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National Wildlife Federation v. Brownlee

April 6, 2005

NATIONAL WILDLIFE FEDERATION, ET AL., PLAINTIFFS,
v.
LES BROWNLEE, ACTING SECRETARY, U.S. DEPARTMENT OF THE ARMY, DEFENDANT.



The opinion of the court was delivered by: James Robertson United States District Judge

MEMORANDUM

Plaintiffs, two environmental groups, challenge four nationwide dredge-and-fill permits issued by the Army Corps of Engineers. Plaintiffs assert that these permits violate the Clean Water Act (CWA), 33 U.S.C. § 1251 et seq.; National Environmental Policy Act (NEPA), 42 U.S.C. § 4331 et seq.; Endangered Species Act (ESA), 16 U.S.C. § 1531 et seq.; and Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq. by allowing development that threatens the endangered Florida panther. I find that the Corps was obligated under the ESA to consult with the Fish and Wildlife Service (FWS) before issuing these permits. Since the Corps did not do so, I must grant summary judgment to plaintiffs on this technical point.

Background

This is the third case before me involving the Florida panther. See Nat'l Wildlife Fed'n v. Norton, 332 F. Supp. 2d 170 (D.D.C. 2004); Nat'l Wildlife Fed'n v. Caldera, No. 00-1031, 2002 WL 628649 (D.D.C. Mar. 26, 2002). My decisions in those cases contain additional background information on the plight of the panther and efforts to protect it.

The Florida panther, a federally listed endangered species, is "one of the most endangered large mammals in the world." A.R., Vol. 3, Doc. #2, at 4-117. Only 100 or fewer of these big cats occupy a habitat that stretches across large areas of south Florida. Development projects in the region pose a potential threat to the panther. Large portions of panther habitat are on land that cannot be developed without a permit from the Army Corps of Engineers. Under the CWA, the Corps is entrusted with regulating the dredging and filling of wetlands. The CWA allows the Corps to issue individual site permits after notice and public hearing. 33 U.S.C. § 1344(a). To streamline the permitting process, Congress has allowed the Corps to issue general nationwide permits (NWPs), renewable every 5 years, for categories of activities that the Corps finds "are similar in nature, will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment." 33 U.S.C. § 1344(e)(1). Development meeting the conditions of an NWP may proceed without interaction with the Corps.*fn1 The Corps issued the four NWPs challenged in this litigation in January 2002:

! NWP 12: Utility Lines (including pipelines, cables, substations, and access roads). Up to 1/2 acre of loss of waters. 67 Fed. Reg. 2,079-80.

! NWP 14: Linear transportation crossings (e.g., highways, railways, trails, airport runways, and taxiways). Up to 1/2 acre loss of waters in non tidal waters and 1/3 acre in non-tidal waters. 67 Fed. Reg. 2,080-81.

! NWP 39: Residential, commercial, and institutional development in non-tidal areas. Up to 1/2 acre loss of waters. 67 Fed. Reg. 2,085-86.

! NWP 40: Agricultural activities in non-tidal areas. Up to 1/2 acre loss of waters. 67 Fed. Reg. 2,086-87. These NWPs are all subject to General Condition 11, which states that:

No activity is authorized under any NWP which is likely to jeopardize the continued existence of a threatened or endangered species... Non-federal permittees shall notify the District Engineer if any listed species... might be affected or is in the vicinity of the project,... and shall not begin work on the activity until notified by the District Engineer that the requirements of the ESA have been satisfied and that the activity is authorized. 67 Fed. Reg. 2,090.

Under Section 7 of the ESA, the Corps must develop and carry out a program for the conservation of endangered species such as the panther, 16 U.S.C. § 1536(a)(1) (ESA Section 7(a)(1)). The Corps must also determine "at the earliest possible time" whether any action it takes "may affect" endangered species, and, if the answer is in the affirmative, it must consult with FWS. 50 C.F.R. § 402.14(a); see 16 U.S.C. § 1536(a)(2) (ESA Section 7(a)(2)). Under NEPA, the Corps must produce an environmental impact statement unless it issues a finding of no significant impact (FONSI). 40 C.F.R. § 1508.9; 42 U.S.C. § 4332(C).

When the Corps issued the NWPs challenged here, it issued accompanying Decision Documents that comprised FONSIs for each NWP and found compliance with the ESA and "minimal" environmental impact under the CWA. See A.R. Vol. 1 (Final), Docs. #35, 37, 61, 62. In identical language in each NWP, the Corps noted:

The issuance or modification of an NWP is based on a general assessment of the effects on... environmental factors that are likely to occur as a result of using this NWP.... As such, this assessment must be speculative or predictive in general terms. Since NWPs authorize activities across the nation, projects eligible for NWP authorization may be constructed in a wide variety of environmental settings. Therefore, it is difficult to predict all of the indirect impacts that may be associated with each activity authorized by an NWP.... Only the reasonably foreseeable direct or indirect effects are included in the environmental assessment of this NWP. Division and district engineers will impose, as necessary, additional conditions on the NWP authorization or exercise discretionary authority to address locally important factors or to ensure that the authorized activity results in no more than minimal individual and cumulative adverse effects on the aquatic environment. In any case, adverse effects will be controlled by the terms, conditions, and additional provisions of the NWP. For example, Section 7 consultation will be required for activities that may affect endangered species.

E.g., A.R. Vol. 1 (Final), Doc. #35 at 6. Further addressing endangered species, the Corps noted that it is engaged in local efforts to address the needs of these species, that the permit system provides local flexibility to safeguard endangered species, and that General Condition 11 ensures the protection of endangered species. Id. at 18-20. The Corps did not consult with FWS before issuing the NWPs, but plans to consult with FWS as needed on a site-specific basis. In general, "the Corps believes that the procedures currently in place result in proper coordination under Section 7 of the [ESA] and ensure that activities authorized by [the NWPs] will not jeopardize the continued existence of any listed threatened and endangered species." Id. at 18-19.

The Corps has made a number of local efforts to protect the panther. In 2000, the Corps prepared,*fn2 in conjunction with FWS, the Southwest Florida Environmental Impact Statement, which provides a generalized review of permitting practices, draft general permit review criteria going forward, and a map of panther habitat. A.R. Vol. 3, Doc. #158. Also in 2000, the Corps and FWS agreed to final interim Standard Local Operating Procedures for Endangered Species (SLOPES). A.R. Vol. 3, Doc. #157 (FWS letter presenting agreement), available at http://www.saj.usace.army.mil/permit/Endangered_Species/Panther%2 0Issues/panther_index.htm. SLOPES outlines general procedures for ESA Section 7 consultations on dredge-and-fill permits. It also includes a map, to be periodically updated, showing a panther "consultation ...


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