FRIENDS OF THE SANTA CLARA RIVER; SANTA CLARITA ORGANIZATION FOR PLANNING THE ENVIRONMENT v. UNITED STATES ARMY CORPS OF ENGINEERS; KIMBERLY COLLOTON, in her official capacity as Commander and District Engineer of the Los Angeles District of the U.S. Army Corps of Engineers; THE NEWHALL LAND AND FARMING COMPANY, a California limited partnership
No. 15-56337
United States Court of Appeals for the Ninth Circuit
April 9, 2018
D.C. No. 2:14-cv-01667-PSG-CW; Argued and Submitted February 10, 2017; Submission Vacated June 23, 2017; Resubmitted April 2, 2018; Pasadena, California
FOR PUBLICATION
OPINION
Appeal from the United States District Court for the Central District of California Philip S. Gutierrez, District Judge, Presiding
Before: Andrew J. Kleinfeld, Sandra S. Ikuta, and Jacqueline H. Nguyen, Circuit Judges.
Opinion by Judge Ikuta
SUMMARY*
Environmental Law
The panel affirmed the district court‘s summary judgment in favor of the U.S. Army Corps of Engineers and intervenor Newhall Land and Farming in an action challenging the Corps’ issuance of a permit, pursuant to Section 404 of the Clean Water Act, to Newhall Land, authorizing the discharge of materials into the Santa Clara River as part of the Newhall Ranch project in Los Angeles County near Santa Clarita, California.
After this case was argued on appeal, the Corps and Newhall Land settled with four of the six plaintiffs, and stipulated to their voluntary dismissal. The Corps acknowledged that the remaining plaintiffs, Santa Clarita Organization for Planning the Environment and Friends of the Santa Clara River, had standing to pursue their Clean Water Act claim. The panel held that the plaintiffs also had standing for their National Environmental Policy Act (“NEPA“) and Endangered Species Act (“ESA“) claims.
The panel rejected challenges under the Clean Water Act to the Corp‘s permit issuance. The panel concluded that the Corps complied with its obligations under the Clean Water Act because the Corps properly considered practicability as required under the Section 404(b) Guidelines.
The panel further concluded that the Corps complied with the ESA because its determination that Southern California steelhead would not be affected by the Project, and its corresponding decision not to consult with the National Marine Fisheries Service, were not arbitrary and capricious.
For similar reasons, the panel concluded that the Corps reasonably assessed the Project‘s potential impacts to the steelhead and provided sufficient discussion to satisfy its NEPA obligations.
COUNSEL
John Buse (argued) and Aruna Prabhala, Center for Biological Diversity, Oakland, California; Dean Wallraff, Advocates for the Environment, Shadow Hills, California; for Plaintiffs-Appellants.
Anna Katselas (argued), Lesley Lawrence-Hammer, Norman L. Rave, Devon Lehman McCune, Jennifer Scheller Neumann, and Andrew C. Mergen, Attorneys; Eric Grant, Deputy Assistant Attorney General; Jeffrey H. Wood, Acting Assistant Attorney General; Environment & Natural Resources Division, United States Department of Justice, Washington, D.C., for Defendants-Appellees.
James F. Rusk (argued) and Robert J. Uram, Sheppard Mullin Richter & Hampton LLP, San Francisco, California; David P. Hubbard v. Mark J. Dillon, Gatzke Dillon & Ballance LLP, Carlsbad, California; Miriam A. Vogel, Morrison and Foerster LLP, Los Angeles, California; for Intervenor-Defendant-Appellee.
IKUTA, Circuit Judge:
Under Section 404 of the Clean Water Act,
The Santa Clarita Organization for Planning the Environment (SCOPE) and the Friends of the Santa Clara River (Friends)1 challenge the permit issuance under the Clean Water Act (CWA), the National Environmental Policy Act (NEPA), and the Endangered Species Act (ESA).2 We conclude that the Corps complied with the numerous requirements prescribed by each of these statutes, and we affirm.
We begin by reviewing the legal framework.
A
Under the CWA, the discharge of any pollutant (including dredged or fill material) to navigable waters is unlawful unless the discharge complies with various statutory requirements, including obtaining a permit issued by the Corps under Section 404 of the CWA,
When an applicant applies for a permit for a discharge to wetlands, the Corps evaluates whether to grant or deny the application under guidelines developed by the Environmental Protection Agency (EPA) in conjunction with the Secretary of the Army and published in 40 C.F.R. part 230. See
The Guidelines further provide that “[a]n alternative is practicable if it is available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes.”
In determining the overall project purpose, the Corps will “normally accept decisions” by state, local, and tribal governments with respect to “zoning and land use matters,” unless “there are significant issues of overriding national importance.”
In analyzing “practicable alternatives,” the Corps must determine whether a project is “water dependent.” A project that “does not require access or proximity to or siting within the special aquatic site in question to fulfill its basic purpose” is “not ‘water dependent.‘”
B
Before issuing a permit allowing the discharge of dredge or fill materials into wetlands, the Corps must comply with NEPA,
The Corps‘s procedures for implementing NEPA include directions for preparing an environmental impact statement (EIS) for a decision on a permit application. See
C
The Corps must also comply with the ESA,
After the Corps has completed its review, it will determine whether a permit
II
We next turn to the lengthy history of the Newhall Ranch Project and the activities preceding the Corps‘s issuance of the Section 404 Permit.
Starting in the early 1990s, Newhall Land, a land management company, and Los Angeles County (the County) began developing a land use plan (the Newhall Ranch Specific Plan) to guide the development of the Newhall Ranch Project. As envisioned in the Specific Plan, the Project would be a large-scale residential, commercial, and industrial development in northwestern Los Angeles County near the city of Santa Clarita. It would encompass approximately 12,000 acres, including 5.5 linear miles of the Santa Clara River and its tributaries. In compliance with the California Environmental Quality Act (CEQA),
Environmental groups immediately brought actions in state court to challenge the County‘s approval of the Specific Plan. In August 2000, the state court ordered the County to vacate the project approval and conduct further environmental analyses. See Ctr. for Biological Diversity v. Dep‘t of Fish & Wildlife, 224 Cal. App. 4th 1105, 1112 (2014), rev‘d on other grounds, 62 Cal. 4th 204 (2015). Following numerous additional hearings and further analyses, the County adopted a revised Specific Plan for the Newhall Ranch Project in May 2003. As revised, the Specific Plan provided for the development of more than 21,000 residential units and 5.5 million square feet of commercial, office, and retail uses in a series of “interrelated villages.” Id. at 1113. The state court approved the amended Specific Plan, and dismissed the environmental plaintiffs pursuant to a settlement agreement. Id.
In December 2003, Newhall Land applied to the Corps for a Section 404 Permit that would allow the construction of the infrastructure necessary for the development authorized by the Specific Plan. Pursuant to its permitting regulations, the Corps determined it was the lead agency for purposes of NEPA compliance. See
The Corps published a notice of intent to prepare an EIS/EIR in the Federal Register in 2004 and a second one in 2005, and held two public scoping meetings to determine the scope of the issues to be addressed and to identify the significant issues relating to the action. See
As part of its analysis of the Project‘s water quality, biological resources, and cumulative impacts, the Final EIS/EIR discussed the Project‘s water discharges into the Santa Clara River and the potential impacts on the Southern California steelhead, an endangered species. The Corps determined that the Project area was not part of the steelhead‘s critical habitat, but considered the Project‘s potential to affect steelhead and its habitat downstream of the Project area through increased stormwater discharges. While the Santa Clara River generally contains water on a year-round basis, a portion of the river between the Project area and the downstream steelhead areas is dry most of the year, so Project discharges would generally not impact steelhead. (This dry reach of the river is informally known as the “Dry Gap.“) In months when there is sufficient rainfall, however, stormwater runoff may flow through the Dry Gap, and during those periods Project discharge might reach steelhead populations. The Corps nonetheless determined that these changes would not have a substantial adverse effect on the southern steelhead.
In reaching this conclusion, the Corps analyzed the combination of wastewater and stormwater discharges from the Project, and concluded that the Project‘s total discharges would have a dissolved-copper concentration of 9.0 micrograms-per-liter. This concentration is less than the existing dissolved-copper concentration in the Santa Clara River that occurs during storm events large enough to flow through the Dry Gap. In addition, this concentration would be less than the limit of 32 micrograms-per-liter of dissolved copper that the California Toxics Rule (CTR), an EPA-promulgated regulation establishing water quality standards in California, set for the Santa Clara River.6 Accordingly, the Corps concluded in the Final EIS/EIR that the Project would not affect the steelhead, and therefore it was not required to consult with NMFS to discharge its responsibilities under the ESA. See
The Corps solicited additional comments that would be considered “before the Corps finalizes the Record of Decision (ROD) for the Federal action associated with the proposed project.” Among other letters, it received a comment letter from Ventura Coastkeeper expressing its concern that the Project‘s discharges would contain dissolved copper at a concentration that would harm Southern California steelhead. In August 2010, the Corps also received a letter from the EPA, offering comments on the Final EIS/EIR and suggesting, among other things, that the Corps‘s practicability analysis for different alternatives should consider the expected revenues from the Project. The EPA subsequently sent a letter in August 2011, indicating that it would not seek review of the Corps‘s permit decision, citing significant improvements to the Project design and additional mitigation measures that
On August 31, 2011, the Corps issued a ROD and a provisional Section 404(b) permit to Newhall Land. The ROD addressed the comments the Corps had received on the Final EIS/EIR. In responding to Ventura Coastkeeper‘s comment letter, the Corps summarized the results of a Supplemental Water Quality Analysis conducted by a third-party consultant in May 2011, which showed that the additional stormwater retention measures incorporated into the Project would further reduce the dissolved-copper concentration in the Project‘s stormwater discharges.
The Corps also appended its Final Section 404(b)(1) Guidelines Evaluation (Final Evaluation) to the ROD. The Final Evaluation stated that it was not a stand-alone document, but relied heavily on the information provided in the Draft EIS/EIR and the Final EIS/EIR. Like the Final EIS/EIR, the Final Evaluation concluded that the Project would not affect the steelhead and therefore consultation with NMFS pursuant to the ESA was not required.
The Final Evaluation defined the “overall project purpose” for purposes of analyzing the practicability of alternatives as follows:
[T]he development of a master planned community with interrelated villages in the vicinity of the Santa Clarita Valley in northwestern Los Angeles County that achieves the basic objectives of the Specific Plan by providing a broad range of land uses of approximately the same size and proportions as approved in the Specific Plan, including residential, mixed-use, commercial and industrial uses, public services (schools, parks, etc.), and a water reclamation plant.
The Corps determined that the overall project purpose also included 15 of the 37 basic objectives of the Specific Plan. The Corps stated that the “basic project purpose,” which is used to determine whether the project is water dependent, was “to provide housing and commercial/industrial/mixed-use development.” Because the basic project purpose was not water dependent, the Corps determined that the rebuttable presumption that practicable alternatives were available applied, but was rebutted because the Corps had analyzed 23 alternative sites and concluded that they were impracticable.
The Final Evaluation considered the eight on-site alternatives described and analyzed in the Final EIS/EIR, in order to determine which one was the “least environmentally damaging practicable alternative.” Bering Strait Citizens, 524 F.3d at 955. These alternatives included a no-build alternative (Alternative 1), Newhall Land‘s preferred alternative (Alternative 2), and six other alternatives (Alternatives 3 through 7 and Modified Alternative 3), each with varying project sizes and resulting impacts on waters of the United States. Alternative 2, Newhall Land‘s alternative, proposed developing 2,864.2 acres, which would include 20,885 residential units7 and 5.5 million square feet of commercial space. It would have permanently filled 93.3 acres of waters of the United States, including 20.5 acres of wetlands, and would have temporarily filled 33.3 acres of waters of the United States, including 11.2 acres of wetlands.
In March 2014, SCOPE sued the EPA, the Corps, and their respective agency officials in district court, alleging violations of the CWA, NEPA, and the NHPA.8 Newhall Land successfully moved to intervene as a defendant. In January 2015, SCOPE amended its complaint to assert an additional claim under the ESA. On cross-motions for summary judgment, the district court granted summary judgment in favor of the Corps and Newhall Land on June 30, 2015, the judgment that SCOPE now appeals.
III
Before reaching the merits of SCOPE‘s claims, we consider whether the plaintiffs have standing to bring their NEPA and ESA claims. After this case was argued on appeal, the Corps and Newhall Land settled with four of the six plaintiffs, and stipulated to voluntary dismissal of those plaintiffs. In supplemental briefing on the effect of these dismissals, the Corps and Newhall Land argue that while both of the remaining plaintiffs, SCOPE and Friends, have standing to pursue their CWA claim, they lack standing to pursue their NEPA and ESA claims. We may consider the jurisdictional question of Article III standing for the first time on appeal. See Wash. Envtl. Council v. Bellon, 732 F.3d 1131, 1139 (9th Cir. 2013). Because “[t]he need to satisfy [Article III standing] requirements persists throughout the life of the lawsuit,” if circumstances change such that the plaintiffs before us no longer possess standing, we must dismiss the affected claims. Wittman v. Personhuballah, 136 S. Ct. 1732, 1736–37 (2016). We conclude, however, that SCOPE and Friends possess standing for their NEPA and ESA claims.
A
“[A] plaintiff must demonstrate standing for each claim he seeks to press and for each form of relief that is sought.” Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017) (quoting Davis v. Fed. Election Comm‘n, 554 U.S. 724, 734 (2008)). When there are multiple plaintiffs, “[a]t least one plaintiff must have standing to seek each form of relief requested in the complaint.” Id. at 1651. In order for an organizational plaintiff such as SCOPE or Friends to have standing, it must demonstrate that at least one of its “members would otherwise have standing to sue in [the member‘s] own right, the interests at stake are germane to the organization‘s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Wash. Envtl. Council, 732 F.3d at 1139 (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000)).
A plaintiff seeking relief in federal court must establish the three elements that constitute the “irreducible constitutional minimum” of Article III standing, Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992), namely, that the plaintiff has “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision,” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).
This standard “is softened when a plaintiff asserts a violation of a procedural right” conferred by a federal statute, San Luis & Delta-Mendota Water Auth. v. Haugrud, 848 F.3d 1216, 1232 (9th Cir. 2017) (internal quotation marks and citation omitted), because “the causation and redressability requirements [for standing] are relaxed,” WildEarth Guardians v. U.S. Dep‘t of Agric., 795 F.3d 1148, 1154 (9th Cir. 2015) (citation omitted). In order to establish an injury in fact in the context of a claimed procedural error in an agency‘s decisionmaking process, a plaintiff must show that “(1) the [agency] violated certain procedural rules; (2) these rules protect [a plaintiff‘s] concrete interests; and (3) it is reasonably probable that the challenged action will threaten their concrete interests.” Haugrud, 848 F.3d at 1232 (alterations in original) (quoting Nuclear Info. & Res. Serv. v. Nuclear Regulatory Comm‘n, 457 F.3d 941, 949 (9th Cir. 2006)).
To establish causation and redressability, the plaintiff must show that “the relief requested—that the agency follow the correct procedures—may influence the agency‘s ultimate decision.” WildEarth Guardians, 795 F.3d at 1156 (quoting Salmon Spawning & Recovery All. v. Gutierrez, 545 F.3d 1220, 1226 (9th Cir. 2008)). In the NEPA context, plaintiffs may demonstrate redressability with a showing that the agency‘s decision could “could be influenced by the
environmental considerations that NEPA requires an agency to study.” Laub v. U.S. Dep‘t of Interior, 342 F.3d 1080, 1087 (9th Cir. 2003). A plaintiff does not need to show that the correction of the alleged procedural error would lead to a decision more favorable to plaintiffs’ interests. See id. (“In order to establish redressability, plaintiffs asserting the inadequacy of an agency‘s EIS ... need not show that further analysis by the government would result in a different conclusion.“); Cantrell v. City of Long Beach, 241 F.3d 674, 682 (9th Cir. 2001) (“[P]laintiffs asserting procedural standing need not demonstrate that the ultimate outcome following proper procedures will benefit them.“). Similarly, plaintiffs asserting violations of the ESA‘s consultation requirements are “not required to establish what a Section 7 consultation would reveal, or what standards would be set.” Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv., 789 F.3d 1075, 1082 (9th Cir. 2015).While “[t]his is not a high bar to meet . . . the redress[a]bility requirement is not toothless in procedural injury cases.” Salmon Spawning, 545 F.3d at 1227. Procedural rights “can loosen ... the redressability prong,” not eliminate it. Summers v. Earth Island Inst., 555 U.S. 488, 497 (2009). For instance, we have found redressability lacking where an agency‘s correction of a
In this case, SCOPE and Friends assert procedural violations of NEPA and ESA. See WildEarth Guardians, 795 F.3d at 1154 (noting that a claim “alleging a NEPA violation” is procedural); Nat. Res. Def. Council v. Jewell, 749 F.3d 776, 783 (9th Cir. 2014) (en banc) (“[A]lleged violations of Section 7(a)(2)‘s consultation requirement constitute a procedural injury for standing purposes.“).
B
Newhall Land argues that the plaintiffs have failed to show standing even under our relaxed standards. According to Newhall Land, the plaintiffs have not shown that the Corps‘s alleged procedural deficiencies under NEPA and ESA affected their concrete interests, because plaintiffs allege only that the Corps conducted an inadequate analysis of the Project‘s impacts on Southern California steelhead under NEPA, and that the Corps failed to engage in consultation with the NMFS regarding those impacts as required under the ESA.9 But, Newhall Land argues, the plaintiffs’ interests are limited to recreation and natural resources within the Project area, where steelhead are not present.
This argument fails, however, because under our relaxed standard, the plaintiffs need show only that “the challenged [agency] action will threaten their concrete interests,” Ctr. for Food Safety v. Vilsack, 636 F.3d 1166, 1171 (9th Cir. 2011) (emphasis added), not that the alleged procedural deficiency will threaten such interests. Here the challenged agency action is the Corps‘s issuance of the Section 404 permit, and so the plaintiffs need show only that the issuance of the permit will affect their interest in recreation and aesthetics in the Project area; they do not need to show that the alleged inadequacies in the Corps‘s analysis of the Project‘s impact on steelhead will have such an effect. See, e.g., id. at 1172; Nuclear Info. & Res. Serv., 457 F.3d at 952; City of Sausalito v. O‘Neill, 386 F.3d 1186, 1197 (9th Cir. 2004). Two other circuits have likewise rejected Newhall Land‘s argument that the plaintiffs’ injury must be tied to the particular procedural deficiency alleged. See WildEarth Guardians v. U.S. Bureau of Land Mgmt., 870 F.3d 1222, 1231 (10th Cir. 2017); WildEarth Guardians v. Jewell, 738 F.3d 298, 307 (D.C. Cir. 2013) (“The Appellants’ aesthetic injury follows from an inadequate FEIS whether or not the inadequacy concerns the same environmental issue that causes their injury.“). SCOPE and Friends have concrete interests at stake, see Laidlaw, 528 U.S. at 183, and it is reasonably probable that those interests will be threatened by the “challenged action,” Ctr. for Food Safety, 636 F.3d at 1171, the issuance of the Section 404 permit.
We also reject the argument that plaintiffs failed to show causation and redressability. Contrary to Newhall Land‘s argument, SCOPE and Friends do not need to show that the Corps‘s correction of the alleged procedural error would lead to a favorable decision such as a decision not
Here, such a reasonable probability exists. Plaintiffs suggest that if the Corps conducted further analysis, it would become aware of more significant impacts to steelhead. Because the Project‘s stormwater discharge results from paving over surfaces that would otherwise absorb rainfall, it is plausible that mitigating those impacts would result in alterations or reductions to the Project‘s footprint. Moreover, if the analysis revealed that the Project would “affect” steelhead,
IV
Because this case involves review of a final agency determination under the Administrative Procedure Act,
“Review under the arbitrary and capricious standard is deferential....” Nat‘l Ass‘n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 658 (2007). “[O]ur proper role is simply to ensure that the [agency] made no ‘clear error of judgment’ that would render its action ‘arbitrary and capricious,‘” Lands Council v. McNair, 537 F.3d 981, 993 (9th Cir. 2008) (en banc), overruled on other grounds by Winter v. Nat. Res. Def. Council, 555 U.S. 7 (2008), and we require only “a rational connection between facts found and conclusions made’ by the defendant agencies.” Finley, 774 F.3d at 617 (quoting League of Wilderness Defs./Blue Mountains Biodiversity Project v. Connaughton, 752 F.3d 755, 760 (9th Cir. 2014)). Accordingly, “we will not vacate an agency‘s decision unless [the agency] ‘has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.‘” Nat‘l Ass‘n of Home Builders, 551 U.S. at 658 (quoting Motor Vehicle Mfrs. Ass‘n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).
“This approach ... requires us to defer to an agency‘s determination in an area involving a ‘high level of technical expertise.‘” Lands Council, 537 F.3d at 993 (citation omitted). That is, “[w]e are to be ‘most deferential’ when the agency is ‘making predictions, within its [area of] special expertise, at the frontiers of science.‘” Id. (alteration in original) (quoting Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1099 (9th Cir. 2003)). We cannot “substitute our judgment for the agency‘s in determining which scientific data to credit, so long as the conclusion is supported by adequate and reliable data.” Finley, 774 F.3d at 620.
V
A
We first consider SCOPE‘s CWA claim. SCOPE argues that the Corps failed to select the least environmentally damaging practicable alternative in issuing a Section 404(b) permit. SCOPE claims that in determining the overall project purpose, the Corps incorporated Newhall Land‘s project objectives and the County‘s Specific Plan objectives and therefore relied on an overly specific purpose that unduly narrowed the range of available alternatives.
We disagree. As explained above, the Corps not only may, but must, consider Newhall Land‘s project objectives, provided that those project objectives are not so narrowly defined as to preclude alternatives, see Jones, 741 F.3d at 1002; Sylvester, 882 F.2d at 409, and must also consider the Specific Plan objectives,
The Corps could reasonably reject Alternatives 7 and 8 because their substantial reductions in the extent of developable land (44 percent and 25 percent, respectively) would prevent the Project from meeting elements of the overall project purpose and their substantial increase in costs (51 percent and 28 percent, respectively) would render them impracticable. Nor was the Corps arbitrary or capricious in rejecting Alternative 6 on the ground that it reduced developable space in a manner that would preclude village-style development, its 13 percent increase in cost would make it impracticable, and other practicable alternatives would be less environmentally damaging.13
SCOPE next attacks the manner in which the Corps assessed the cost of the
SCOPE further criticizes three different aspects of the Corps‘s cost methodology. It claims that: (1) the Corps should have considered costs on a per-residential unit or per-commercial floor space basis rather than a per-acre basis; (2) the Corps was required to consider the Project‘s revenues; and (3) the Corps should have excluded land acquisition costs because those costs are sunk costs. We disagree. The Section 404(b) Guidelines do not require the Corps to use any particular metric for analyzing costs; rather, they merely instruct the Corps to assess alternatives in light of their “cost, existing technology, and logistics,”
The Corps‘s evaluation of costs on a per-acre basis was reasonable. As the Corps explained, Newhall Land intended to sell developable land by the acre, rather than developing the land itself and selling units or floor space. Accordingly, the Corps could reasonably conclude that determining Newhall Land‘s costs per acre made more sense than speculating about the type and density of units that might ultimately be built on that land. The Corps also noted that the per-acre cost metric was “more widely used in the industry.”
The Corps also reasonably declined to consider revenues as part of an alternative‘s costs. The regulations direct the Corps to assess practicability based on “cost, existing technology, and logistics.”
Finally, the Corps did not err by including the acquisition costs of the property proposed for the Project site. The Section 404(b) Guidelines do not require a specified treatment of land acquisition costs, so we defer to the Corps‘s judgment unless its decision was arbitrary or capricious. See Jones, 741 F.3d at 996. Here, the Corps reasonably included the acquisition costs as part of its determination of whether an alternative is practicable. Because Newhall Land is investing (or contributing) its valuable site to the Project, the costs of the Project include the value of the property. Accordingly, the exclusion of the value of the property would have led to inaccurate comparisons between the costs for the Newhall Ranch project and the costs for comparable projects, which would require property acquisition. Indeed, the Corps would have arguably “entirely failed to consider an important aspect of the problem” had the Corps excluded land costs in its practicability analysis rather than included it. Nat‘l Ass‘n of Home Builders, 551 U.S. at 658 (quoting Motor Vehicle Mfrs. Ass‘n, 463 U.S. at 43).
We therefore find no merit in SCOPE‘s CWA challenges to the Corps‘s permit issuance.
B
We next turn to SCOPE‘s claim that the Corps violated the ESA. SCOPE argues that the Corps erred in determining that the Project “will have no effect” on Southern California steelhead in the Santa Clara River, and so was required to consult with NMFS on the Project‘s potential impact. See Pac. Rivers Council, 30 F.3d at 1054 n.8;
We disagree. The data and analysis set forth in the Draft EIS/EIR and Final EIS/EIR consistently establish that concentrations of dissolved copper in discharges from the Project would be within the background range already observed in the Santa Clara River and well below the CTR‘s dissolved-copper criterion for the Santa
SCOPE‘s argument to the contrary hinges on its contention that the Corps erred by failing to consider a 2007 Technical Memorandum published by NMFS, An Overview of Sensory Effects on Juvenile Salmonids Exposed to Dissolved Copper (the “NMFS Memorandum“) which Ventura Coastkeeper submitted with its comments on the Final EIS/EIR. According to SCOPE, the NMFS Memorandum establishes that the levels of dissolved copper in discharges from the Project will have “sublethal impacts” on steelhead smolt, which are not adequately accounted for in the CTR criteria. SCOPE argues that the Corps failed to use “the best scientific and commercial data available,”
We reject this argument. As a threshold matter, we may not substitute our scientific judgment for that of the agency. “The determination of what constitutes the ‘best scientific data available’ belongs to the agency‘s ‘special expertise[‘]” and warrants substantial deference. San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 602 (9th Cir. 2014) (emphasis omitted) (quoting Baltimore Gas & Elec. Co. v. Nat. Res. Def. Council, 462 U.S. 87, 103 (1983)). Accordingly, “[t]he best available data requirement ‘merely prohibits [the Corps] from disregarding available scientific evidence that is in some way better than the evidence [it] relies on.‘” Kern Cty. Farm Bureau v. Allen, 450 F.3d 1072, 1080 (9th Cir. 2006) (third alteration in original) (quoting Sw. Ctr. for Biological Diversity v. Babbitt, 215 F.3d 58, 60 (D.C. Cir. 2000)). In this case, the Corps could reasonably conclude that the NMFS Memorandum does not contain the best scientific data available for the Project. The NMFS
Nor was it arbitrary or capricious for the Corps to consider the CTR criteria as “a useful benchmark” to assess the possible water-quality impacts of the Project‘s discharges. The Corps could reasonably consider the CTR criteria as one source of information, given that the EPA promulgated the CTR to establish water-quality criteria “legally applicable in the State of California for inland surface waters, enclosed bays and estuaries for all purposes and programs under the Clean Water Act.” 65 Fed. Reg. at 31,682; see also
SCOPE next argues that because the Corps published its determination that the Project would not affect steelhead in its June 2010 Final EIS/EIR, it could not rely on the Supplemental Analysis, which had been issued almost a year later in May 2011, to support its determination. We reject this argument, because the Corps did not need to rely on the Supplemental Analysis in order to reach its conclusion. The Final EIS/EIR explains the Corps‘s determination that the Project‘s stormwater and wastewater discharges would not affect steelhead because the dissolved-copper concentrations of the combined discharge would be within background ranges and lower than the average concentration during large storm events, as well as substantially below the CTR‘s threshold. This conclusion was not arbitrary or capricious. The Supplemental Analysis merely confirmed the Corps‘s initial conclusion that there would be no effect because it established that the Project‘s
We therefore conclude that the Corps reasonably determined that the Project would have no effect on steelhead, and in the absence of a consultation request from NMFS, see
C
In its NEPA claim, SCOPE argues that the Corps‘s Final EIS/EIR provided an inadequate analysis of the cumulative impacts of the Project‘s dissolved-copper discharges on steelhead in the reach of the Santa Clara River downstream of the Dry Gap. Because SCOPE raises essentially the same arguments that it advanced under its ESA claim, they fail for largely the same reasons.
First, SCOPE again contends that the NMFS Memorandum demonstrates that the Project‘s dissolved-copper discharges may cause sublethal impacts to steelhead, and the Final EIS/EIR failed to consider those impacts. As explained above, the Corps did not err in declining to rely on the NMFS Memorandum. See Or. Nat. Res. Council Fund v. Goodman, 505 F.3d 884, 897 (9th Cir. 2007) (“NEPA does not require the reviewing court to ‘decide whether an [EIS] is based on the best scientific methodology available.‘“) (quoting Or. Envtl. Council v. Kunzman, 817 F.2d 484, 496 (9th Cir. 1987) (alteration in original)). Furthermore, because the Corps reasonably determined that the Project was not likely to affect steelhead populations in the Santa Clara River, it was also not arbitrary or capricious to conclude that the Project would not result in significant cumulative water quality impacts to steelhead. See Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1448 (9th Cir. 1996) (explaining that an agency‘s “no effect” determination under the ESA supported its conclusion that the action would “not individually or cumulatively have a significant effect on the human environment” under NEPA) (quoting
Second, SCOPE challenges the Corps‘s reference to the May 2011 Supplemental Analysis in its response to comments on the Final EIS/EIR. SCOPE argues that the Corps was required to recirculate a revised EIS/EIR containing the Supplemental Analysis or alternatively, include the full document as an appendix. As explained above, the Supplemental Analysis merely confirmed the Corps‘s conclusion, but was not its basis; accordingly, it did not contain “significant new information” that would require the Corps to recirculate the EIS/EIR for further comment. California ex rel. Imperial Cty. Air Pollution Control Dist. v. U.S. Dep‘t of the Interior, 767 F.3d 781, 794 (9th Cir. 2014); see also
Because the Final EIS/EIR provided an adequate analysis of the cumulative impacts of the Project‘s dissolved copper discharges, SCOPE‘s NEPA claim also fails.
VI
We conclude that the Corps complied with its obligations under the CWA, having properly considered practicability as required under the Section 404(b) Guidelines. We further conclude that the Corps complied with the ESA, as its determination that Southern California steelhead would not be affected by the Project and its corresponding decision not to consult with NMFS were not arbitrary and capricious. For similar reasons, we conclude that the Corps reasonably assessed the Project‘s potential impacts to the steelhead and provided sufficient discussion to satisfy its NEPA obligations. Accordingly, the district court properly granted summary judgment in the Corps‘s favor.
AFFIRMED.