Citizens of the Karst, Inc. et al v. Army Corps of Engineers et al
Filing
48
OPINION AND ORDER re 37 Motion for Summary Judgment; and re 44 Motion for Summary Judgment. The Court DENIES plaintiffs' motion for summary judgment, (Docket No. 37), and GRANTS Corps defendants' cross motion for summary judgment, with prejudice (Docket No. 44). Judgment shall be entered accordingly. Signed by Judge Francisco A. Besosa on 02/12/2016. (brc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
CITIZENS OF THE KARST, INC., et
al.,
Plaintiffs,
Civil No. 14-1592 (FAB)
v.
UNITED STATES ARMY
ENGINEERS, et al.,
CORPS
OF
Defendants.
OPINION AND ORDER
BESOSA, District Judge.
Citizens of the Karst, Inc., Fernando Marquez-Loyola, and
Javier Biaggi-Caballero (collectively, “plaintiffs”) brought this
action against the United States Army Corps of Engineers (“Corps”),
Thomas P. Bostick, in his official capacity as United States Army
Chief of Engineers and Commanding General of the Corps, and Alan M.
Dodd, in his official capacity as District Commander of the Corps
Jacksonville District (collectively, “Corps defendants”).
No. 35.)
(Docket
Plaintiffs claim that the Corps violated the Clean Water
Act (“CWA”) and Corps regulations by not providing adequate public
notice before issuing a permit authorizing Energy Answers Arecibo,
LLC (“Energy Answers”) to fill jurisdictional waters.
No. 35 at p. 2.)
(Docket
Plaintiffs include Energy Answers as a defendant
pursuant to Federal Rule of Civil Procedure 19(a) because it has a
substantial interest in the case.
Id. at p. 5.
Civil No. 14-1592 (FAB)
On
the
same
2
day
that
they
filed
their
second
amended
complaint, plaintiffs moved for summary judgment. (Docket No. 37.)
Energy Answers opposed.
(Docket No. 43.)
also
a
opposed
and
filed
cross-motion
The Corps defendants
for
summary
judgment.
(Docket Nos. 44, 44-2.) Plaintiffs responded, (Docket No. 45), and
the Corps defendants replied, (Docket No. 46).
For the reasons
that follow, the Court GRANTS summary judgment in defendants’ favor
and DENIES plaintiffs’ motion for summary judgment.
I.
A.
BACKGROUND
Plaintiff Marquez’s Declaration
Plaintiff Fernando Marquez-Loyola (“Marquez”) submitted a
declaration
under
penalty
standing to bring suit.
of
perjury
to
(Docket No. 37-2.)
support
plaintiffs’
The Court draws the
following uncontested facts from his declaration.
Marquez is a resident of Arecibo, Puerto Rico.
No. 37-2 at p. 1.)
(Docket
Since 1998, Marquez has owned two buildings in
La Puntilla sector of Arecibo.
Id. at p. 3.
He lives and works in
one of the properties and rents out parts of the other for
commercial,
cultural,
and
residential
purposes.
Id.
His
properties are located adjacent to (and near the mouth of) the Rio
Grande de Arecibo.
See id.; Docket No. 37-3 (image depicting
aerial view of Rio Grande de Arecibo mouth and the town of
Arecibo); Docket No. 37-4 (image depicting aerial view of Marquez’s
properties adjacent to the Rio Grande de Arecibo); Docket No. 37-5
Civil No. 14-1592 (FAB)
3
(photo taken from Marquez’s property showing unobstructed view of
the river).
La Puntilla sector and Marquez’s properties are susceptible to
flooding from the Rio Grande de Arecibo.
(Docket No. 37-2 at
p. 3.) Marquez’s properties flooded in 1998, 2003, 2010, 2012, and
have flooded on other occasions.
Id.
During severe storms, the
flood waters reached high levels and caused property damage.
Id.
at p. 4; see Docket Nos. 37-7 through 37-13 (photos depicting
floods on Marquez’s street and their effects on his properties).
As a result, Marquez lives in constant fear of personal harm and
property loss from floods.
(Docket No. 37-2 at p. 5.)
Marquez’s properties are located about 1.5 miles from the area
where Energy Answers will discharge fill material into the Rio
Grande de Arecibo floodway pursuant to the permit issued by the
Corps.
(Docket No. 37-2 at p. 4.)
Marquez is very concerned about
how this discharge will affect flooding of the Rio Grande de
Arecibo and the potential consequences to his property and safety.
Id. at p. 5.
B.
This concern causes him emotional distress.
Id.
Administrative Record
Corps
defendants
provided
the
Court
with
the
Administrative Record (“AR”) in PDF format on a CD.
Nos. 19; 19-1 (certification and index of the AR).
the following facts from the AR.
2,006-page
See Docket
The Court draws
Civil No. 14-1592 (FAB)
4
Energy Answers applied for a permit pursuant to section 404 of
the CWA, 33 U.S.C. § 1344, to construct a waste to energy resource
recovery facility in Arecibo, Puerto Rico.
(AR at p. 1473.)
The
project would require filling 2.42 acres of wetlands adjacent to
the Rio Grande de Arecibo.
Id.
To compensate for this impact to
the wetlands, Energy Answers proposed to enhance approximately 7.5
acres of wetlands 10.3 kilometers from the project area by planting
woody wetland species and native plants.
Id. at p. 1475.
Energy
Answers also proposed preserving 26.1 acres of the project area for
conservation and floodway management.
Id.
The Corps issued public notice of Energy Answers’ application
and proposals on July 11, 2011, and set a thirty-day period to
accept public comments.
See AR at pp. 144, 1473-77.
submitted comments on August 5, 2011.
Plaintiffs
Id. at pp. 1313-21.
Among
other things, plaintiffs commented that the public notice lacked
critical
information
necessary
to
compensatory mitigation meaningfully.
comment
on
the
project’s
Id. at p. 1318.
The Corps
also received comments from the Environmental Protection Agency
(“EPA”), which expressed concern that the proposed mitigation might
not be adequate.
Id. at pp. 1309, 1311.
The National Marine
Fisheries Service submitted a comment recommending that wetlands be
established on the project site.
In
January
2012,
Energy
Id. at p. 1307.
Answers
revised
its
proposed
mitigation and submitted a detailed mitigation plan.
(AR at
Civil No. 14-1592 (FAB)
pp. 1019-43.)
5
In this mitigation plan, Energy Answers abandoned
its original proposal of enhancing 7.5 acres of wetlands 10.3
kilometers from the project area.
See id.
Energy Answers instead
proposed to create 9.31 acres of wetlands on the project site’s
western portion, which is part of the Rio Grande de Arecibo
floodway.
Id. at p. 1023.
On November 8, 2012, Energy Answers submitted a hydrologichydraulic study (“HH study”) to the Corps.
(AR at pp. 842-43.)
The HH study was prepared in July 2010 and predicts that Energy
Answers’ new facility will cause water levels in some areas of the
Rio Grande de Arecibo floodway to increase by 0.3 meters.
pp. 869-70, 876-77, 881.
Id. at
The study does not address or predict the
new facility’s impact on the water level at the mouth of the Rio
Grande de Arecibo or in La Puntilla sector of Arecibo.
See id. at
p. 881.
On April 17, 2014, the Corps issued a permit to Energy Answers
pursuant to section 404 of the CWA.
(AR at p. 2.)
The permit
specifies that, as compensatory mitigation, Energy Answers must
create 9.31 acres of wetlands on the project site, enhance those
new wetlands with 900 trees, and preserve 27.67 acres of the
project site with a conservation easement.
II.
Id. at pp. 10-11.
DISCUSSION
Plaintiffs claim that the Corps violated the CWA and Corps
regulations when it issued a CWA section 404 permit to Energy
Civil No. 14-1592 (FAB)
6
Answers without subjecting the approved compensatory mitigation to
public
notice
and
comment.
(Docket
No.
35
at
pp.
16-17.)
Plaintiffs argue that because the mitigation announced in the
public notice (enhancing 7.5 acres of wetlands 10.3 kilometers from
the project site) was “totally different” than the mitigation
ultimately approved in the permit (creating 9.31 acres of wetlands
on
the
project
site),
the
Corps
was
required
to
issue
a
supplemental public notice to announce that change and give the
public an opportunity to comment on it.
(Docket No. 37 at pp. 19-
21.)
Plaintiffs seek (1) a declaration that the Corps violated the
CWA and Corps regulations, (2) an order revoking the permit and
enjoining the Corps from reissuing the permit until it complies
with notice requirements, and (3) an award of costs and attorneys’
fees.
(Docket No. 35 at pp. 17-18.)
The Court first discusses whether plaintiffs have standing to
bring suit and then analyzes the merits of their claim.
A.
Standing
The Corps defendants argue that the Court lacks jurisdiction
over this case because plaintiffs do not have standing.
(Docket
No. 44-2 at pp. 8-12.) Plaintiffs have the burden of demonstrating
standing, Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992), and
only one plaintiff needs to have standing for the Court to exercise
Civil No. 14-1592 (FAB)
7
jurisdiction, Dubois v. U.S. Dep’t. of Agric., 102 F.3d 1273, 1282
(1st Cir. 1996).
“The doctrine of standing addresses whether a particular
plaintiff
has
‘such
a
personal
stake
in
the
outcome
of
[a]
controversy as to assure that concrete adverseness which sharpens
the presentation of issues upon which the court so largely depends
for illumination.’”
Nulankeyutmonen Nkihtaqmikon v. Impson, 503
F.3d 18, 26 (1st Cir. 2007) (quoting Baker v. Carr, 369 U.S. 186,
204 (1962)). To establish standing, a plaintiff must show (1) that
she or he suffered an injury that is “concrete and particularized”
and “actual or imminent, not conjectural or hypothetical”; (2) that
there is a causal connection between the injury and the challenged
action; and (3) that it is likely that the injury will be redressed
by a favorable decision.
Lujan, 504 U.S. at 560-61 (internal
quotation marks and citations omitted).
Plaintiffs claiming violations of procedural rights, such as
those created by the CWA, however, “receive ‘special’ treatment
when it comes to standing.”
Dubois, 102 F.3d at 1281 n.10.
A
plaintiff “who has been accorded a procedural right to protect his
concrete interests can assert that right without meeting all the
normal standards for redressability and immediacy.”
U.S. at 573 n.7.
Lujan, 504
The United States Supreme Court gave the
following example of this relaxed standard:
[O]ne living adjacent to the site for proposed
construction of a federally licensed dam has standing to
Civil No. 14-1592 (FAB)
8
challenge the licensing agency’s failure to prepare an
environmental impact statement, even though he cannot
establish with any certainty that the statement will
cause the license to be withheld or altered, and even
though the dam will not be completed for many years.
Id.
The Supreme Court contrasted this example with someone who
lives “at the other end of the country from the dam.”
Id.
That
person would not have standing to sue the licensing agency because
she or he would have “no concrete interests affected.”
Id.
Here, plaintiff Marquez claims that the Corps failed to follow
the notice and comment procedure required by the CWA and Corps
regulations before issuing Energy Answers a CWA section 404 permit.
(Docket No. 35 at p. 17.)
procedural standing analysis.
This brings his claim within the
Accordingly, because the standard
for immediacy is relaxed, to establish an injury sufficient for
standing purposes, plaintiff Marquez “need only show” that the
notice
and
comment
procedure
required
by
the
CWA
and
Corps
regulations was “‘designed to protect some threatened concrete
interest’ personal to [him].”
Nulankeyutmonen, 503 F.3d at 27
(quoting Lujan, 504 U.S. at 572-73 nn.7-8).
Plaintiff Marquez’s threatened concrete interest is evident:
he lives, works, and owns property 1.5 miles from the area where
Energy Answers will discharge fill material into the Rio Grande de
Arecibo floodway; his properties are adjacent to the Rio Grande de
Arecibo and susceptible to frequent flooding from the river, which
has caused damage; and a study predicted that Energy Answers’ new
Civil No. 14-1592 (FAB)
9
facility will cause water levels to rise in some areas of the Rio
Grande de Arecibo floodway.
See Docket No. 37-2 at pp. 1-5; AR at
pp. 869-70, 876-77, 881; Lujan, 504 U.S. at 573 n.7 (“[O]ne living
adjacent to the site for proposed construction of a federally
licensed dam has standing to challenge the licensing agency’s
failure to prepare an environmental impact statement . . . .”);
Nulankeyutmonen, 503 F.3d at 25-29 (holding that plaintiffs have
standing to challenge the approval of a lease to build a liquified
natural gas terminal when they “live within a mile” of the project
site and use the land and surrounding waters for ceremonial and
community purposes); Ashley Creek Phosphate Co. v. Norton, 420 F.3d
934, 938 (9th Cir. 2005) (“[P]laintiffs . . . who own land near the
site of a proposed action have little difficulty establishing a
concrete interest.”).
Marquez is therefore not claiming the
deprivation of “a procedural right in vacuo,” see Summers v. Earth
Island Inst., 555 U.S. 488, 496 (2009); he has a concrete interest
affected by the deprivation of the procedural right.
The notice and comment procedure required by the CWA and Corps
regulations are expressly designed to protect against the flooding
dangers that plaintiff Marquez fears.
See 33 C.F.R. § 325.3(a)
(“The
method
public
notice
is
the
primary
of
advising
all
interested parties of the proposed activity for which a permit is
sought and of soliciting comments and information necessary to
evaluate the probable impact on the public interest.”); id. §
Civil No. 14-1592 (FAB)
10
325.3(c)(1) (requiring that the public notice include a description
of the following factors, among others, which the Corps must
consider when deciding whether to issue a permit:
“flood hazards,
floodplain values, . . . safety, . . . considerations of property
ownership and, in general, the needs and welfare of the people”);
accord id. § 320.4.
In sum, Marquez is seeking to enforce the CWA notice and
comment procedure,
which
is
designed
to
enable
the
Corps to
evaluate a project’s probable impact on the public interest.
The
Corps’ failure to comply with this procedure could result in it not
evaluating or considering the project’s impact on flood hazards in
La Puntilla, an area downstream from the project site.
Plaintiff
Marquez has an interest in that evaluation because he lives, works,
and owns property adjacent to the Rio Grande de Arecibo in La
Puntilla and frequently experiences floods.
The Court therefore
finds that plaintiff Marquez, pursuant to the relaxed standard
articulated
in
Nulankeyutmonen,
sufficient
to
Lujan,
503
F.3d
assert
his
504
at
U.S.
27,
at
has
procedural
572-73
nn.7-8,
established
right
to
an
notice
and
injury
and
the
opportunity to comment.
The Corps defendants argue that plaintiff Marquez has not
demonstrated an injury because Marquez’s fear that the project will
cause flooding is based on “pure speculation.” (Docket No. 44-2 at
pp. 8-9.)
The injury supporting Marquez’s standing, however, is
Civil No. 14-1592 (FAB)
11
not the increased flood risk to his properties.
The injury is the
alleged deprivation of the procedural right to notice and an
opportunity
to
comment
on
Energy
Answers’
project.
See
Nulankeyutmonen, 503 F.3d at 28 (explaining that, in environmental
action against government agency, injury was not the potential harm
to the environment, but rather the agency’s failure to follow
environmental law procedures in the permitting process).
deprivation
hazards.
may
cause
the
Corps
to
overlook
potential
That
flood
Were the Court to find that plaintiff Marquez’s standing
depends on proof that the project will cause the floods that
Marquez fears, the Court would essentially be requiring Marquez to
conduct the same environmental impact study that he seeks to compel
the Corps to undertake by bringing this suit.
See Citizens for
Better Forestry v. U.S. Dep’t. of Agric., 341 F.3d 961, 971-72 (9th
Cir. 2003); Docket No. 37 at pp. 12-13 (stating that had plaintiffs
had an opportunity to comment, they would have emphasized the need
for
additional
studies
to
determine
the
project’s
flooding in La Puntilla sector, where Marquez lives).
impact
on
The Court
does not read the procedural standing standard set forth in Lujan
and Nulankeyutmonen to require this much of plaintiffs, even at the
summary judgment stage.
The Court therefore rejects defendants’
argument.
Having found an injury in fact, the Court now discusses
whether
plaintiffs
meet
the
standing
test’s
causation
and
Civil No. 14-1592 (FAB)
redressability
challenge.
12
requirements
-
neither
of
which
defendants
Plaintiffs have established causation because their
procedural injury of being denied notice and an opportunity to
comment is directly traceable to the Corps’ failure to issue a
supplemental
changed.
public
notice
after
the
proposed
mitigation
was
See Lujan, 504 U.S. at 560-61.
As for redressability, “[a]ll that is required in cases of
procedural injury is ‘some possibility that the requested relief
will prompt the injury-causing party to reconsider the decision .
. . .’”
Nulankeyutmonen, 503 F.3d at 28 (quoting Massachusetts v.
E.P.A., 549 U.S. 497, 518 (2007).
Here, plaintiffs seek an order
revoking Energy Answers’ permit and enjoining the Corps from
reissuing the permit until it complies with notice requirements.
(Docket No. 35 at pp. 17-18.)
If given the opportunity to comment,
plaintiffs would emphasize the need for a direct, indirect, and
cumulative impact analysis of the compensatory mitigation as well
as a study to determine the project’s effects on flooding 1.5
kilometers from the project site at the mouth of the Rio Grande de
Arecibo
in
La
Puntilla.
See
Docket
No.
37
at
pp.
12-13.
Especially because the AR does not show any evidence that the Corps
evaluated
or
considered
what
effect
the
project
and
its
compensatory mitigation would have on La Puntilla - an area that
frequently floods - the Court finds that there is “at least a
chance that proper consideration would convince” the Corps not to
Civil No. 14-1592 (FAB)
reissue the permit.
13
See Nulankeyutmonen, 503 F.3d at 28.
Thus,
plaintiffs meet the relaxed redressability standard to establish
standing.
Accordingly, the Court finds that plaintiff Marquez has
standing to bring this suit, and because only one plaintiff needs
to have standing for the Court to exercise jurisdiction, Dubois,
102 F.3d at 1282, the case is properly before the Court.
Having
resolved the jurisdictional question, the Court now moves on to
analyze the merits of plaintiffs’ claim.
B.
Summary Judgment and Administrative Procedure Act Standards of
Review
Before the Court are the parties’ cross-motions for summary
judgment.
Pursuant to Federal Rule of Civil Procedure 56, the
Court will “grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
The Administrative Procedure Act (“APA”) provides the standard
of judicial review for the Corps’ decision to issue the CWA section
404 permit because that decision is a final agency action.
See 5
U.S.C. § 706; Town of Norfolk v. U.S. Army Corps of Eng’rs, 968
F.2d 1438, 1445 (1st Cir. 1992).
Pursuant to the APA, the Court
may set aside an agency action that it finds to be “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance
with law.”
5 U.S.C. § 706(2)(A).
The Court’s review pursuant to
the arbitrary and capricious standard is “highly deferential” and
“narrow”; “the agency’s actions are presumed to be valid,” and the
Civil No. 14-1592 (FAB)
14
Court “may not substitute its judgment for that of the agency.”
River St. Donuts, LLC v. Napolitano, 558 F.3d 111, 114 (1st Cir.
2009).
The
Court
is
also
limited
to
considering
only
the
administrative record and does not engage in additional factfinding.
“The
Atieh v. Riordan, 727 F.3d 73, 75-76 (1st Cir. 2013).
relevant
inquiry”
is
“whether
the
administrative
sufficiently supports the agency’s decision.”
C.
record
Id. at 76.
Corps’ Compliance with Notice Requirements
Congress
enacted
the
and
CWA
chemical,
physical,
waters.”
33 U.S.C. § 1251(a).
“to
biological
restore
integrity
and
of
maintain
the
Nation’s
To achieve this goal, the CWA
prohibits the discharge of pollutants into navigable waters.
§ 1311(a).
the
Id.
There is an exception, however, to this general
prohibition.
Pursuant to CWA section 404, the Secretary of the
Army, acting through the Corps, “may issue permits, after notice
and opportunity for public hearings[,] for the discharge of dredged
or fill material into the navigable waters at specified disposal
sites.”
Id. § 1344(a).
The Corps must exercise this authority in
accordance with EPA guidelines (published in 40 C.F.R. pt. 230) and
its own regulations (published in 33 C.F.R. ch. 2).
An applicant seeking a section 404 permit begins the permit
process formally by submitting an application to the Corps.
“The
application must include a complete description of the proposed
activity.”
33 C.F.R. § 325.1(d)(1).
It must also include “either
Civil No. 14-1592 (FAB)
15
a statement describing how impacts to waters of the United States
are
to
be
compensated
for
or
a
statement
explaining
why
compensatory mitigation should not be required for the proposed
impacts.”
Id. § 325.1(d)(7).
Once the Corps receives a complete application, it must
publish public notice of the application within fifteen days.
33
U.S.C.
information
§
magnitude
1344(a).
to
of
give
the
The
a
clear
activity
notice
must
“include
understanding of
to
generate
the
sufficient
nature
meaningful
and
comment.”
33 C.F.R. § 325.3(a). Specifically with respect to mitigation, the
public notice “must contain a statement explaining how impacts
associated with the proposed activity are to be avoided, minimized,
and compensated for.”
Id. § 332.4(b)(1).
“The level of detail
provided in the public notice” with respect to mitigation “must be
commensurate with the scope and scale of the impacts.”
Id.
After
notice is published, the public has the opportunity to comment on
the project proposal.
Id. § 325.2(a)(3).
The Corps “will issue a supplemental, revised, or corrected
public notice if in [its] view there is a change in the application
data that would affect the public’s review of the proposal.”
Id.
§ 325.2(a)(2).
Here, plaintiffs do not challenge the sufficiency of the
public notice that the Corps issued on July 11, 2011.
plaintiffs
argue
that
the
Corps
should
have
Rather,
published
a
Civil No. 14-1592 (FAB)
16
supplemental notice after the mitigation announced in the original
notice was changed from enhancing 7.5 acres of wetlands 10.3
kilometers from the project site to creating 9.31 acres of wetlands
on the project site.
(Docket No. 37 at pp. 19-21.)
Thus, the merits issue before the Court is whether the AR
sufficiently
supports
supplemental
notice
or
the
Corps’
whether
decision
that
capricious, or an abuse of discretion.
not
decision
to
was
publish
a
arbitrary,
See 5 U.S.C. § 706(2)(A);
Atieh, 727 F.3d at 76. Regulations give the Corps great discretion
in this matter; it must issue a supplemental notice only if “in
[its] view” the change from the original notice “would affect the
public’s review of the proposal.”
33 C.F.R. § 325.2(a)(2).
The
Court must be “highly deferential” to the Corps’ discretionary
decision.
See River St. Donuts, 558 F.3d at 114.
Here, the AR reflects that the new on-site mitigation will
provide “additional enhanced wildlife habitat, storm buffering,
sediment filtration, [and] floodwater storage, and [will] reduce[]
the potential for nutrients and contaminants in the site drainage
run off, resulting in the enhanced ability to protect the Rio
Grande de Arecibo.”
(AR at p. 149.)
The Corps determined that
this change in mitigation satisfied the EPA’s concern that the
originally proposed mitigation would not be adequate.
pp. 148-50.
Id. at
Thus, the change in mitigation reduced the adverse
Civil No. 14-1592 (FAB)
environmental
impacts
17
of
Energy
Answers’
project
and
was
in
response to comments already received.
A steady line of courts has upheld the Corps’ decision not to
publish a supplemental notice after a change decreased either the
scope of the project or its adverse impacts.
See, e.g., Galveston
Beach to Bay Pres. v. U.S. Army Corps of Eng’rs, No. CIV.A.
G-07-0549, 2009 WL 689884, at *14 (S.D. Tex. Mar. 11, 2009)
(upholding Corps’ decision not to issue supplemental notice where
change
to
proposed
project
involved
decreasing
the
project’s
scope); Sierra Club v. Pena, 915 F. Supp. 1381, 1397 (N.D. Ohio
1996) (upholding Corps’ decision not to issue supplemental notice
where revised application resulted in reduction in the amount of
wetlands affected by the project), aff’d sub nom. Sierra Club v.
Slater, 120 F.3d 623 (6th Cir. 1997); Sierra Club v. U.S. Army
Corps
of
Eng’rs,
935
F.
Supp.
1556,
1581
(S.D.
Ala.
1996)
(upholding Corps’ decision not to issue supplemental notice of
change that reduced the wetland impacts from 16.9 acres to 7.4
acres); cf. Fund for Animals, Inc. v. Rice, 85 F.3d 535, 545 (11th
Cir. 1996) (upholding Corps’ decision not to issue supplemental
notice after applicant added an access road to the project that
would
require
filling
less
than
one-half
acre
of
additional
wetlands); Town of Abita Springs v. U.S. Army Corps of Eng’rs, No.
CV 15-451, 2015 WL 9315745, at *13 (E.D. La. Dec. 23, 2015)
(upholding Corps’ decision not to issue supplemental notice after
Civil No. 14-1592 (FAB)
18
applicant added more detailed information to its application in
response to comments received after first public notice).
In the three cases relied upon by plaintiffs, see Docket
No. 45 at pp. 15-17, the courts held that the Corps failed to
include “pivotal data” in the original public notice.
See Ohio
Valley Envtl. Coal. v. U.S. Army Corps of Eng’rs, 674 F. Supp. 2d
783, 804 (S.D. W. Va. 2009) (holding that Corps erred by issuing
public
notice
that
“contained
no
substantive
information
on
mitigation”); Friends of the Earth v. Hall, 693 F. Supp. 904, 948
(W.D. Wash. 1988) (holding that Corps erred by failing to give
notice of a monitoring plan because it was “the single most
important feature” of the project); Nat’l Wildlife Fed’n v. Marsh,
568 F. Supp. 985, 991, 994-95 (D.D.C. 1983) (holding that Corps
erred by failing to issue notice of a “staff evaluation,” which
evaluated benefits and rated alternative sites, because it was “the
most important document influencing the [Corps’] decision” and
differed substantially from information included in the public
notice).
This case is readily distinguishable from those cases
because nothing in the AR suggests that the change in mitigation
reducing adverse environmental impacts was “pivotal data.”
See
Ohio Valley, 674 F. Supp. 2d at 808 (“[A] post-comment change to a
permit application that reduces adverse environmental effects does
not
warrant
the
same
consideration
as
a
post-comment
.
.
.
Civil No. 14-1592 (FAB)
19
monitoring plan, pivotal data, or other rationale that provides the
basis for a determination of no significant degradation.”).
In sum, it was reasonable for the Corps to conclude that the
change in mitigation would not affect the public’s review of the
proposal because the change reduced the adverse environmental
impacts of Energy Answers’ project and was in response to comments
already received.
The Corps’ decision not to issue a supplemental
notice was therefore not arbitrary, capricious, or an abuse of
discretion.
III.
CONCLUSION
After carefully considering the Administrative Record, the
applicable law, and the parties’ arguments, the Court concludes
that the Corps’ decision not to publish a supplemental notice
before issuing Energy Answers a CWA section 404 permit was not
arbitrary, capricious, or an abuse of discretion. Accordingly, the
Court DENIES plaintiffs’ motion for summary judgment, (Docket
No. 37), and GRANTS Corps defendants’ cross motion for summary
judgment, with prejudice (Docket No. 44).
Judgment shall be entered accordingly.
IT IS SO ORDERED.
San Juan, Puerto Rico, February 12, 2016.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE
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