Court Halts Dock Construction under NEPA and ESA

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SandBar 8:3, October, 2009 Recommended citation: McCauley, Michael , Court Halts Dock Construction under NEPA and ESA, 8:3 SandBar 17 (2009). Court Halts Dock Construction under NEPA and ESA Pres. Our Island v. United States Army Corps of Eng’rs, 2009 U.S. Dist. LEXIS 71198 (W.D. Wash. Aug. 13, 2009). *Michael McCauley, 2L, University of Mississippi School of Law* The U.S. District Court for the Western District of Washington held that the U.S. Army Corps of Engineers’ issuance of a § 10 Rivers and Harbors Act (RHA) permit for the construction of a barge-loading facility in Puget Sound was arbitrary and capricious under the Administrative Procedure Act (APA). The court found that the agency ignored relevant studies and failed to require a formal consultation under the Endangered Species Act (ESA). Additionally, the court found the agency’s failure to adequately examine the project’s cumulative impact on the environment violated standards set by the National Environmental Policy Act (NEPA). Background In 2000, Glacier Northwest requested a permit from the Corps to repair a dock on Maury Island, a small island in Puget Sound. The company operated a gravel mine at the site and wanted to increase its yield by replacing its old barge dock with a larger one. Over the next six years the permit application went through a series of reviews under the ESA, NEPA, and RHA. During the permitting process, public opinion began to build against the proposed construction, spilling into elections for Washington State Lands Commissioner. Glacier Northwest went so far as to contribute $50,000 to the re-election campaign of an incumbent who supported construction.1 The election subsequently went to his democratic opponent who based his campaign on opposition to the construction.2 Protect our Islands, an environmental organization working to protect Maury Island’s air and water, spearheaded the opposition to construction, ultimately seeking a temporary restraining order arguing the permits issued were arbitrary and capricious and in violation of the ESA, NEPA, and RHA. ESA The Corps is required to consult with either the National Marine Fisheries Service (NMFS) or the Fish and Wildlife Service (FWS), depending on the species affected, regarding the effects of a project on species protected by the ESA. The Glacier Northwest repairs potentially affected bull trout, Puget Sound Chinook salmon, and Southern Resident Killer Whales. The Corps consulted with NMFS regarding the Puget Sound Chinook and its critical habitat, which resulted in recommendations to mitigate the environmental impact of construction by extending the dock farther from shore, using a bubble curtain to reduce construction noise, and conducting construction only at certain times of year when the fish would not likely be present. The agencies concluded that by implementing these measures, construction “may affect” but would not “adversely affect” any habitat. NMFS likewise found that the project would not adversely affect killer whales, while FWS found that the project would not adversely affect bull trout. These distinctions avoided a long and costly process of entering into formal consultation, and undertaking extensive studies to determine the actual impact of the project on the environment. The ESA requires a federal agency to prohibit any activity that would “jeopardize the continued existence of any endangered species or result in the destruction of adverse modification of habitat of such species.”3 The court noted that the consultation failed to analyze the effect the operational noise of the barges would have on juvenile salmon. Little or no data was presented for statements concluding that noise would have minimal effect or that fish would habituate to the noise levels. In determining whether juvenile Chinook would be present around the worksite, the Corps relied on a single study performed by the company, which found that juvenile Chinook would be “minimally present” during certain times of the year. However, the plaintiffs presented a study at trial that concluded, through sampling, that juvenile Chinook would be present during the scheduled construction period. The standard of review of agency decisions is that the court should “engage in a careful, searching review to ensure that the agency has made a rational analysis and decision on the record before it.”4 The court held that by ignoring relevant scientific evidence the agency acted “arbitrarily and capriciously by finding construction would not likely adversely affect juvenile Chinook salmon.”5 The court pointed to a number of other deficiencies, such as a failure to analyze operational noise from barges loading gravel from the dock and the failure to re-initiate consultation after the habitat was designated as critical for Chinook salmon in 2005. A “Hard Look” at Cumulative Effect NEPA requires federal agencies to prepare an Environmental Impact Statement (EIS) for “major federal actions significantly impacting the quality of the human environment.”6 To determine whether an EIS is required, federal agencies may first prepare an EA. If the EA suggest the project’s impact will not be significant, the agency will issue a “Finding of No Significant Impact” (FONSI) and the permits. In this instance, the Corps issued an EA and promulgated a FONSI. A court reviews an agency’s compliance with NEPA under the APA. Instead of supplanting agency decisions, the court determines whether the agency has taken a “hard look” at the consequences and explained why a project’s impact is insignificant.7 Factors used to determine significance includes whether the activity is highly controversial and whether it is “related to other actions with individually insignificant but cumulatively significantly impacts.”8 The court held the EA failed to evaluate other reasonable or “no action” alternatives as defined by statute, and accordingly, did not meet the “hard look” standard. The court also highlighted the importance of analyzing cumulative impacts.9 The court found that “the Corps failed to give meaningful consideration to ‘the impact on the environment which results from the incremental impact of the action …’” and “there was no meaningful cumulative impact analysis of ‘reasonably foreseeable future actions’ that, in combination with the proposed project, could constitute ‘collectively significant actions . . . over a period of time.’”10 The court noted that “no single project or human activity cause the general degradation of Puget Sound. Yet every project has the potential to incrementally increase the burden upon the species and the Sound.”11 Public Response and Implications Critics of the opposition to the Glacier Northwest project have claimed that this is nothing more than “Not in My Backyard” (NIMBY) activism and cite that the company will now likely have to use trucks to move the sand off the island, causing greater impacts on the environment via pollution.12 Additionally, mining activity on the island will continue and the ruling may simply delay construction of the dock. However, the court ruling was heralded as a major victory for Preserve Our Island and many Washington residents. While acknowledging the importance of economic development, the court made it clear that strict compliance to all relevant environmental regulations is required. The court noted its role was to “ensure that the agencies have taken that requisite “hard look” at the environmental consequences for the proposed project.”13 In this instance, the court found the “hard look at environmental consequences lacking.”14 Endnotes 1. Craig Welch, Judge Rejects Maury Island Gravel-Mine Permit, The Seattle Times, Aug. 14, 2009, available at http://seattletimes. nwsource.com/html/localnews/2009658825_ mauryisland14m.html . 2. Id. 3. 16 U.S.C. §1536(a)(2). 4. National Wildlife Federation v. NMFS, 524 F.3d 917, 927 (2008). 5. Pres. Our Island v. United States Army Corps of Eng’rs, 2009 U.S. Dist. LEXIS 71198 (W.D. Wash. Aug. 13, 2009). 6. 42 U.S.C. §4332(2)(c). 7. National Parks & Conservation Association v. Babbitt, 241 F. 3d. 722, 730 (9th Cir. 2001). 8. 40 C.F.R 1508.27 (b)(4). 9. Welch, supra note 1. 10. Pres. Our Island, 55-56. 11. Id. at 58. 12. Welch, supra* note 1. 13. Pres. Our Island, 2009 U.S. Dist. LEXIS 71198 at 58-59. 14. Id.* at *59.
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SandBar 8:3, October, 2009
Recommended citation: McCauley, Michael , Court Halts Dock Construction under NEPA and ESA, 8:3 SandBar 17 (2009).

Pres. Our Island v. United States Army Corps of Eng’rs, 2009 U.S. Dist. LEXIS 71198 (W.D. Wash. Aug. 13, 2009).

Michael McCauley, 2L, University of Mississippi School of Law

The U.S. District Court for the Western District of Washington held that the U.S. Army Corps of Engineers’ issuance of a § 10 Rivers and Harbors Act (RHA) permit for the construction of a barge-loading facility in Puget Sound was arbitrary and capricious under the Administrative Procedure Act (APA). The court found that the agency ignored relevant studies and failed to require a formal consultation under the Endangered Species Act (ESA). Additionally, the court found the agency’s failure to adequately examine the project’s cumulative impact on the environment violated standards set by the National Environmental Policy Act (NEPA).

Background
In 2000, Glacier Northwest requested a permit from the Corps to repair a dock on Maury Island, a small island in Puget Sound. The company operated a gravel mine at the site and wanted to increase its yield by replacing its old barge dock with a larger one. Over the next six years the permit application went through a series of reviews under the ESA, NEPA, and RHA.
During the permitting process, public opinion began to build against the proposed construction, spilling into elections for Washington State Lands Commissioner. Glacier Northwest went so far as to contribute $50,000 to the re-election campaign of an incumbent who supported construction.1 The election subsequently went to his democratic opponent who based his campaign on opposition to the construction.2 Protect our Islands, an environmental organization working to protect Maury Island’s air and water, spearheaded the opposition to construction, ultimately seeking a temporary restraining order arguing the permits issued were arbitrary and capricious and in violation of the ESA, NEPA, and RHA.

ESA
The Corps is required to consult with either the National Marine Fisheries Service (NMFS) or the Fish and Wildlife Service (FWS), depending on the species affected, regarding the effects of a project on species protected by the ESA. The Glacier Northwest repairs potentially affected bull trout, Puget Sound Chinook salmon, and Southern Resident Killer Whales. The Corps consulted with NMFS regarding the Puget Sound Chinook and its critical habitat, which resulted in recommendations to mitigate the environmental impact of construction by extending the dock farther from shore, using a bubble curtain to reduce construction noise, and conducting construction only at certain times of year when the fish would not likely be present. The agencies concluded that by implementing these measures, construction “may affect” but would not “adversely affect” any habitat. NMFS likewise found that the project would not adversely affect killer whales, while FWS found that the project would not adversely affect bull trout. These distinctions avoided a long and costly process of entering into formal consultation, and undertaking extensive studies to determine the actual impact of the project on the environment.
      The ESA requires a federal agency to prohibit any activity that would “jeopardize the continued existence of any endangered species or result in the destruction of adverse modification of habitat of such species.”3 The court noted that the consultation failed to analyze the effect the operational noise of the barges would have on juvenile salmon. Little or no data was presented for statements concluding that noise would have minimal effect or that fish would habituate to the noise levels.
      In determining whether juvenile Chinook would be present around the worksite, the Corps relied on a single study performed by the company, which found that juvenile Chinook would be “minimally present” during certain times of the year. However, the plaintiffs presented a study at trial that concluded, through sampling, that juvenile Chinook would be present during the scheduled construction period.
      The standard of review of agency decisions is that the court should “engage in a careful, searching review to ensure that the agency has made a rational analysis and decision on the record before it.”4 The court held that by ignoring relevant scientific evidence the agency acted “arbitrarily and capriciously by finding construction would not likely adversely affect juvenile Chinook salmon.”5
      The court pointed to a number of other deficiencies, such as a failure to analyze operational noise from barges loading gravel from the dock and the failure to re-initiate consultation after the habitat was designated as critical for Chinook salmon in 2005.

A “Hard Look” at Cumulative Effect
NEPA requires federal agencies to prepare an Environmental Impact Statement (EIS) for “major federal actions significantly impacting the quality of the human environment.”6 To determine whether an EIS is required, federal agencies may first prepare an EA. If the EA suggest the project’s impact will not be significant, the agency will issue a “Finding of No Significant Impact” (FONSI) and the permits. In this instance, the Corps issued an EA and promulgated a FONSI.
A court reviews an agency’s compliance with NEPA under the APA. Instead of supplanting agency decisions, the court determines whether the agency has taken a “hard look” at the consequences and explained why a project’s impact is insignificant.7 Factors used to determine significance includes whether the activity is highly controversial and whether it is “related to other actions with individually insignificant but cumulatively significantly impacts.”8 The court held the EA failed to evaluate other reasonable or “no action” alternatives as defined by statute, and accordingly, did not meet the “hard look” standard.
The court also highlighted the importance of analyzing cumulative impacts.9 The court found that “the Corps failed to give meaningful consideration to ‘the impact on the environment which results from the incremental impact of the action …’” and “there was no meaningful cumulative impact analysis of ‘reasonably foreseeable future actions’ that, in combination with the proposed project, could constitute ‘collectively significant actions . . . over a period of time.’”10 The court noted that “no single project or human activity cause the general degradation of Puget Sound. Yet every project has the potential to incrementally increase the burden upon the species and the Sound.”11

Public Response and Implications
Critics of the opposition to the Glacier Northwest project have claimed that this is nothing more than “Not in My Backyard” (NIMBY) activism and cite that the company will now likely have to use trucks to move the sand off the island, causing greater impacts on the environment via pollution.12 Additionally, mining activity on the island will continue and the ruling may simply delay construction of the dock. However, the court ruling was heralded as a major victory for Preserve Our Island and many Washington residents.
While acknowledging the importance of economic development, the court made it clear that strict compliance to all relevant environmental regulations is required. The court noted its role was to “ensure that the agencies have taken that requisite “hard look” at the environmental consequences for the proposed project.”13 In this instance, the court found the “hard look at environmental consequences lacking.”14

Endnotes
1.   Craig Welch, Judge Rejects Maury Island Gravel-Mine Permit, The Seattle Times, Aug. 14, 2009, available at http://seattletimes. nwsource.com/html/localnews/2009658825_ mauryisland14m.html .
2.   Id.
3.   16 U.S.C. §1536(a)(2).
4.   National Wildlife Federation v. NMFS, 524 F.3d 917, 927 (2008).
5.   Pres. Our Island v. United States Army Corps of Eng’rs, 2009 U.S. Dist. LEXIS 71198 (W.D. Wash. Aug. 13, 2009).
6.   42 U.S.C. §4332(2)(c).
7.   National Parks & Conservation Association v. Babbitt, 241 F. 3d. 722, 730 (9th Cir. 2001).
8.   40 C.F.R 1508.27 (b)(4).
9.   Welch, supra note 1.
10. Pres. Our Island, 55-56.
11. Id. at *58.
12. Welch, supra note 1.
13. Pres. Our Island, 2009 U.S. Dist. LEXIS 71198 at *58-59.
14. Id. at *59.