466 F.Supp.3d 1217
W.D. Wash.2020Background
- The Army Corps reissued Nationwide Permit 48 (NWP 48) in 2017 to authorize many commercial shellfish aquaculture activities nationally; the Court found the Corps lacked adequate CWA and NEPA analyses supporting the permit’s finding of "minimal" individual and cumulative impacts.
- The Corps interpreted the statutory "similar in nature" requirement broadly, covering diverse operations/ecosystems and precluding a meaningful nationwide impact analysis; Corps relied on District-level verifications and a programmatic ESA consultation for Washington State.
- As of October 2019 the Seattle District had verified 898 projects under NWP 48 in Washington (≈35,800 acres); District memoranda often lacked NEPA/CWA-level analyses and sometimes declined compensatory mitigation for eelgrass impacts.
- Plaintiffs challenged NWP 48 as arbitrary and capricious under the Administrative Procedure Act, and unlawful under the Clean Water Act and NEPA; Court previously ruled the Corps violated CWA and NEPA.
- On remedy, the Court weighed the APA’s presumption of vacatur, Ninth Circuit vacatur/remand factors (seriousness of errors; disruptive consequences), and significant economic harms to Washington shellfish growers and tribes if verifications were immediately invalidated.
- The Court vacated NWP 48 in Washington but stayed vacatur 60 days and carved-out limited, time-limited exceptions (harvest/maintenance of already-seeded beds; seeding within 6 months in non-mature-eelgrass areas; treaty-harvest activities), required permit applications within six months, and ordered expedited Corps processing consistent with CWA and NEPA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Lawfulness of NWP 48 under CWA/NEPA | NWP 48 was issued without adequately identifying/quantifying individual and cumulative impacts, violating NEPA and CWA. | Corps contends impacts are minimal and district verifications plus programmatic ESA consultation suffice. | Court held Corps failed to take a "hard look" under NEPA and lacked record evidence supporting "minimal" impacts under the CWA; NWP 48 unlawful in Washington. |
| Adequacy of District verifications / programmatic ESA | Verifications do not cure the Corps’ failure to analyze impacts at rulemaking stage; District-level paperwork lacked NEPA/CWA analyses and omitted mitigation. | Corps/Intervenors contend district reviews, inspections, and state/local/tribal permits provide sufficient safeguards. | Court found District verifications and other oversight did not overcome the fundamental analytical deficiencies in issuing NWP 48. |
| Remedy: vacatur vs. remand without vacatur | Plaintiffs: unlawful agency action ordinarily leads to vacatur; equities do not favor leaving invalid permit in place. | Corps/Intervenors: economic disruption and environmental consequences of immediate vacatur justify remand without vacatur or a stay. | Court applied Ninth Circuit factors, found the Corps’ errors serious and unlikely to be rehabilitated quickly, and denied remand without vacatur; vacated NWP 48 in Washington (with limited, stayed exceptions). |
| Scope and transitional relief | Plaintiffs proposed limited transitional allowances contingent on prompt individual-permit applications. | Intervenors sought broader continuation to avoid business collapse. | Court adopted a compromise: 60-day stay to appeal; explicit, limited carve-outs (harvest/maintenance of already-planted beds; six-month limited seeding in non-eelgrass areas; treaty-related activities), requirement to apply for new permits within six months, and expedited Corps processing. |
Key Cases Cited
- Ohio Valley Envtl. Coal. v. Hurst, 604 F. Supp. 2d 860 (S.D. W. Va. 2009) (agency must thoroughly examine environmental impacts before issuing a nationwide permit)
- Humane Soc’y v. Locke, 626 F.3d 1040 (9th Cir. 2010) (remand without vacatur appropriate only in rare circumstances)
- Cal. Communities Against Toxics v. U.S. EPA, 688 F.3d 989 (9th Cir. 2012) (articulating factors for vacatur and remand)
- Alliance for the Wild Rockies v. U.S. Forest Serv., 907 F.3d 1105 (9th Cir. 2018) (presumption of vacatur and burden on party opposing vacatur)
- Pollinator Stewardship Council v. U.S. EPA, 806 F.3d 520 (9th Cir. 2015) (leave invalid rule in place only when equity demands)
- Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d 146 (D.C. Cir. 1993) (consideration of disruptive consequences of interim change)
- Comcast Corp. v. Fed. Commc'ns Comm'n, 579 F.3d 1 (D.C. Cir. 2009) (rehabilitation of agency rationale relevant to vacatur analysis)
- AquAlliance v. U.S. Bureau of Reclamation, 312 F. Supp. 3d 878 (E.D. Cal. 2018) (discussion of vacatur where environmental risks and practical consequences weigh in equities)
- Sierra Club v. U.S. Army Corps of Eng'rs, 803 F.3d 31 (D.C. Cir. 2015) (for a project to qualify under a general permit, district engineer must find no more than minimal adverse effects)
- United States v. Washington, 157 F.3d 630 (9th Cir. 1998) (adjudicated treaty harvest rights)