The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
Pending are cross-motions for summary judgment. Plaintiff Butte Environmental Council ("BEC") seeks summary judgment on its claim that the United States Army Corps of Engineers ("the Corps") violated the Clean Water Act ("CWA") when it issued a Section 404 permit authorizing the Stillwater Business Park development project ("the Project"); and on its claim that the Corps' Environmental Assessment ("EA"), which found the Project would not have a significant impact under the National Environmental Policy Act ("NEPA"), violates NEPA because it contains an inadequate cumulative impacts analysis and the public did not have adequate opportunity to comment on the EA. BEC also seeks summary judgment on it claims that the United States Fish and Wildlife Service ("FWS") violated the Endangered Species Act ("ESA") by issuing an inadequate Biological Opinion ("BiOp") for the Project, and on its claim that the Corps violated that Act when issuing a Section 404 permit authorizing the Project based on the BiOp. Defendants seek summary judgment on all of BEC's claims.
The Project is located in Shasta County, California, and will impact waters of the United States. The City of Redding ("the City") is developing the Project in the Stillwater Plains area southeast of downtown Redding, California ("Stillwater site"). The Project's stated purpose is to enhance the City's economic stability by attracting business and industry, thereby improving the quality of life of unemployed and low-paid residents. The Project will directly and indirectly affect critical habitats for the vernal pool fairy shrimp, vernal pool tadpole shrimp, and slender Orcutt grass. Vernal pool tadpole shrimp are listed as endangered under the ESA, while vernal pool fairy shrimp and slender Orcutt grass are listed as threatened under the ESA.
In 2003, the City began drafting a joint Environmental Impact Statement and Environmental Impact Report ("EIS/EIR"). Draft EIS/EIRs were submitted to the Corps and the Environmental Protection Agency ("EPA") for comment. On April 18, 2006, the City approved a Final EIS/EIR for the Project. Thereafter, the City applied to the Corps for a permit under Section 404(b) of the CWA, as required by that Act, since the Project involves discharge of fill material into waters of the United States. The Corps has the authority under the CWA to issue the permit provided the proposed project does not violate the ESA. See 16 U.S.C. § 1536(a)(2). On December 18, 2006, the Corps issued a public notice that it would be evaluating the City's permit application for the Project.
The Corps entered into formal consultation with the FWS under Section 7(a)(2) of the ESA to evaluate whether the project would be "likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined . . . to be critical . . . " 16 U.S.C. § 1536(a)(2).*fn1 If the FWS determines under Section 7 the project is not likely to jeopardize the continued existence of the species or its critical habitat but may result in the incidental "take" of threatened or endangered species, it issues an "Incidental Take Statement" along with a BiOp. See 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 502.14(g)(4).*fn2 The Incidental Take Statement must specify "the impact of such incidental taking on the species" and "reasonable and prudent measures [considered] necessary or appropriate to minimize such impact . . ." 16 U.S.C. § 1536(b)(4).
On December 27, 2006, the FWS issued a BiOp and Incidental Take Statement for the Project, in which it concluded the Project would not jeopardize the continued existence of, or adversely modify or destroy the critical habitat for the vernal pool fairy shrimp, vernal pool tadpole shrimp, and/or slender Orcutt grass. The FWS imposed several mitigation conditions upon the Incidental Take Statement to ensure that the City would to compensate for the critical habitat loss. The Corps relied on the FWS's BiOp in determining that the proposed Project complied with the ESA.
On August 9, 2007, the Corps issued an EA and Finding of No Significant Impact ("FONSI") under NEPA, which was included in the "Department of the Army Permit and Evaluation and Decision Document" ("Decision Document").*fn3 On August 21, 2007, the Corps granted a permit to the City under Section 404 which was also based on the Decision Document.
"Judicial review of administrative decisions under the [CWA, ESA, and NEPA] is governed by the [Administrative Procedure Act ("APA")]. Under the APA, a court may set aside an agency action if the court determines that the action was 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.'"
W. Watersheds Project v. Matejko, 468 F.3d 1099, 1107 (9th Cir. 2006)(internal citations omitted). "In making this inquiry, [the court] ask[s] whether the agency considered the relevant factors and articulated a rational connection between the facts found and the choice made." Natural Resources Defense Council v. United States DOI, 113 F.3d 1121, 1124 (9th Cir. 1997)(internal citations and quotations omitted).
"Review under the arbitrary and capricious standard is deferential" to the agency. National Ass'n of Homebuilders v. Defenders of Wildlife, 127 S.Ct. 2518, 2529 (2007). A reviewing court should not vacate an agency's decision unless the agency: "has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Id. at 2529-2530 (internal citation omitted).
BEC argues it is entitled to summary judgment on its CWA claim since the Corps failed to adequately consider practicable alternatives to the Stillwater site before it issued the Section 404 permit. (Pl. Mot. at 14:14-19.) When evaluating a Section 404 permit application, the Corps must consider "the practicability of using reasonable alternative locations and methods to accomplish the objective of the proposal." 33 C.F.R. § 320.4(a)(2)(i).
40 C.F.R. § 230.10(a) provides that no discharge of dredged or fill material shall be permitted if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences. A practicable alternative is one that is available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes. In evaluating whether a given alternative site is practicable, the Corps may legitimately consider such facts as cost to the applicant and logistics. In addition, the Corps has a duty to consider the applicant's purpose. Where a proposed project does not require access to water, i.e., it is not "water dependent," the availability of practicable alternatives is presumed." 40 C.F.R. § 230.10(a)(3).
Bering Strait Citizens for Responsible Res. Dev. v. United States Army Corps of Eng'rs, 524 F.3d 938, 947 (9th Cir. 2008)(internal quotations and citations omitted).
The Project is not water dependent. The Decision Document states, "The basic purpose [of the Project] is economic development which is not water dependent." (Administrative Record ("AR") 545); Pl. Mot. at 13:15-16; Ds. Mot. at 13:15-16.) Therefore, it is presumed practicable alternatives to the Stillwater site exist. BEC contends the Corps has not overcome this presumption, arguing the Corps did not adequately address concerns raised by the Corps itself and the EPA before selecting the Stillwater site as the "least environmentally damaging practicable alternative" ("LEDPA"). (Id. at 19-20:26-5.)
BEC cites to letters in the Administrative Record sent by the EPA and the Corps, in which the EPA and the Corps raise concerns about the Stillwater site as the LEDPA. (AR 1413, 911, 1414, 3112, 2205, 1426, 3115.) On April 29, 2005, the Corps sent a letter to the City commenting on the City's Draft EIS/EIR. (AR 3154-3155.) The letter stated:
[Y]our preferred alternative [the Stillwater site] does not appear to be the LEDPA, as there may be less environmentally damaging alternatives for this project. The range of alternatives considered practicable in your Draft [EIS/EIR] does not include alternatives that avoid impacts to waters of the U.S., including wetlands, (waters) to the maximum extent possible. . . The screening criteria used for selecting practicable alternatives ...