1999 (April 27, 1999 Order) at 1-3.)

In spite of all this, Defendants assert in their Response/Crossmotion for Summary Judgment (Response/Crossmotion) that “Plaintiffs do not seek to have the Corp.’s decision to issue NWPs 13, 14, and 26 enjoined or declared illegal.” (Response/Crossmotion at 28). Unless this Court’s prior Orders are entirely off-base, however, that is precisely the focus of the Plaintiffs’ Complaint. Pursuant to this Court’s June 15, 1998 Order, Plaintiffs gave Defendants sufficient notice under the citizen suit provisions of ESA to support its claim that The Corps failed to consult with FWS regarding the cumulative impact of its 404 permits before issuing the permits and authorizing the various specified projects. Furthermore, this Court believes that even if Plaintiffs lack jurisdiction to proceed under the ESA citizen suit provision, if the Court rules favorably for Plaintiffs on their NEPA and CWA claims, this action will, nevertheless, result in § 7 consultation as required under ESA. In other words, if Defendants’ FONSI or “no effect” findings are arbitrary and capricious because Defendants failed to consider the cumulative impacts of its 404 permits, and if such consideration results in a finding that the NWPs “may affect” the pygmy owl and its habitat then as a matter of law, Defendants will be required to enter into section 7 consultation with FWS under ESA.

Plaintiffs claim that Defendants failed to utilize its authority to develop programs for conservation of the pygmy-owl is not similarly situated. Unlike the § 7(a)(2) “failure to consult” ESA violation, this charge which lies under § 7(a)(1) was not included in any Notice provided by Plaintiffs to Defendants. Unlike the § 7 duty to consult with FWS, a favorable resolution of Plaintiffs’ NEPA or CWA claims will NOT result in § 7(a)(1) compliance.

With the exception of Plaintiffs’ § 7(a)(1) claim, Plaintiffs may proceed with this case. The Court rejects Defendants’ narrow view of Plaintiffs’ Complaint and correspondingly, rejects Defendants’ arguments of mootness, ripeness, and standing.

This case is not moot as long as Defendants continue to use the NWPs issued December, 1996. Defendants’ ripeness argument fails in the face of the Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 118 S.Ct. 1665, 1670, 140 L.Ed.2d 921 (1998) rationale that ripeness requires site-specific implementation because “one initial site-specific victory (if based on the Plan’s unlawfulness) could not, through preclusion principles, effectively carry the day.” It is important to note, that Ohio Forestry, considered the ripeness issue within the context of the National Forest Management Act (NFMA), and the Court “acknowledged that a forest plan could always be challenged under the National Environmental Protection Act (“NEPA”) because ‘NEPA, unlike the NFMA, simply guarantees a particular procedure, not a particular result.’ ” Wilderness Society v. Thomas, 188 F.3d 1130 (9th Cir.1999). “Thus, ‘a person with standing who is injured by a failure to comply with the NEPA procedure may complain of that failure at the time the failure takes place, for the claim can never get riper.’ ” Id.

At an “irreducible constitutional minimum,” a plaintiff must establish three elements to have standing. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 118 S.Ct. 1003, 1016, 140 L.Ed.2d 210 (1998) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (“Lujan II ”)). First, the plaintiff must show that he has suffered “an injury in fact—a harm suffered by the plaintiff that is concrete and actual or imminent, not conjectural or hypothetical.” Id. Second, the plaintiff must establish “causation—a fairly traceable connection between the plaintiffs injury and the complained-of conduct of the defendant.” Id. Lastly, “there must be redressability—a likelihood that the requested relief will redress the alleged injury.” Id.

Plaintiffs sue to force the Corps to comply with various procedural and regulatory requirements. In a procedural rights case such as the one at bar, a plaintiff is not held to the normal standards for redressability and immediacy, Lujan II, 112 S.Ct. at 2142 n. 7; see also Sierra Club v. Glickman, 156 F.3d 606, 613 (5th Cir.1998) (interpreting Lujan II). Of course, a procedural rights plaintiff cannot gain standing merely because of the Government’s alleged failure to comply with relevant procedural requirements. Lujan II, 112 S.Ct. at 2143. Instead, standing may be shown as follows:

A plaintiff must show an injury.that is both concrete and particular, as opposed to an undifferentiated interest in the proper application of the law. Likewise, the plaintiff must establish that the injury is fairly traceable to the proposed government action or inaction. Finally, although a procedural rights plaintiff is not held to the normal standards for redressability, in the sense that the plaintiff need not show that the procedural remedy that he is requesting will in fact redress his injury, the plaintiff must nonetheless show that there is a possibility that the procedural remedy ■will redress his injury. In order to make this showing, the plaintiff must show that “the procedures in question are designed to protect some threatened concrete interest of [its] that is the ultimate basis of [its] standing.”

Sierra Club v. Glickman, 156 F.3d at 613 (quoting Lujan II, 112 S.Ct. at 2143 n. 9).

Plaintiffs have standing. Plaintiffs reside in and use areas within pygmy-owl habitat. They allege concrete and particular injury when they assert that projects are being authorized under the NWPs issued December 1996 for activities which “may affect” the pygmy-owl because Defendants have not considered the cumulative impact of the NWPS at the regional level and have not entered into § 7 consultation with FWS. The alleged injury, the degradation of habitat affecting the pygmy-owl, is fairly traceable to the Corps’ alleged failure to consider the cumulative impact of its 404 NWPs prior to their being issued December 1996, or thereafter, on a regional level prior to individual project authorizations. Procedural compliance with NEPA, CWA, and ESA will arguably redress Plaintiffs’ injury.

Turning • to the merits or Plaintiffs’ claims, the Court notes that on April 22, 1999, the Court held a telephonic conference call to clarify the scope of Plaintiffs’ Motion for Summary Judgment, specifically Plaintiffs’ claims for relief. (April 27, 1999 Order at 1.) Plaintiffs voluntary limited their charges specifically to NWPs issued in the following three categories: 1) NWP 13 (bank stabilization/channelization permits), NWP 14 (road crossing permits), and NWP 26 (headwater and isolated water permits). What Defendants depict as further limitations on Plaintiffs’ claims, (Response/Crossmotion at 6), are actually limitations to the relief sought by Plaintiffs, which are as follows:

1) Plaintiff seek declaratory judgment that Defendants violate NEPA, ESA and the Corp regulations by continuing to authorize NWP 13, NWP 14, and NWP 26 projects, such as those named in Plaintiffs’ Amended Complaint.

-2) Plaintiffs seek an injunction enjoining further authorizations for future projects under NWP 13, NWP 14, and NWP 26, within the range of the pygmy-owl, until the Corps supplements the NEPA analysis it has performed in the NWP EAs (Environmental Assessments). Specifically, Plaintiffs want the Court to order a programmatic EIS (Environmental Impact Statement) to be performed which will address impacts to the pygmy-owl in southern Arizona.

3) Plaintiffs seek declaratory judgment that Defendants improperly authorized “Red Hawk and ongoing or uncompleted channelization of the Santa Cruz River” and ask the Court to revoke the permit authorizations for those projects.

(April 27, 1999 Order at 5 (citing Plaintiffs’ Motion for Summary Judgment at 38-39).) The first two are granted pursuant to this Order, the latter remains for disposition after a hearing and full briefing by the parties, with Intervenor, “Red Hawk,” participating fully.

Crossmotions for Summary Judgment

The environmental statutes at issue here do not articulate a standard of review and so the appropriate scope of review is the standard set forth in the APA. See Aluminum Co. Of America v. Bonneville Power Administration, 175 F.3d 1156, 1160 (9th Cir.1999) (APA governs judicial review of administrative decisions involving the ESA); Idaho Farm Bureau Fed. v. Babbitt, 58 F.3d 1392, 1401 (9th Cir.1995) (we review final rule listing endangered species in accordance with APA); Dubois v. United States, 102 F.3d 1273, 1284 (1st Cir.1996) (NEPA and CWA do not articulate own standard of review; therefore, the appropriate scope of review is the APA). The APA provides that final agency action shall be held unlawful and set aside if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law or if it was taken without observance of procedure required by law.” 5 U.S.C. § 706(2)(A), (D). Judicial review under the APA is generally limited to the administrative record that was before the agency when the agency rendered its decision. 5 U.S.C. § 706; Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973); National Wildlife Federation v. Burford, 871 F.2d 849, 855 (9th Cir.1989). Here, the parties stipulated to limit discovery to the administrative record.

The inquiry is searching and careful, but ultimately the standard is a narrow one. Overton Park, 401 U.S. at 416, 91 S.Ct. 814. The Court is not empowered to substitute its judgment for that of the agency. Id. For example, the reviewing court will defer to any reasonable path that the agency follows in fulfilling its legal obligations, regardless of what the court would have done in the agency’s place. Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc. (NRDC), 462 U.S. 87, 105, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). The agency’s action only needs to be reasonable, not the best or most reasonable. Id. at 855. This highly deferential standard of review, is not, however, a rubber stamp. Citizens Awareness Network, Inc. v. United States, 59 F.3d 284, 290 (1st Cir.1995). The relevant inquiry is whether the agency’s decision was based on consideration of relevant factors and whether there has been a clear error of judgment. Overton Park, 401 U.S. at 416, 91 S.Ct. 814. The decision must “make sense.” Puerto Rico Sun Oil Co. v. U.S., 8 F.3d 73, 77 (1st Cir.1993).

Here, Plaintiffs assert that because Defendants failed to consider the cumulative impact of its NWPs 13, 14 and 26, either nationally or regionally, that its finding of no significant impact (FONSI) is arbitrary and capricious, and its decision NOT to enter into § 7 consultation with FWS regarding the environmental impact of the NWPs was clear error and not in accordance with the law as set out in the ESA, the CWA, and federal implementing regulations.

1. Corps’ decision to issue NWPs 13, 14, and 26 in violation of NEPA:

NEPA obligates an agency to consider every significant aspect of the environmental impact of a proposed action. Baltimore Gas, 462 U.S. at 97, 103 S.Ct. 2246 (citing Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 553, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978)). It, also, ensures that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process. Id. (citing Weinberger v. Catholic Action of Hawaii, 454 U.S. 139, 102 S.Ct. 197, 70 L.Ed.2d 298 (1981)).

NEPA achieves these two goals by requiring all federal agencies proposing “major Federal actions significantly affecting the quality of the human environment” to prepare an EIS. An EIS provides a detailed written statement that requires in-depth analysis of all potential environmental impacts. 40 C.F.R. §§ 1502, 1508.11 (emphasis added). If, however, the significance of environmental impacts is unclear, the agency may prepare an EA, “a concise public document ... that serves to briefly provide sufficient evidence and analysis for determining whether to prepare an EIS or a finding of no significant impact (FON-SI).” 40 C.F.R. § 1508.9(a). In other words, the EA is a “rough-cut, low-budget [EIS] designed to show whether a full-fledged [EIS] — which is very costly and time-consuming to prepare and has been the kiss of death to many a federal project — is necessary.” Cronin v. United States, 919 F.2d 439, 443 (7th Cir.1990). If the EA results in a finding of no significant impact, the agency does not need to prepare an EIS. A FONSI, or “Finding of No Significant Impact,” means that the agency has determined its action will not have a significant effect on the human environment.

“NEPA does not mandate particular substantive results, but instead imposes only procedural requirements.” Laguna Greenbelt, Inc. v. United States Dep’t of Transp., 42 F.3d 517, 523 (9th Cir.1994) (citing Vermont Yankee, 435 U.S. at 558, 98 S.Ct. 1197); Inland Empire Public Lands Council v. United States, 88 F.3d 754, 757 (9th Cir.1996). The task under NEPA “is simply to ensure that [the Corps] has adequately considered and disclosed the environmental impact of its actions .... ” Association of Pub. Agency Customers, Inc. v. Bonneville Power Admin., 126 F.3d 1158, 1183 (9th Cir.1997) (citing Baltimore Gas 462 U.S. at 97-98, 103 S.Ct. 2246).

While NEPA decisions involving factual disputes, which implicate substantial agency expertise, are reviewed under the arbitrary and capricious standard, legal disputes are reviewed under the reasonableness standard. Price Neighborhood Ass’n v. United States, 113 F.3d 1505, 1508 (9th Cir.1997). For example, whether new information is significant enough to require a supplemental EIS is a classic example of a factual dispute which implicates substantial agency expertise and is reviewed under the arbitrary or capricious standard. Headwaters, Inc. v. Bureau of Land Management, 914 F.2d 1174, 1177 (9th Cir.1990). On the other hand, for NEPA actions challenging the adequacy of an EIS, this circuit has fashioned a “rule of reason” to determine whether the agency has engaged in a “reasonably thorough discussion of the significant aspects of probable environmental consequences.” Oregon Natural Resources Council v. Lowe, 109 F.3d 521, 526 (9th Cir.1997) (internal quotations and citation omitted); see also, Muckleshoot Indian Tribe v. United States, 177 F.3d 800, 809 (9th Cir.1999) (the court must determine whether the EIS contains a reasonably thorough discussion of the significant aspects of the probable environmental consequences). This same standard is applied regardless of whether the “significance” determination is made in an EIS or EA. See Price Neighborhood, 113 F.3d 1505 (applying reasonableness standard to significance determination for purpose of preparing supplemental EA after initial EA finding of no significant impact). When an agency decides not to prepare an EIS, the EA must supply a “convincing statement of reasons” to explain why a project’s impacts are insignificant. Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1211 (9th Cir.1998) (citing Save the Yaak, 840 F.2d at 717.) “The statement of reasons is crucial to determining whether the agency took a ‘hard look’ at the potential environmental impact of a project.” Id. Under the reasonableness standard, “[o]nce [we are] satisfied that a proposing agency has taken a ‘hard look’ at a decision’s environmental consequences, [our] review is at an end.” Idaho Conservation League v. Mumma, 956 F.2d 1508, 1519 (9th Cir.1992) (quoting California v. Block, 690 F.2d 753, 761 (9th Cir.1982)); Neighbors of Cuddy Mountain v. United States Forest Serv., 137 F.3d 1372, 1376 (9th Cir.1998).

On December 13, 1996, Defendants issued the Final Notice of Issuance, Reissuance, & Modification of Nationwide Permits, covering NWPs 13, 14, and 26. 61 FR 65874. Defendants followed all the APA procedures for final rule making, including public comment provisions. Defendants prepared EAs for each NWP challenged here. {See “Final Decision Documents” at AR 9926, 9939, 10088.) These documents, in combination, explain Defendants’ final decision: FONSI. Consequently, the Court looks to these documents to determine whether Defendants took a hard look at the potential environmental consequences of NWPs 13, 14, and’ 26, prior to issuing the permits and authorizing projects under them. These documents should contain a reasonably thorough discussion of the following relevant factors:

Cumulative impact is the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.

40 C.F.R. § 1508.7.

Effects include:

(a) Direct effects, which are caused by the action and occur at the same time and place.

(b) Indirect effects, which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable. Indirect effects may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems.

Effects and impacts as used in these regulations are synonymous. Effects includes ecological (such as the effects on natural resources and on the components, structures, and functioning of affected ecosystems), aesthetic, historic, cultural, economic, social, or health, whether direct, indirect, or cumulative. Effects may also include those resulting from actions which may have both beneficial and detrimental effects, even if on balance the agency believes that the effect will be beneficial.

40 C.F.R. § 1508.8.

Significantly as used in NEPA requires considerations of both context and intensity:

(a) Context. This means that the significance of an action must be analyzed in several contexts such as society as a whole (human, national), the affected region, the affected interests, and the locality. Significance varies with the setting of the proposed action. For instance, in the case of a site-specific action, significance would usually depend upon the effects in the locale rather than in the world as a whole. Both short- and long-term effects are relevant.

(b) Intensity. This refers to the severity of impact. Responsible officials must bear in mind that more than one agency may make decisions about partial aspects of a major action. The following should be considered in evaluating intensity:

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