The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs Alliance to Save the Mattaponi ("Alliance"), Chesapeake Bay Foundation, Inc., Sierra Club, Virginia Chapter, and plaintiff-intervenors Carl T. Lone Eagle Custalow, chief of the Mattaponi Indian Tribe ("Tribe"), and the Tribe (collectively, "plaintiffs"), brought this action against the United States Army Corps of Engineers ("Corps"), the United States Environmental Protection Agency ("EPA"), and against Peter Green, Secretary of the Army and Robert L. Van Antwerp, Chief of Engineers and Commanding General of the Corps, in their official capacities (collectively, "federal defendants"). The City of Newport News, Virginia ("Newport News") also intervened as a defendant.Before the Court is the federal defendants' objection [Dkt. # 118] to the Report and Recommendation [Dkt. # 117] issued by Magistrate Judge John M. Facciola concerning plaintiffs' request for attorneys' fees. Upon consideration of plaintiffs' motions for attorneys' fees, the Report and Recommendation, the objection thereto, and the record of this case, the Court adopts Judge Facciola's Report and Recommendation in substantial part.*fn1
Plaintiffs challenged a permit issued by the Corps to Newport News for the construction of the King William Reservoir ("Reservoir Project"), as well as the EPA's failure to veto the permit. On March 31, 2009, on cross-motions for summary judgment, this Court found in part for plaintiffs and in part for the federal defendants, holding that both the Corps and the EPA acted arbitrarily and capriciously with respect to the permit. See Alliance to Save the Mattaponi v. U.S. Army Corps of Eng'rs, 606 F. Supp. 2d 121 (D.D.C. 2009) ("Alliance II"). As a remedy, the Court ordered that the case be remanded to the Corps and the EPA for further proceedings consistent with the Court's memorandum opinion. See Order of Mar. 31, 2009 [Dkt. # 89].
Plaintiffs subsequently moved for attorneys' fees and costs [Dkt. ## 101, 103, 107, 108] which were referred to Magistrate Judge Facciola for his consideration pursuant to Local Rule 72.3 [Dkt. # 113]. Judge Facciola concluded that plaintiffs are entitled to attorneys' fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d)(1)(A), because the federal defendants' positions in this action were not substantially justified. Judge Facciola, however, did not calculate the amount of fees and costs owed. He instead recommended that the Court first indicate whether it agrees with his determination that the federal defendants' positions were not substantially justified.
The federal defendants object to Judge Facciola's recommendation, and their objection is now pending before the Court.
The EAJA allows parties who prevail in civil actions against the United States to recover reasonable attorneys' fees and costs, provided that the position of the United States is not substantially justified. Am. Wrecking Corp. v. Sec'y of Labor, 364 F.3d 321, 325 (D.C. Cir. 2004) (per curiam).*fn2 The "position of the United States" refers both to "the position taken by the United States in the civil action," and to "the action or failure to act by the agency upon which the civil action is based." 28 U.S.C. § 2412(d)(1)(B). "A position is substantially justified if the underlying agency action and the legal arguments in defense of the action had a reasonable basis both in law and fact." Hill v. Gould, 555 F.3d 1003, 1006 (D.C. Cir. 2009) (internal quotation marks omitted). "That standard demands more than mere non-frivolousness, but less than a showing that the government's decision to litigate was based on a substantial probability of prevailing." Id. (internal quotation marks omitted).
Although the inquiry into reasonableness may not "collapse into [the] antecedent evaluation of the merits," Cooper v. U.S. R.R. Ret. Bd., 24 F.3d 1414, 1416 (D.C. Cir. 1994), the United States' position on the merits "obviously plays an important role in a substantial justification evaluation." Taucher v. Brown-Hruska, 396 F.3d 1168, 1173 (D.C. Cir. 2005). A party is therefore not entitled to attorneys' fees merely because the United States was found to have acted arbitrarily and capriciously in the underlying action. Fed. Election Comm'n v. Rose, 806 F.2d 1081, 1087 (D.C. Cir. 1986).
B. Whether Federal Defendants' Positions Were Substantially Justified
Judge Facciola concluded that the federal defendants' positions with respect to the permit were not substantially justified. In particular, he determined that: (1) the Corps' actions in analyzing alternatives to granting the permit under the relevant regulations were not substantially justified; (2) the Corps' conclusion that the Reservoir Project would not cause significant degradation of the waters was not substantially justified; (3) the Corps' determination that the permit was in the public interest was not substantially justified; and (4) the EPA's failure to veto the permit and its defense of this failure were not substantially justified. As explained below, the Court agrees with Judge Facciola's determination with respect to the first three issues and adopts the portions of the report addressing those issues. The Court disagrees, however, with part of Judge Facciola's treatment of whether the EPA's position was substantially justified.
The federal defendants object generally to Judge Facciola's conclusions that their positions were not substantially justified. In addition, they make three specific objections to the report. First, they maintain that Judge Facciola erred in failing to give significance to the Court's determination to remand the permit matter to the Corps, rather than vacating the permit. United States' Objection to the Magistrate Judge's Report & Recommendation ("Objection") at 2--4. Second, they argue that the report is flawed "to the extent that it is based on the assumption that the Court found the Corps had entirely failed to consider any alternatives to the Reservoir." Id. at 4. Third, they contend that the Report and Recommendation is mistaken "[t]o the extent that the Recommendation concludes that Section 404(c) [of the Clean Water Act] contains a 'Congressional demand . . . that the agency has to do something.'" Id. at 4--5.
The Court now turns to each of Judge Facciola's conclusions, addressing the federal defendants' specific objections where relevant. With respect to each of the specific objections, the Court finds ...