United States District Court, District of Columbia
JOHN D. BATES, UNITED STATES DISTRICT JUDGE.
This case involves a challenge by several conservation groups to the Army Corps of Engineers' decision to reissue a nationwide permit authorizing the discharge of dredged and fill material to construct bank stabilization projects. The conservation groups allege that the U.S. Army Corps of Engineers (the "Corps") issued the permit in violation of the Administrative Procedure Act ("APA"), the National Environmental Policy Act ("NEPA"), the Clean Water Act ("CWA"), and the Endangered Species Act ("ESA"). Because these plaintiffs lack standing to bring this action, it will be dismissed without prejudice for lack of jurisdiction.
This lawsuit was brought by three conservation groups, National Wildlife Federation, Ogeechee Riverkeeper, and Savannah Riverkeeper, whose membership includes outdoor enthusiasts who spend significant time recreating in the river basins of the Georgia coast. Second Am. Compl. [ECF No. 15] ¶15. Jesse Demonbreun-Chapman, for example, a member of Ogeechee Riverkeeper, regularly kayaks in the Ogeechee River basin. Demonbreun-Chapman Decl. [ECF No. 22-1] ¶ 9. And Wanda Scott, a member of Savannah Riverkeeper, frequently kayaks and sails in the Savannah River basin. Scott Decl. [ECF No. 22-1] ¶5. They enjoy the natural beauty of the Georgia coast-a beauty they say has been marred by the construction of bulkheads (a type of erosion-prevention structure) that replace portions of the natural shoreline with man-made infrastructure. See Demonbreun-Chapman Decl. ¶ 10; Scott Decl. ¶ 7.
Although the Clean Water Act generally prohibits the construction of such structures, insofar as they involve the discharge of dredged and fill material into U.S. waters, such activity can proceed if the Corps issues a permit. 33 U.S.C. § 1311(a). There are two types of CWA permits: individual permits that are tailored to specific projects, id. § 1344(a), and general permits that authorize categories of actions, id. § 1344(e). The bulkheads disturbing plaintiffs' peace along the Georgia coast were authorized pursuant to a general permit. General permits may be promulgated by the Corps for a category of action when that activity will cause only minimal adverse environmental effects on both an individual and cumulative level. See § 1344(e)(1). The permits "may extend to activities throughout a state, a region, or the nation; must be reevaluated at least every five years if they are to be reissued; and may contain general conditions applicable to all projects subject to approval thereunder." Sierra Club v. U.S. Army Corps of Eng'rs, 803 F.3d 31, 39 (D.C. Cir. 2015). Before issuing a nationwide permit, the Corps "conducts the impact analysis specified in Subparts C through F of the Environmental Protection Agency's Clean Water Act Section 404(b)(1) guidelines." Ouchita Riverkeeper, Inc. v. Bostick, 938 F.Supp.2d 32, 35 (D.D.C. 2013) (citing 40 C.F.R. Part 230). Once a general permit has been issued, individual activities falling within its ambit and meeting its general conditions may usually proceed without further ado. See 33 C.F.R. §§ 330.1(e)(1); 330.2(c).
The general permit at issue in this lawsuit, nationwide permit 13 ("NWP 13"), authorizes bank stabilization activities like those in the Ogeechee River and Savannah River basins. It was issued on February 21, 2012, along with 50 other nationwide general permits. See Reissuance of Nationwide Permits, 77 Fed. Reg. 10, 184, 10, 272 (Feb. 21, 2012). In issuing NWP 13, the Corps estimated that between 2012 and 2017 approximately 17, 500 projects would be authorized under its auspices. J. A. Volume I [ECF No. 31] at 290. One example important to this case is a 177-foot NWP 13 bulkhead that was constructed on the relatively undeveloped 8.1-mile Bull River in the Savannah River basin. See Second Am. Compl. ¶ 130; Pls.' Reply in Supp. of Mot. Summ. J. [ECF No. 29] at 6 n.2; Scott Decl. ¶ 8. Plaintiffs point to this bulkhead as evidence of the harm caused by NWP 13. Among the harms alleged: bulkheads cause erosion, impair water quality, and destroy wildlife habitat, including the habitat of endangered and threatened species. Second Am. Compl. ¶ 17. At the heart of this lawsuit is the conservation groups' contention that the Corps failed adequately to evaluate these environmental impacts before issuing NWP 13.
Due to the alleged insufficiency of the Corps' analysis of the environmental impacts, the conservation groups claim that the issuance of NWP 13 violates the CWA and NEPA. The Corps' environmental impact analysis required by the CWA and its assessment of the environmental considerations required by NEPA is presented in the agency's NWP 13 Decision Document. See J.A. Volume 1 at 119-63. The Corps concluded that "[t]he individual and cumulative adverse effects on the aquatic environment resulting from the activities authorized by this NWP will be minimal." Id. at 156. The conservation groups attack this conclusion from many angles; for example, they argue that the Corps failed to complete the 404(b)(1) Guidelines impact analysis required by the CWA before determining that the permit would have minimal cumulative adverse effects. See Pls.' Mot. Summ. J. [ECF No. 22] at 24-30. The Corps' NEPA analysis found that the "issuance of this NWP will not have a significant impact on the quality of the human environment." J. A. Volume 1 at 162. The conservation groups argue that the Corps inadequately justified this finding of no significant impact and therefore violated NEPA by failing to prepare an environmental impact statement ("EIS"). Pls.' Mot. Summ. J. at 33-39.
The conservation groups also argue that the Corps violated the Endangered Species Act, which "is designed to ensure that endangered species are protected from government action." Ctr. for Biological Diversity v. U.S. Dep't of Interior, 563 F.3d 466, 474 (D.C. Cir. 2009). Under Section 7(a)(2) of that Act, "each federal agency is required to ensure that any action undertaken by the agency 'is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification' of critical animal habitats." Id. (quoting 16 U.S.C. § 1536(a)(6)). "If an agency concludes that its action 'may affect' a listed species or critical habitat, then the agency must pursue either formal or informal consultation with the [National Marine Fisheries Service] or [the] Fish and Wildlife [Service]." Id. at 474-75. The NWP 13 Decision Document found that the "activities authorized by this NWP will not jeopardize the continued existence or [sic] any listed threatened and endangered species or result in the destruction nor adverse modification of critical habitat." J. A. Volume 1 at 292. The conservation groups challenge this conclusion as arbitrary and capricious and argue, therefore, that the Corps violated the ESA by not consulting with the FWS. Pls.' Mot. Summ. J. at 39-42; Pls.' Reply at 24-26.
The conservation groups brought this lawsuit against the Corps as a facial challenge to NWP 13 and an as-applied challenge to the Bull River bulkhead approval. They ask the Court to vacate NWP 13 as well as the Bull River bulkhead authorization and to enjoin the Corps from authorizing future projects under the general permit. Second Am. Compl. at 39. In addition to responding on the merits, the Corps argues in its cross-motion for summary judgment that the conservation groups lack standing to sue despite their submission of declarations executed by six of their members that seek to demonstrate that the declarants are injured by the Corps' reissuance of NWP 13. See Defs.' Cross-Mot. Summ. J. [ECF No. 25] at 13-16. The Court will therefore begin, as it must, with whether the conservation groups have standing to bring this lawsuit.
"An association has standing to sue under Article III of the Constitution of the United States only if (1) at least one of its members would have standing to sue in his own right; (2) the interest it seeks to protect is germane to its purpose; and (3) neither the claim asserted nor the relief requested requires the member to participate in the lawsuit." Am. Trucking Ass'ns, Inc. v. Fed. Motor Carrier Safety Admin., 724 F.3d 243, 247 (D.C. Cir. 2013) (internal quotation marks omitted). The Court has no reason to doubt that the conservation groups satisfy the second and third requirements for associational standing. The issue, then, is whether at least one of the plaintiffs' members has standing under Article III. "The irreducible constitutional minimum of Article III standing requires satisfaction of three elements: (1) a concrete and particularized and actual or imminent injury-in-fact that is (2) fairly traceable to the challenged action of the defendant . . . and (3) likely to be redressed by a favorable decision." In re: Idaho Conservation League, 811 F.3d 502, 508 (D.C. Cir. 2016) (internal quotation marks omitted) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)).
These requirements are modified somewhat in cases where plaintiffs claim they have sustained a procedural injury, meaning an injury resulting from the violation of a procedural right created by statute. See Ctr. for Law & Educ. v. Dep't of Educ, 396 F.3d 1152, 1157 (D.C. Cir. 2005). In order to establish standing regarding a procedural injury, plaintiffs must show "some concrete interest" that is "adversely affected by the procedural deprivation." WildEarth Guardians v. Jewell, 738 F.3d 298, 305 (D.C. Cir. 2013); see Ctr. for Law & Educ, 396 F.3d at 1159 ("Appellants must show both (1) that their procedural right has been violated, and (2) that the violation of that right has resulted in an invasion of their concrete and particularized interest"). "The person who has been accorded a procedural right to protect [her] concrete interests, " though, "can assert the right without meeting all the normal standards for redressability and immediacy." Lujan, 504 U.S. at 572 n.7.
The conservation groups assert both "a substantive injury caused by the application of NWP 13 to the Bull River bulkhead and other bank stabilization projects in the Savannah and Ogeechee Rivers; and ... a procedural injury caused by the Corps' failure to adequately evaluate the environmental impact of NWP 13 projects." Pls.' Reply at 2. The Court will begin its analysis by determining whether the Corps has established a substantive injury-in-fact for each of its claims. See Davis v. Fed. Election Comm'n., 554 U.S. 724, 734 (2008) ("[A] plaintiff must demonstrate standing for each claim . . . and for each form of relief . . . ." (internal quotation marks omitted)).
The first claim to fall is plaintiffs' claim of recreational injury arising from environmental harm caused by agency action in violation of the ESA. It is well-established that the desire to "observe an animal species, even for purely esthetic purposes, is ... a cognizable interest for purpose[s] of standing." See Lujan, 504 U.S. at 562-63. But the injury-in-fact test also requires that one of the plaintiffs' members having such an interest be directly affected by the agency action. LI at 563. Logically, in order for a plaintiffs desire to view an animal species to be directly affected by the agency action, such viewing must take place at the area affected by the challenged activity. SeeId. at 565-66 ("[A] plaintiff claiming injury from environmental damage must use the area affected by the challenged activity . . . ."); see also Fed. Forest Res. Coal, v. Vilsack, 100 F.Supp.3d 21, 43 (D.D.C. 2015) ("[P]laintiffs can demonstrate standing only if application of the regulations by the Government will affect them in the manner described in the complaint." (internal quotation marks and brackets omitted)). None of the plaintiffs' declarations establish this essential fact. Take, for example, Emily Markesteyn, who enjoys seeing endangered loggerhead sea turtles, piping plovers, and wood storks on Wassaw Island and in the Wilmington River. Markesteyn Decl. [ECF No. 22-1] ¶11. Markesteyn has established an interest in viewing these endangered species, but that interest is not linked to her use of an area affected by existing NWP 13 structures or ...