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Western Wood Preservers Institute v. McHugh

United States District Court, District of Columbia

February 27, 2013

WESTERN WOOD PRESERVERS INSTITUTE, et al., Plaintiffs,
v.
John M. McHUGH, Secretary of the Army, et al., Defendant.

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Mark C. Rutzick, Mark C. Rutzick, Incorporated, Oak Hill, VA, for Plaintiffs.

Angeline Purdy, U.S. Department of Justice, Environmental Defense Section, Mark Arthur Brown, Sr., U.S. Department of Justice, Wildlife & Marine Resources Section, Reuben S. Schifman, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

ELLEN SEGAL HUVELLE, District Judge.

Plaintiffs Western Wood Preservers Institute, Treated Wood Council, Southern Pressure Treaters' Association, Creosote Council, and Railway Tie Association (" plaintiffs" ) have sued John M. McHugh in his official capacity as the Secretary of the Army, the United States Army Corps of Engineers, and Rebecca Blank in her official capacity as Acting Secretary of Commerce (" defendants" or " Corps" ). Plaintiffs challenge the Corps' approval of two regional conditions to nationwide permits under the Clean Water Act, as well as the issuance of certain operating procedures for activities that are regulated by that Act. Before the Court is defendants' motion to dismiss plaintiffs' complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Oct. 22, 2012 [ECF No. 15-1] (" Mot." ).)

FACTUAL BACKGROUND

I. REGIONAL CONDITIONS

The Clean Water Act, 33 U.S.C. §§ 1251-1387, prohibits the discharge of any pollutant into navigable waters unless authorized by an individual or general permit issued by the Army Corps of Engineers. See id. §§ 1311(a), 1344(a), (e). The issuance of an individual permit requires a case-by-case analysis. See id. § 1344(a). In contrast, general permits may be issued on a state, regional, or nationwide basis for categories of activities that " will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment." Id. § 1344(e)(1); 33 C.F.R. § 322.2(f)(1). Any party may engage in an activity within the scope of a general permit. Nationwide general permits may be conditioned or restricted by District and Division Engineers within the Corps, resulting in what are known as regional conditions. 33 C.F.R. § 330.1(d).

On February 16, 2011, the Corps proposed to re-issue 48 existing nationwide permits and two new nationwide permits for the five-year period from 2012 through 2017. ( See Mot. at 7 (citing 76 Fed.Reg. 9174-01, 9175); Second Amended Complaint, Oct. 3, 2012 [ECF. No. 13] (" Compl." ) ¶ 15.) Two district offices of the Corps then announced proposed regional conditions for those nationwide permits: (1) on February 25, 2011, the Portland District proposed a regional condition that would prohibit nationwide permittees from using " wood products treated with biologically harmful leachable chemical components," including various wood preservatives, " to come in contact with waters

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or wetlands" in the State of Oregon (Compl. ¶ 16); and (2) on March 4, 2011, the Alaska District proposed a regional condition that would prohibit nationwide permittees from using products treated with creosote and pentachlorophenol in certain waters in Alaska (Compl. ¶ 17) (collectively, " the Regional Conditions" ). The nationwide permits were published on February 21, 2012. (Compl. ¶ 18 (citing 77 Fed.Reg. 10184).) The Oregon Regional Condition was approved on March 16, 2012 (Compl. ¶ 19), and the Alaska Regional Condition was approved on March 19, 2012 (Compl. ¶ 20).

Plaintiffs allege that the Regional Conditions were issued in violation of mandatory procedural requirements under the Administrative Procedures Act (Claims 1-3, 8, and 9), Army Corps regulations (Claim 4), the National Environmental Policy Act (Claim 5), the Endangered Species Act (Claim 6), and the Regulatory Flexibility Act (Claim 7). (Compl. ¶¶ 26-72.)

II. SLOPES PROCEDURES

The Endangered Species Act, 16 U.S.C. §§ 1531-1544 (" ESA" ), provides certain protections for species listed as " threatened" or " endangered." Id. § 1533(a). Relevant to this case, the Act provides that federal agencies must ensure that any proposed agency action will not " jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [that species' critical habitat]." Id. § 1536(a)(2). The determination of what constitutes a " critical habitat" is to be made by the Secretary of the Interior or the Secretary of Commerce, who have delegated that responsibility to the U.S. Fish and Wildlife Service (" FWS" ) and the National Marine Fisheries Service (" NMFS" ), respectively. Id. § 1532(15). Thus, federal agencies must consult with the FWS or NMFS whenever an agency action " may affect" an endangered or threatened species. 50 C.F.R. § 402.14(a). Formal consultation with those entities results in their issuance of a " biological opinion," assessing whether the species or its habitat is likely to be jeopardized, and if so, identifying any " reasonable and prudent alternatives" that may exist to avoid that jeopardy. 50 C.F.R. § 402.14(h)(3).

In order to streamline the ESA consultation process, the Corps has adopted several Standard Local Operating Procedures for Endangered Species, known as " SLOPES" procedures, for certain recurring activities. Each of these procedures set out design criteria for categories of recurring activities. The Corps then consults with the NMFS to receive a biological opinion on whether the use of those design criteria would jeopardize the existence or critical habitats of any threatened or endangered species. (Compl. ¶ 21.) If the NMFS agrees that a set of SLOPES procedures complies with the ESA, then the Corps may issue permits for any proposed project that complies with those design criteria without seeking further consultation from the NMFS.

On November 2, 2011, the Corps consulted with NMFS on a new set of procedures, known as SLOPES IV, which addressed construction or maintenance of certain in-water and over-water structures in Oregon. (Compl. ¶¶ 21-22; Mot. Ex. A.) One of the design criteria in SLOPES IV provided that treated wood could not be used as part of an in-water or over-water structure. (Compl. ¶ 23.) On April 5, 2012, the NMFS issued a biological opinion that those design criteria would not jeopardize any endangered or threatened species or their critical habitats, and therefore projects that satisfy those design criteria would comply with the ESA. (Compl. ¶ 22; Mot. Ex. B.) If, however, a proposed project

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did not comply with the design criteria in the SLOPES IV procedures, that would not prevent the issuance of a permit for that project, the Corps would simply need to request additional consultation from the NMFS.

Plaintiffs allege that the SLOPES IV procedures were issued in violation of mandatory procedural requirements under the Administrative Procedures Act and the ESA (Claim 10), the National Environmental Policy Act (Claim 11), and ...


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