454 F.Supp.3d 985
D. Mont.2020Background
- Plaintiffs challenged the U.S. Army Corps of Engineers’ 2017 reissuance of Nationwide Permit 12 (NWP 12), alleging violations of the ESA, NEPA, and the CWA; two pipeline-crossing claims were stayed.
- NWP 12 authorizes discharges to construct/maintain utility lines (including pipelines), generally limiting loss to 0.5 acre per single and complete project; linear crossings treated as separate projects.
- Permittees must submit preconstruction notifications (PCNs) above a 0.1-acre threshold; General Condition 18 bars use of a nationwide permit if the activity is likely to jeopardize listed species or critical habitat.
- The Corps concluded in its 2017 Decision Document that NWP 12 would have "no more than minimal" effects, issued a FONSI, and made a "no effect" ESA determination without consulting the Services.
- The district court held that the Corps’ "no effect" decision was arbitrary and capricious under the APA: the Corps should have initiated ESA Section 7(a)(2) programmatic consultation, so the court vacated and remanded NWP 12 and enjoined its use pending consultation; NEPA and CWA claims were denied without prejudice pending the ESA process.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Corps had to initiate ESA §7 programmatic consultation for reissuing NWP 12 | Corps must consult because NWP 12 "may affect" listed species/critical habitat (programmatic review required) | Corps reasonably concluded NWP 12 had "no effect" and project-level review plus General Condition 18 suffice | Court: Corps acted arbitrarily and capriciously; must initiate §7 consultation; NWP 12 vacated and remanded; use enjoined |
| Whether General Condition 18 properly substitutes for Corps’ ESA "may affect" determination | GC18 improperly delegates the Corps’ initial ESA effect determination to non-federal permittees | GC18 and project-level PCN process ensure protection so no programmatic consultation needed | Court: GC18 cannot relieve Corps of its duty; delegation was improper |
| Whether the Corps’ NEPA analysis (EA/FONSI) was adequate | EA insufficient to assess environmental impacts of NWP 12; an EIS may be required | EA/FONSI adequately supported the decision not to prepare an EIS | Court: Decision reserved; denied summary judgment without prejudice pending ESA consultation (Corps may need to revise NEPA analysis) |
| Whether NWP 12 complies with CWA §404 minimal-effects requirement given cumulative impacts | Repeated use for linear projects causes more-than-minimal individual/cumulative effects | Per-crossing limits and PCN/district review keep effects minimal | Court: Decision reserved; denied summary judgment without prejudice pending ESA consultation (CWA analysis may change) |
Key Cases Cited
- Nat’l Wildlife Fed’n v. Brownlee, 402 F. Supp. 2d 1 (D.D.C. 2005) (district court held Corps must consult on nationwide permits rather than rely solely on project-level review)
- W. Watersheds Project v. Kraayenbrink, 632 F.3d 472 (9th Cir. 2011) (agency "no effect" determination rejected where substantial evidence showed programmatic action "may affect" listed species)
- Lane County Audubon Soc’y v. Jamison, 958 F.2d 290 (9th Cir. 1992) (agency must consult on programmatic strategies that may affect listed species)
- Conner v. Burford, 848 F.2d 1441 (9th Cir. 1988) (biological opinions must be coextensive with an agency’s action; cannot defer programmatic analysis to project level)
- Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv., 789 F.3d 1075 (9th Cir. 2015) (programmatic consultation required where agency action affects listed species)
- Chevron U.S.A. v. Nat. Res. Def. Council, 467 U.S. 837 (U.S. 1984) (deference to reasonable agency interpretations)
- Kisor v. Wilkie, 139 S. Ct. 2400 (U.S. 2019) (limits and framework for Auer deference to agency interpretations)
- Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768 (9th Cir. 2006) (administrative-record review appropriate on summary judgment under the APA)