By Cori M. Badgley
On January 3, 2008, the Ninth Circuit Court of Appeals in Bering Strait Citizens for Responsible Resource Development v. United States Army Corps of Engineers, No. 07-35506 addressed alleged violations of the Clean Water Act (“CWA”) and the National Environmental Policy Act (“NEPA”) by the United States Army Corps of Engineers (“USACE”). Specifically, the plaintiffs alleged that USACE unlawfully granted a Section 404 permit to the Alaska Gold Company (“AGC”) allowing AGC to fill or dredge wetlands and that there were legal deficiencies in the accompanying environmental assessment (“EA”).
AGC proposed to operate two open-pit gold mines outside of Nome, Alaska. The Rock Creek Mine Project would result in approximately 15,592,411 cubic yards of fill being placed in wetlands totaling 346.5 acres. The two sites for the mines consisted of areas that had been previously mined early in the Alaskan gold rush. Due to the lack of regulations at that time, there was extensive environmental damage. USACE placed various mitigation measures on the Rock Creek Mine Project to mitigate environmental damage from this project as well as damage caused by the earlier mining activities. For example, a creek that had been diverted due to earlier mining activities would be restored to its natural flow. Following preparation of an EA and a “Finding of No Significant Impact,” USACE granted the permit.
Plaintiffs, Bering Strait Citizens for Responsible Resource Development (“BSC”), brought suit claiming that the permit was invalid because it was issued in violation of the CWA and NEPA. The District Court of Alaska held that USACE had acted according to the law and the permit was valid. BSC appealed. The Ninth Circuit Court of Appeals agreed with the district court’s analysis and affirmed the judgment.
Plaintiffs first claimed that the Section 404 permit was issued in violation of the CWA. Under Section 404, no one may discharge dredged or fill material into the navigable waters of the United States unless a permit is issued by USACE. BSC alleged three deficiencies under the CWA: 1) USACE failed to adequately consider practicable alternatives; 2) USACE “did not properly consider whether the Rock Creek Mining Project would ‘cause or contribute to significant degradation of the waters of the United States’;” and 3) USACE “did not require the appropriate mitigation measures.”
Under the regulations promulgated by USACE and the Environmental Protection Agency (“EPA”), a permit cannot be issued “if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic system.” (40 C.F.R. § 230.10, subdivision (a).) A practicable alternative is one that is “available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes.” The court found that USACE “extensively and properly considered alternatives” and reasonably concluded that the current design offered the best design alternative. The court limited its review to whether USACE reviewed and evaluated all of the alternatives and whether its conclusion was reasonable. The court did not engage in an analysis of the alternatives, but rather relied on the expertise of USACE.
The court narrowed the second CWA issue to “whether [USACE’s] decision to issue the permit was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Again, the court refused to enter into an analysis of the factual evidence to reach what it believed to be the proper conclusion. The court focused on the extensive discussion by USACE of the impacts from the project. The court found that USACE had adequately considered the impacts, and its decision was not arbitrary and capricious.
Finally, the plaintiffs argued that the mitigation measures were not sufficient because some of them were not fully developed. Specifically, there was one mitigation measure, suggested by the United States Fish and Wildlife Service, stating that further mitigation measures would be implemented as the project advanced. Although the court hinted that this alone would not be adequate mitigation, there were many other mitigation measures that were fully developed and clearly able to be implemented. Additionally, the mitigation measure at issue was not suggested by USACE but by another agency. The court held that the mitigation measures satisfied the requirements under the CWA.
BSC also alleged that USACE had violated NEPA. Plaintiffs first argued that by failing to circulate the EA, USACE had violated the notice and comment requirements of NEPA. The court had never faced the question of whether an EA must be circulated. The applicable statutes and regulations do not mention circulation. They only state that agencies must “make diligent efforts to involve the public in preparing and implementing their NEPA procedures.” (40 C.F.R. § 1506.6.)
In following the general consensus of other courts of appeals, the Ninth Circuit held that “the circulation of a draft EA is not required in every case.” In order to determine what level of notification is required, the court stated the following rule:
An agency, when preparing an EA, must provide the public with sufficient environmental information, considered in the totality of the circumstances, to permit members of the public to weigh in with their views and thus inform the agency decision-making process.
The court went on to find that under this rule, USACE satisfied NEPA’s requirements by notifying the public and involving them in the process. The court noted that many community members as well as the City of Nome participated in the process, and the majority of the members of the public were in favor of the project because it would provide much-needed employment.
In its discussion of the last two arguments under NEPA on environmental analysis and the failure to prepare an EIS, the court reiterated many of its comments concerning the CWA claims. The court found that NEPA only requires that a sufficient discussion of impacts takes place, and unlike the CWA, the alternatives must only be discussed, instead of having to pick the “best design.” The court held that USACE’s analysis satisfied NEPA, and its finding that there would be no significant environmental impacts was not arbitrary and capricious.
The court held that the permit issued by USACE was valid and the mining project could continue. This opinion serves to illustrate the deference given to agencies in their areas of expertise. Although the court will look at whether or not the agency considered the proper factors in coming to a reasonable conclusion, the court will not interfere with the actual decision-making process used by the agency. This opinion also resolved an issue of first impression concerning the circulation of EAs.
Cori Badgley is an associate with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.