Home » Case Summaries » 2002 » Tillamook County v. United States Army Corps of Engineers

 
 

Tillamook County v. United States Army Corps of Engineers

 

Tillamook County (the County) sought to enjoin the Army Corps of Engineers (the Corps) from issuing a permit under section 404 of the Clean Water Act (CWA)[1] to the City of McMinnville (the City) to enlarge its municipal water supply reservoir along the Nestucca River. The County argued that the Corps violated the National Environmental Policy Act (NEPA)[2] as well as the CWA. The district court denied the County’s request for a preliminary injunction; and the Ninth Circuit affirmed, holding that the Corps’ environmental assessment (EA) was adequate.

The City sought to expand the reservoir to avert water shortages expected to occur between 2002 and 2020. The expansion included the placement of dredge and fill material into navigable waters, requiring a section 404 permit from the Corps.[3] Because issuance of a section 404 permit is a major federal action, NEPA required the Corps to prepare an environmental analysis. The Corps prepared an EA, submitted it for public comment, and determined that the project would not have a significant impact on the environment.

The court determined that the applicable standard of review for the denial of a preliminary injunction is whether the district court abused its discretion. The court maintained that the test for preliminary injunctive relief is a “continuum,”[4] rather than two separate alternatives. A party is entitled to relief if the party demonstrates: 1) a probability of success on the merits and the potential for irreparable harm if the injunction is denied, or that 2) “serious questions are raised and the balance of hardships tips sharply in [the movant’s] favor.”[5] The court determined that the County was not entitled to a preliminary injunction because they did not demonstrate a probability of success on the merits.

The County first argued that an environmental impact statement (EIS) was required for the project under NEPA because the project would have significant impacts on the environment. Based on the arbitrary and capricious standard of review for agency decisions, the court determined that the Corps took “the necessary hard look at the environmental impact of the proposed expansion.”[6] The court pointed out that the Council on Environmental Quality (CEQ) regulations require the preparation of an EA that “[b]riefly provide[s] sufficient evidence and analysis” for whether to prepare an EIS.[7] The court specifically noted that it would not “interject

itself” in the area of executive discretion when considering the agency’s actions.[8]

The County next argued that even if an EIS was not required, the EA was inadequate because it failed to adequately describe mitigation measures relating to sediment, erosion control, and dam safety, and it did not include a reasonable range of alternatives. The court dismissed both of these arguments, first reasoning that the Corps was not required to develop a complete and precise mitigation plan. The court determined that the description of mitigation measures in the section 404 permit–which required the permittee to comply with dam safety–was adequate.

The court further concluded that CEQ regulations only required the Corps to include a “brief” discussion of “practicable alternatives” in the EA.[9] Under the “rule of reason”[10] standard of review for an agency’s range of alternatives, the court determined that the five alternatives provided by the Corps, including a no action alternative, were sufficient. In short, the court concluded that the County could not demonstrate a likelihood of success on the merits; therefore, the County was not entitled to a preliminary injunction because the Corps took the necessary hard look at the environmental impacts of the proposed expansion as required by NEPA.


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

[2] National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370e (2000).

[3] Id. § 1344.

[4] Tillamook County v. United States Army Corps of Eng’rs, 288 F.3d 1140, 1143 (2002).

[5] L.A. Mem’l Coliseum Comm’n v. NFL, 634 F.2d 1197, 1201 (9th Cir. 1980).

[6] Tillamook County, 288 F.3d at 1145.

[7] 40 C.F.R. § 1508.9(a)(1) (2000).

[8] Tillamook County, 288 F.3d at 1144 (quoting Stryker’s Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227 (1980)).

[9] Tillamook County, 288 F.3d at 1144 (quoting 40 C.F.R. § 1508.9(b) (2002)).

[10] Id. (quoting Northwest Envtl. Def. Ctr. v. Bonneville Power Admin., 117 F.3d 1520, 1538 (9th Cir. 1997)).

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