Case Law Updates on the Environment (CLUE)
Case Law Update Details
Northwest Bypass Group v. U.S. Army Corps of Engineers
U.S. District Court - New Hampshire
Northwest Bypass Project
The Northwest Bypass Project involves the reconstruction of a portion of a street and construction of a new street in the City of Concord, New Hampshire. The project as initially planned was divided into three phases. In the early 1990s, the City filed for governmental approvals for all three phases of the project. In April 1993, the City received the necessary approvals from the New Hampshire Department of Environmental Services (NHDES) for the entire project. The City also received approval for a Clean Water Act Section 404 permit from the U.S. Army Corps of Engineers (Corps) for Phase I of the project. In 1995, Phase I was completed. In November 2000, the City filed an application with NHDES for a wetland fill permit and a water quality certificate for Phase II of the project. The City also sought a Section 404 permit from the Corps. As a result of state court proceedings challenging Phase II, the project was held in abeyance from 2000 to 2006. Ultimately, the opponents of Phase II were unsuccessful in the state court proceeding, and in January 2006, the plans for Phase II were again underway with the Corps’ completion of an EA. The Corps determined that the project would not significantly affect the human environment, thereby determining that an EIS was not required.
In July 2006, the plaintiffs filed suit against the Corps, the New England District Commander of the Corps, and the City of Concord. The plaintiffs alleged that the Corps violated various federal laws in issuing the Section 404 permit. The Concord Hospital and St. Paul’s School intervened in the action. The plaintiffs moved for a temporary restraining order and a preliminary injunction. The U.S. District Court for the District of New Hampshire denied the plaintiffs’ motions. Subsequently, the parties filed cross-motions for summary judgment. The court granted the defendants’ motion for summary judgment. No appeal was taken.
Section 404 of Clean Water Act
Practicable Alternatives. The District Court held that the Corps satisfied its obligation to consider all practicable alternatives, as required by the Clean Water Act. The court reasoned that the record supported the Corps’ determination that the alternatives reviewed were not practicable. The court further stated that the Corps’ failure to review the plaintiffs’ proposed alternative was not arbitrary and capricious because the plaintiffs’ proposed alternative did not meet the description of the purpose of the project, and therefore did not create an alternative to the proposed action.
Public Interest Review. The District Court held that the Corps’ public interest review did not violate the requirements under Section 404(b) of the Clean Water Act. The court reasoned that under the public interest review, the Corps is required to conduct “a general balancing of a number of economic and environmental factors,” none of which is dispositive. The court further reasoned that the Corps’ “ultimate determinations are entitled to substantial deference.” Specifically, the court responded to the plaintiffs’ arguments that the Corps did not undertake an appropriate public interest review of traffic impacts, recreational impacts, and educational resource impacts:
Deference to State and Local Decisions
- Traffic Impacts. The court held that the Corps’ public interest review of traffic impacts was not arbitrary and capricious. The court reasoned that although the Corps did not explicitly consider the combined impacts of Phase II and the closing of certain roads, the Corps properly extrapolated these impacts from a series of reports. Similarly, the court reasoned that the Corps appropriately relied on a summary of a series of traffic studies to determine the impact on traffic flow.
- Recreational Impacts. The court held that the Corps properly weighed the impacts of the project on recreation, evaluated relevant factors, and reached a reasoned decision.
- Educational Impacts. The court held that the Corps appropriately considered the educational impacts of the project.
. The District Court held that the Corps appropriately deferred to state and local governments regarding land use and zoning. The court reasoned that pursuant to Section 404, the Corps is required to defer to state and local governments on these issues. Further, the Corps did not substitute the state’s decision-making for its own, but rather incorporated state and local land use and zoning considerations into its Section 404 permitting decision. The court stated that although the Corps deferred to state and local authorities on certain matters, it made its own determinations regarding the federal requirements for a Section 404 permit. Thus, the court held, the Corps did not fail to meet its duty to independently evaluate the Section 404 permit application.
. The District Court held that the Corps was not arbitrary and capricious in its determination that the proposed mitigation package for the project was adequate. The court reasoned that the Corps’ guidance materials, including Regulatory Guidance Letter (RGL) number 02-2, which requires compensatory mitigation to replace resources affected by unauthorized activities, are interpretive guidelines that are not binding upon the Corps. In holding that RGL 02-2 is not binding, the court reasoned that the RGL does not impose any rights and obligations and does not modify existing mitigation policies, regulations, or guidance. Instead, materials such as RGL 02-2 provide “guidance as to how the Corps should consider various mitigation practices.” Regardless, the court held that the Corps followed RGL 02-2 and was not unreasonable in its evaluation of the project’s mitigation measures.
. The District Court held that the Section 404 permit did not provide ambiguous effluent limitations. The court reasoned that because the federal standard is more stringent than the state requirement, there is no ambiguity as to what standard the permittee must follow. Rather, it is clear that the permittee must follow the federal standard. The court further stated that the description of the effluent acreage limitation does not affect the requirement that the permittee must meet the actual standard set forth in the water quality certification. Thus, the description of the effluent acreage limitation does not render the permit effluent limitations ambiguous.
. The District Court held that the Corps was not arbitrary and capricious in determining that Phase III of the project is not a cumulative action, a connected action, or a similar action to the Phase II proposal such that the two phases could not be segmented. The court reasoned that Phases II and III of the project are not “connected actions” because Phase II would not “automatically trigger” Phase II. Further, the plaintiffs could not show that Phase III “cannot or will not proceed” unless Phase II is undertaken “previously or simultaneously.” The court further stated that Phase II has a “clear independent utility,” and therefore, the two phases are not connected actions. The court also reasoned that Phases II and III are not “cumulative actions” because Phase III is not a “proposed action.” The NEPA regulations provide that cumulative actions are those that “when viewed with other proposed actions have cumulatively significant impacts.” The court reasoned that because Phase III is not a “proposed action,” Phases II and III are not cumulative actions.
. The District Court held that the Corps was not arbitrary and capricious in choosing not include Phase III as a cumulative impact. The court reasoned that Phase III is too speculative to be considered a “reasonably foreseeable future action” because the City had no plans to move forward with Phase III. The court also reasoned that because Phase II stands on its own merit in supporting its purposes, the relevant agencies will not be “so firmly committed” to Phase III that they will not be able to consider the environmental consequences of that project if it is proposed.
. The District Court held that the Corps adequately considered the secondary impacts of Phase II. The court adopted its reasoning in its earlier ruling, where it stated that the secondary impacts of Phase II were speculative and/or indefinite and that these impacts were adequately addressed in the City’s responses to public comments contained in the administrative record and reviewed by the Corps.
. The District Court held that the Corps was not arbitrary and capricious in finding that the project has no significant environmental impacts. The court reasoned that in preparing the EA, the Corps took the mandatory hard look at the relevant environmental concerns, including the impact on wetlands, traffic concerns, and historic properties, and determined that no significant environmental impacts would result from the project.
. The District Court held that the Corps properly considered the degree to which the effects of the project on the quality of human life are “highly controversial.” The court stated that the term “controversial” is not synonymous with “opposition.” Opposition to the project does not mean that the project is highly controversial such that an EIS must be prepared. Rather, “a federal action is controversial if a substantial dispute exists as to its size, nature, or effect.” The court held that the plaintiffs did not show that any such dispute existed, and therefore, the project was not highly controversial.
Section 106 of NHPA
Consideration of Impacts to Historic Properties
. The District Court held that the Corps followed the procedure for consideration of impacts to historic properties as set forth in Section 106 of the National Historic Preservation Act (NHPA) and in NHPA’s implementing regulations. The court stated that “the Corps fulfilled their ‘stop, look, and listen’ responsibilities” in considering the effects of the project on historic properties, even though the Corps consulted with the State Historic Preservation Officer (SHPO) and other interested parties years prior to the implementation of Phase II of the project. The court further stated that the Corps complied with the “listen” requirements of NHPA by participating in public hearings and reviewing the administrative record.
Consideration of Alternatives
. The District Court held that the Corps properly considered alternatives under the Clean Water Act consistent with the National Historic Preservation Act (NHPA) Section 106. The court reasoned that the Corps consulted with the State Historic Preservation Officer (SHPO) and developed alternatives to minimize and mitigate the effects to historic properties. Thus, the court adopted its earlier conclusion that the Corps properly considered under the Clean Water Act consistent with NHPA.
Documentation of Historic Properties
. The District Court held that the Corps properly documented the historic properties impacted by the project in meeting notes, public comments, and the Memorandum of Agreement between the SHPO and the Corps’ district engineer. The court also held that the NHPA regulations do not require an EA or EIS. In compliance with NEPA and its implementing regulations, the Corps referenced the documentation of historic properties in the EA. The court held that even if the Corps’ had failed to document historic properties within the EA, this would not have constituted a violation of the NHPA regulations, which have no bearing upon the contents of an EA.