In Snoqualmie Valley Preservation Alliance v. U.S. Army Corps of Engineers, (2012) ___ F.3d ___, the Ninth Circuit affirmed the Army Corps of Engineers’ (Corps) verification that certain nationwide permits (NWPs), which authorize activities predetermined to have minimal adverse environmental impacts, applied to the reconstruction of a dam used to generate hydroelectric power in Washington.
Puget Sound Energy, Inc. (PSE), intervener-defendant in the case, planned to rebuild a hydroelectric dam, which was first constructed in 1898, to mitigate upstream flooding problems. After obtaining the requisite Federal Energy Regulatory Commission (FERC) approvals for the project, PSE applied for a Clean Water Act (CWA) Section 404 dredge and fill permit from the Corps. Specifically, PSE sought verification from the Corps that its proposed dam could obtain a 404 permit under NWPs 3, 33, and 39. NWP 3 authorizes discharge for the replacement of a current structure with minor deviations; NWP 33 authorizes temporary discharges for necessary construction activities; and NWP 39 authorizes discharges for the expansion of attendant features necessary for the use of “commercial” and “institutional” buildings. The Corps verified the proposed dam complied with the terms and conditions of NWPs and concluded it would have minimal environmental impacts. Snoqualmie Valley Preservation Alliance (Alliance) filed suit challenging the Corps verification when the district court granted summary judgment in favor of the Corps. The Alliance appealed.
On appeal, the Court first addressed the Alliance’s argument that the proposed dam must undergo individual review instead of being authorized by a NWP. Central to this argument was the contention that the only NWP that may authorize a hydropower project is NWP 17, which pertains to hydropower projects less than 5000 kW at existing reservoirs, for which the instant project did not qualify because it would generate more than 5000 kW. The Court, however, explained NWP 17 is silent concerning projects that will generate more than 5000 kW and accordingly does not preclude the application of other permits to hydropower projects. Thus, contrary to the Alliance’s argument, other NWPs may permit dredge and fill activities associated with PSE’s proposed dam.
Next, the Court rejected the claim that the Corps improperly verified NWPs 3 and 39, summarized above, authorize the project. For this issue, the Court considered and gave deference to the Corps interpretation and application of NWPs 3 and 39. In applying NWP 3, the Corps sought to replace the dam for public safety purposes, specifically to prevent flooding, a rationale which the Court found consistent with language in the NWP 3’s regulatory history. The court similarly concluded NWP 39 properly applied because the proposed dam involved the construction of “attendant features that are necessary for the [its] use and maintenance” and qualifies as a commercial development under NWP 39 which specifically includes industrial facilities in that category. Simply, the plain language in the NWPs was consistent with the Corps verification, so the proposed dam was properly authorized under the NWPs.
Last, the Alliance contended the Corps failed to state a sufficient basis for its verification that the NWPs apply. The court disagreed, citing the Corps’ reason that “PSE could proceed under section 404 of the CWA because the project had minimal individual and cumulative impacts and it complied with all terms and conditions of NWPs 3, 33, and 39[,]” further indicating the conclusions were amply supported by facts in the record. Moreover, the Court went on to explain requiring more from the Corps would be contrary to the NWP scheme, which seeks to streamline the permitting process for qualifying projects, as requiring more would be tantamount to the type of individualized review required for projects that do not qualify for NWPs.
NWPs are mechanisms that streamline section 404 permitting. When analyzing NWPs, courts will consider their plain language and not require extensive analysis pertaining to their application or environmental effects.
Written By: Tina Thomas, Chris Butcher and Grant Taylor (law clerk)
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