The opinion of the court was delivered by: Reggie B. Walton United States District Judge
These consolidated cases are before the Court on the parties' cross-motions for partial summary judgment.*fn1 The Court heard oral argument on these motions at a hearing on September 16, 2011. For the reasons explained below, the Court will grant the plaintiffs' motion for partial summary judgment and deny the federal defendants' motion for partial summary judgment.*fn2
Clean Water Act Section 404 permits are issued by the United States Army Corps of Engineers ("Corps") "for the discharge of dredged and fill material into navigable waters at specific disposal sistes," 33 U.S.C. § 1344(a) (2006), and govern material that fills or displaces receiving waters, Pls.' Mem. at 3. The Corps has sole authority to issue Section 404 permits, 33 U.S.C. § 1344(a); Defs.'Mem. at 8, but in doing so must apply guidelines that it develops in conjunction with the EPA. See Pls.' Mem. at 3; Defs.' Mem. at 3. As required by the Clean Water Act, 33 U.S.C. 1344(b), the EPA and the Corps promulgated 404(b)(1) guidelines, which are codified at 40 C.F.R. Part 230 (2010), to guide the Corps' review of the environmental effects of proposed disposal sites, Defs.' Mem. at 3; Pls.' Mem. at 7. The 404(b)(1) guidelines provide that "[n]o modifications to the basic application, meaning, or intent of these guidelines will be made without rulemaking by the Administrator [of the EPA] under the Administrative Procedure Act." 40 C.F.R. § 230.2(c).
In addition to giving the EPA the responsibility to develop the guidelines with the Corps, the Clean Water Act accords the EPA the authority to prevent the Corps from authorizing certain disposal sites. 33 U.S.C. § 1344(c). To exercise its authority to prevent the Corps from authorizing a particular dumpsite, known as the 404(c) veto authority, the EPA must determine, after notice and an opportunity for public hearing, that certain unacceptable environmental effects would occur if the disposal site were approved. Id. Section 404(c) requires the EPA to "set forth in writing and make public [its] findings and [its] reasons for making any determination under this subsection." Id.
Section 404(q) of the Clean Water Act directs the Corps to coordinate with the appropriate federal agencies to assure that, "to the maximum extent practicable," a decision on a pending application for a Section 404 permit will be made within 90 days of the publication of the notice for that application. 33 U.S.C. § 1344(q). In August 1992, the Corps signed a Memorandum of Agreement with the EPA as required by section 404(q) of the Clean Water Act, see Administrative Record ("AR") at ECP000001-10 (Memorandum of Agreement between the Environmental Protection Agency and the Department of the Army ("404(q) Memorandum")), which makes clear that "the Corps is responsible for reviewing and evaluating information concerning all permit applications," id. at ECP000001. The 404(q) Memorandum acknowledges "that the EPA has an important role" in the Corps' Section 404 permitting process and envisions that the EPA will provide comments to the Corps, but also clarifies that the EPA's comments will be provided to the Corps within the time frames established in the agreement itself and the applicable regulations. Id. at ECP000002. The 404(q) Memorandum also notes, however, that the Corps may request additional comments from the EPA or discuss issues with the EPA after the close of the comment period. Id. at ECP000005. Additionally, the 404(q) Memorandum clarifies that it in no way alters the Corps' "authority to decide whether a particular individual permit should be granted, including determining whether the project is in compliance with the Section 404(b)(1) Guidelines, or the [EPA's] authority under Section 404(c) of the Clean Water Act." Id. at ECP000002. Further, the 404(q) Memorandum provides for the "elevation," i.e., additional review, of individual permit decisions. Id. at ECP000006-10. The "final decision on the need to elevate a specific individual permit case" rests "solely" with the Assistant Secretary of the Army for Civil Works. Id. at ECP000007. Finally, the 404(q) Memorandum states that it shall "be effective immediately upon the date of the last signature and will continue in effect until modified or revoked by agreement of both parties, or revoked by either party alone upon six months written notice." Id. at ECP000003.
On June 11, 2009, the EPA, the Corps, and the Department of the Interior signed a Memorandum of Understanding on Implementing the Interagency Plan on Appalachian Surface Coal Mining. Id. at ECP000011-16 (June 11, 2009 Memorandum of Understanding ("June 11, 2009 MOU")). The June 11, 2009 MOU represented the announcement of "a set of short-term actions to be implemented in 2009 to existing policy and guidance, and a longer term process for gathering public input, assessing the effectiveness of current policy, and developing regulatory actions." Id. at ECP000012. One element of the plan was "coordinated environmental reviews of pending permit applications under the Clean Water Act." Id.; see also id. at ECP000014 (explaining that the "EPA and the Corps will begin immediately to implement enhanced coordination procedures applicable to the Clean Water Act review of Section 404 permit applications for Appalachian surface coal mining activities that have been submitted prior to the execution of" the MOU).
Concurrently with the June 11, 2009 MOU, the federal defendants
"issued two separate memoranda outlining the formal details of the EC
Process, a two-step process that begins with [the] EPA's MCIR
Assessment and proceeds to a separate coordination process between the
Corps and [the] EPA." Pls.' Mem. at 10. The MCIR Assessment*fn4
involves the EPA applying the 404(b)(1) guidelines and
directing the Corps on which permit applications must go through the
EC Process for further review and coordination. See id. at 11; Defs.'
Mem. at 12. "[T]he Corps was not involved in developing the MCIR
Assessment, despite its statutory role as the permitting authority."
Pls.' Mem. at 11; see also AR at ECP000017-19 (June 11, 2009 Letter
from Administrator Jackson to Acting Assistant Secretary Salt)
(setting forth the "factors [that the] EPA intends to use to screen
and evaluate the pending permit applications to determine which permit
applications require further coordination between [the] EPA and the
Corps"). If the EPA determines during the MCIR Assessment that further
review is necessary, then the pending permit application is subjected
to the EC Process. Defs.' Mem. at 14-15. According to the plaintiffs,
this EC Process is a "burdensome review that is wholly separate from
the process outlined in Section 404, the Corps' implementing
regulations, and the 404(q) [Memorandum]." Pls.' Mem. at 11-12. The
plaintiffs maintain that the EC Process adds a good deal of time to
the permitting process because it "involves discussions among [the]
EPA, the Corps, the permit applicant, and other potentially relevant
agencies during a 60-day coordination period." Id.
The summary judgment standard set forth in Federal Rule of Civil Procedure 56(a) does not apply in a case involving review of a final agency action under the APA because of the limited role of a court in reviewing the administrative record. See Stuttering Found. of Am. v. Springer, 498 F. Supp. 2d 203, 207 (D.D.C. 2007). "Under the APA, . . . 'the function of the district court is to determine whether . . . as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.'" Id. (quoting Occidental Eng'g Co. v. INS, 753 F.2d 766, 769-70 (9th Cir. 1985)); see also Fund for Animals v. Babbitt, 903 F. Supp. 96, 105 (D.D.C. 1995) (explaining that where a case involves a challenge to a final administrative action, a court's review is limited to the administrative record) (citing Camp v. Pitts, 411 U.S. 138, 142 (1973))). "Summary judgment thus serves as the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review." Stuttering Found., 498 F. Supp. 2d at 207 (citing Richards v. INS, 554 F.2d 1173, 1177 & n.28 (D.C. Cir. 1977)).
The parties, and the Court, agree that the cross-motions currently before the Court pose two questions of law. First, do the MCIR Assessment and the EC Process violate the Clean Water Act because they amount to actions in excess of the agency's statutory authority? Second, does the agency's utilization of the MCIR Assessment and the EC Process in the absence of notice and comment violate the APA? The Court will address each question in turn.
A. Whether the EPA's role in the MCIR Assessment and the EC Process exceeds its statutory authority under the Clean Water Act
The APA requires that reviewing courts "shall . . . hold unlawful and set aside agency action . . . found to be . . . in excess of statutory jurisdiction, authority, or limitations, or short of statutory right." 5 U.S.C. § 706(2)(C). In determining whether the MCIR Assessment and the EC Process exceed the statutory authority afforded the EPA by the Clean Water Act, the Court must engage in the two-step inquiry set forth in Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984). The Chevron test directs courts to first determine whether Congress, through the enabling statute, has clearly addressed the precise question at issue. Id. at 842; see also Colo. Wild Horse & Burro Coal. v. Salazar, 639 F. Supp. 2d 87, 90-91 (D.D.C. 2009). If the answer to this first question is in the affirmative, "that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of ...