Home » Case Summaries » 2004 » National Wildlife Federation v. United States Army Corps of Engineers

 
 

National Wildlife Federation v. United States Army Corps of Engineers

 

The National Wildlife Federation and other environmental organizations (collectively NWF) sued the Army Corps of Engineers (Corps),alleging violations of the Administrative Procedure Act (APA).[1] NWF argued that the Corps’ Record of Consultation and Statement of Decision (ROD) regarding the operation of four dams on the lower Snake River failed to address its obligations to comply with Washington State water quality standards (WQSs) for temperature as required by the Clean Water Act (CWA).[2] The Ninth Circuit affirmed the district court and held that the Corps had not acted arbitrarily and capriciously.

Washington designated the lower Snake River as suitable for trout and salmon spawning, rearing, and migration. To ensure the suitability of the lower Snake River for those purposes, Washington set a temperature standard that prohibits human activities from causing temperatures to exceed twenty degrees centigrade unless the background temperature already exceeds twenty degrees. In that case, human activities are permitted to increase the temperature by no more than three tenths of one degree centigrade. Beginning in 1994, the Washington Department of Fish and Wildlife (WDFW) expressed concern that the dams on the lower Snake River were causing frequent violations of the state temperature standard. The National Marine Fisheries Service (NMFS) issued two Biological Opinions (BiOps), in 1995 and 1998. Both BiOps concluded that modifications of the Columbia River Power System, including the four dams at issue in this lawsuit, were needed to ensure the survival of endangered salmon stocks in the Snake River. The Corps adopted the recommendations from both BiOps in its 1995 and 1998 RODs.

Concerned that the RODs did not sufficiently deal with the issue of complying with Washington’s water temperature standards, NWF filed suit in 1999, alleging the RODs were arbitrary and capricious. The district court held that the Corps had failed to adequately address its obligation to comply with the CWA and remanded to the Corps for further consideration. The district court also allowed the Nez Perce Tribe to intervene on behalf of NWF, and the Potlatch Corporation and several other industry groups to intervene on behalf of the Corps. In May 2001, the Corps released another ROD, which adopted the recommendations from a 2000 NMFS BiOp. This ROD stated that the Corps had no reliable information upon which to conclude that structural modifications would significantly decrease exceedances of the state WQSs for temperature. The Corps therefore concluded that its operation of the dams had no significant impact on temperatures. NWF filed an amended complaint challenging the 2001 ROD. The district court held that the ROD properly evaluated the obligation of the Corps to comply with state WQSs and that its measures to comply with the Endangered Species Act (ESA)[3] were consistent with its obligations to mitigate temperature exceedances under the CWA. Thus, the district court granted summary judgment for the Corps, and NWF appealed.

The Ninth Circuit began by noting that a district court’s grant of summary judgment is reviewed de novo. It found the district court had erred by relying heavily on the Corps’s compliance with the ESA measures recommended in the 2000 NMFS BiOp. The Ninth Circuit found that compliance with those measures did not ensure that the Corps had complied with the CWA. Therefore, the court addressed NWF’s arguments in turn, beginning with the issue of whether the Corps’s ROD was arbitrary and capricious in determining that there was nothing more the Corps could do to reduce water temperatures.

NWF presented two main arguments. First, NWF argued the ROD was arbitrary and capricious when it concluded that there were no additional actions the Corps could take to reduce water temperatures in the lower Snake River. Second, NWF argued that the ROD was arbitrary and capricious in concluding the Corps’s operation of the dams did not cause water temperatures to exceed Washington State WQSs.

NWF first asserted that the 1995 Columbia River System Operation Review final environmental impact statement (1995 EIS) found that a “natural river operation” method would have caused fewer temperature exceedances than current operational practices. Thus, according to NWF, the Corps acted arbitrarily and capriciously by failing to adopt this method in the 2001 ROD. The Ninth Circuit rejected NWF’s assertions on several grounds. First, the court pointed out that the 1995 EIS recommended a combination of management alternatives instead of the strictly natural river operation method. The court noted that the EIS recognized that the natural river operation method would increase sediment discharge into the lower Snake River, impact other water users, and disturb fish populations existing in the reservoirs. Second, the court noted that the 1995 EIS raised concerns about compliance with existing permits issued under the national pollutant discharge elimination system (NPDES) permitting program if the natural river operation method were adopted. The 1995 EIS also stated that the natural river operation method would not completely cure the problem of temperature exceedances in the lower Snake River.

Finally, the court noted that the major structural modifications required to implement the natural river operation method may not be viable given the original Congressional purpose of constructing and operating the dams for power generation. Because the 1995 EIS itself did not recommend full implementation of the natural river operation method, the Ninth Circuit concluded that the Corps’s rejection of that method was not arbitrary or capricious. The Ninth Circuit buttressed this conclusion by pointing out that agency decisions that are primarily scientific or technical, like the operation of the Snake River dams, must be reviewed in a “highly deferential” manner.[4]

NWF next asserted that a March 1999 e-mail sent to a CWA compliance workgroup, consisting of staff from several federal agencies indicated the Corps could have taken additional steps to decrease water temperatures in the lower Snake River. The Ninth Circuit noted that the email was an informal, draft communication regarding several potential operational changes to reduce temperature at dams within the Federal Columbia River Power System, which itself highlighted that full compliance with temperature standards was unlikely. The Ninth Circuit held that because this was an informal document never adopted by the Corps, it did not support NWF’s assertion that the 2001 ROD was arbitrary and capricious for stating that there were no further steps the Corps could take to reduce water temperatures in the lower Snake River.

NWF’s second major argument was that the 2001 ROD was arbitrary and capricious because of its conclusion that the Corps’s operation of the lower Snake River dams did not cause temperature exceedances. The Ninth Circuit, examining the administrative record, determined that the most comprehensive study regarding water temperatures and dam operations at the time the Corps issued its 2001 ROD was the 1999 “Lower Snake River Juvenile Salmon Migration Feasibility Study” EIS (1999 EIS). The 1999 EIS used a model created by the Environmental Protection Agency (EPA) as well as two models created by private contractors to examine the effects of dam operation on temperatures in the lower Snake River. Two of the three models indicated that dam breaching would reduce temperature exceedances.

NWF argued that these studies, particularly the EPA study, conclusively established that the Corps’s operation of the dams caused temperature exceedances. The Ninth Circuit rejected NWF’s argument, noting that the EPA study compared the temperature with the dams in place to the temperature if the dams were breached and concluded that the study did not address the issue of the Corps’s operation of the dams. Indeed, the Ninth Circuit held that the EPA study supported the Corps’s argument that the existence of the dams caused the temperature exceedances, not the operation of the dams.

The Ninth Circuit emphasized that in reviewing this complex, scientific analysis, the court must defer to the opinions of agency experts so long as they are reasonable. In holding the identification of the cause of the excessive temperatures was “a problem requiring complex scientific analysis,”[5] the court accorded substantial deference to the Corps. Thus, the court concluded that the Corps’s determination was not arbitrary or capricious.

Finally, NWF argued that the Corps’s attempt to distinguish between its operation of the dams and the existence of the dams was arbitrary and capricious. NWF argued that because there was no legal distinction between exceedances caused by the operation of the dams and exceedances caused by the existence of the dams, the Corps was violating CWA requirements. The Ninth Circuit rejected this argument on the grounds that the CWA must be construed in a way that does not conflict with the Rivers and Harbors Act,[6] which authorizes the building and operation of federal dams. The Ninth Circuit cited Radzanower v. Touche Ross & Company[7] for the maxim that “when two statutes are capable of coexistence, it is the duty of the court . . . to regard each as effective.”[8] The Ninth Circuit held that both statutes can only coexist if it is the discretionary operation and not the mere existence of the dams that mandates compliance with state WQSs under the CWA. Thus, the Ninth Circuit refused, in essence, to interpret the CWA as requiring the removal of dams constructed sixty years earlier pursuant to the Rivers and Harbors Act.

By determining that the existence of the dams on the lower Snake River, not the Corps’s operations of those dams, caused exceedances of Washington’s WQSs, the Ninth Circuit concluded that the 2001 ROD was not arbitrary and capricious. In addition, the Ninth Circuit concluded that the 2001 ROD was not arbitrary or capricious or contrary to law when it determined that there were no additional actions the Corps could take to reduce water temperatures in the lower Snake River. Thus, the Ninth Circuit affirmed the district court’s judgment.

In dissent, Judge McKeown argued that the majority sidestepped the central issue by failing to require the Corps to produce evidence that no viable operational alternatives would avoid temperature exceedances in the lower Snake River. He noted that almost all of the data in the administrative record presupposed either removing the dams completely or continuing to operate the dams as they were currently operated. Judge McKeown argued that the Corps completely bypassed the issue of whether or not it could change its operations to decrease violations of state WQSs. Furthermore, he pointed out that the evidence the Corps relied on for its decisions focused on the ESA, not on CWA compliance. Ultimately, Judge McKeown stated that by allowing the Corps to rest on insufficient evidence, the majority subverted the APA by failing to require a rational connection between the agency decision and the administrative record.

In essence, Judge McKeown thought the majority’s approach placed the burden on NWF to prove that the Corps could reduce temperature exceedances despite the fact that the APA requires agencies to consider the evidence and proceed rationally. To satisfy the APA, he would have required the Corps to show that its operation of the dams did not cause temperature exceedances. According to Judge McKeown, there was no evidence to support that conclusion, and, therefore, the 2001 ROD did not satisfy the requirements of the APA.

Finally, Judge McKeown emphasized that the studies relied on by the Corps related primarily to its ESA obligations and failed to address independent obligations under the CWA. He argued that insufficient discussion of CWA obligations and possible operational alternatives to reduce temperature exceedances rendered the Corps’ decision arbitrary and capricious.


[1] Administrative Procedure Act, 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2000).

[2] Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1387 (2000).

[3] Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544 (2000).

[4] Nat’l Wildlife Fed’n v. United States Army Corps of Eng’rs , 384 F.3d 1163, 1174 (9th Cir. 2004) (citing Baltimore Gas & Elec. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 103 (1983)).

[5] Id. at 1177.

[6] River and Harbor Act of 1945, 33 U.S.C. §§ 603(a), 544(b) (2000).

[7] 426 U.S. 148, 155 (1976).

[8] Id. at 155.

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