UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ALLIANCE TO SAVE THE MATTAPONI, et al.,

Plaintiffs,

v. Civil Action 06-01268 (HHK)

UNITED STATES ARMY CORPS OF ENGINEERS, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiffs Alliance to Save the Mattaponi (“Alliance”), Chesapeake Bay Foundation, Inc.,

Sierra Club, Virginia Chapter, and intervenor-plaintiffs Carl T. Lone Eagle Custalow, chief of the

Mattaponi Indian Tribe (“Tribe”), and the Tribe (collectively, “plaintiffs”) bring this action

against the United States Army Corps of Engineers (“Corps”), the United States Environmental

Protection Agency (“EPA”), and against Peter Green, Secretary of the Army and Robert L. Van

Antwerp, Chief of Engineers and Commanding General of the Corps, in their official capacities

(collectively, “defendants”). The City of Newport News, Virginia (“Newport News”) also

intervened as a defendant. Plaintiffs allege that the Corps acted arbitrarily and capriciously when

it approved a permit sought by Newport News to build a reservoir on the Cohoke Creek and that

the EPA acted arbitrarily and capriciously when it failed to veto the permit issued by the Corps.

All of the parties have moved for summary judgment [##71, 72, 76, 78]. Upon consideration of

the motions, the oppositions thereto, and the summary-judgment record of this case, the court

concludes that plaintiffs’ motions must be granted in part and denied in part and defendants’

motions must be granted in part and denied in part. I. BACKGROUND

A. Statutory and Regulatory Background

1. The Clean Water Act

The goal of the Clean Water Act is to “restore and maintain the chemical, physical, and

biological integrity of the Nation’s waters.”

(a). To achieve this goal, the

Clean Water Act generally prohibits the discharge of dredged or fill materials into waters of the

United States unless authorized by a permit.

§ 1311(a). Section 404 of the Clean Water Act

authorizes the Secretary of the Army to issue permits for the discharge of dredged or fill material

into waters of the United States when certain conditions are met. Id. § 1344. When it reviews a

permit application, the Corps must follow binding guidelines established by the Corps and the

EPA (the “Guidelines” or the “404(b) Guidelines”), which are codified at 40 C.F.R. Part 230.

See

(b).

The Guidelines prohibit the permitting of projects in two instances relevant to this case.

First, a permit may not be issued where there “is a practicable alternative to the proposed

discharge which would have less adverse impact on the aquatic ecosystem, so long as the

alternative does not have other significant adverse environmental consequences.”

(a). To be “practicable,” an alternative must be “available and capable of being done after

taking into consideration cost, existing technology, and logistics in light of overall project

purposes.”

§ 230.10(a)(2). Second, a permit may not be issued where it “will cause or

contribute to significant degradation of the waters of the United States,” which includes

significantly adverse effects on the “life stages of aquatic life and other wildlife dependent on

aquatic ecosystems” and “loss of fish and wildlife habitat.” Id. § 230.10(c).

2 Section 404 of the Clean Water Act also authorizes the EPA to “prohibit the specification

(including the withdrawal of specification) of any defined area as a disposal site” whenever the

EPA determines “that the discharge of such materials into such area will have an unacceptable

adverse effect on [the aquatic environment].”

(c).

2. Public Interest Review

The Corps has promulgated a regulation which prohibits the issuance of a section 404

permit if “the district engineer determines that it would be contrary to the public interest.”

(a). This regulation requires the district engineer to weigh the benefits that

reasonably may be expected to accrue from the proposal against its reasonably foreseeable

detriments, considering all relevant factors.

. The National Environmental Policy Act

The purpose of the National Environmental Policy Act (“NEPA”) is to “encourage

productive and enjoyable harmony between man and his environment.”

. To

that end, NEPA requires federal agencies to prepare a detailed environmental impact statement

(“EIS”) for “major Federal actions significantly affecting the quality of the human environment”

to inform the agency’s decision whether to go forward with the action.

§ 4332(C).

Regulations promulgated by the Council on Environmental Quality state that an agency must

supplement this EIS when “[t]he agency makes substantial changes in the proposed action that

are relevant to environmental concerns,” or “[t]here are significant new circumstances or

information relevant to environmental concerns and bearing on the proposed action or its

impacts.”

(c).

3 B. Factual Background

This action challenges the issuance of a permit to Newport News by the Corps under

section 404 of the Clean Water Act to build a 1,526-acre reservoir on the Cohoke Creek in King

William County, Virginia (the “Reservoir Project” or the “Project”). The permit was issued on

November 15, 2005, but the Project has a long history.

In 1984, the Norfolk District of the Corps (the “Norfolk District”) published a Water

Supply Study concluding a nine-year study process and projecting that the Lower Peninsula of

Virginia would need 40 million gallons per day (mgd) of additional water by 2030. Responding

to that prediction, Newport News organized the Regional Raw Water Study Group (“RRWSG”)

in 1987 to develop a plan to meet the future need. In 1993, Newport News, on behalf of the

RRWSG, submitted to the Corps and the Virginia Department of Environmental Quality an

application for permits for construction of the Reservoir Project. The proposed Project consisted

of a reservoir, which would be created by a dam across the Cohoke Creek thereby flooding

nearby wetlands and streams. To fill the reservoir, the Project would pump water from the

nearby Mattaponi River into the reservoir. The goal was to “provide a dependable, long-term

water supply for the Lower Virginia Peninsula.” AR 023151.

As required by NEPA, the Norfolk District published a draft EIS for the Reservoir Project

in 1994, a supplement to the draft in 1995, and a final EIS in 1997. During this time, Newport

News twice revised its application, moving the dam upstream and thereby reducing its wetland

and stream effects. Responding to comments that the water need projection was inflated, the

Norfolk District also requested the Corps’ Institute for Water Resources (“IWR”) to provide an

independent technical review of Newport News’ projected water needs. The IWR concluded that

the forecasted water need was inflated by about 16 mgd, making the actual need closer to 24 mgd

by 2040.

4 In 2001, in accordance with the Corps’ procedures, the Norfolk District issued its final

recommended record of decision. It recommended that the Corps deny the permit, finding that

the Project would cause or contribute to significant degradation of the waters of the United

States, that practicable, less damaging alternatives were available, and that the Project was not in

the public interest. The EPA and the Fish and Wildlife Service (“FWS”) agreed with the Norfolk

District’s recommended decision. The Governor of Virginia, however, objected to the proposed

denial of the permit and therefore, in accordance with the Corps’ procedures, the application was

referred to the North Atlantic Division of the Corps (“North Atlantic Division”).

In 2002, the North Atlantic Division issued an initial decision finding that there was a

need for a dependable source of water and that the Reservoir Project was a practicable alternative

to meet that need. It therefore resumed processing the permit application, which had been on

hold following the Norfolk District’s recommended decision, to address outstanding issues

including how to mitigate the environmental effects on wetlands. In June 2004, Newport News

submitted a wetlands mitigation plan (“Mitigation Plan”), which proposed to restore or create

806 acres of wetlands in eleven locations, and to create, enhance or preserve approximately 36.5

miles of streams.

Meanwhile, the Reservoir Project also required permits from two state agencies in

Virginia, which were concerned about the effect of the Project on the American shad. In 1997,

the Virginia State Water Control Board issued a Virginia Water Protection permit setting a

monthly minimum in-stream flow for the Mattaponi River, which prohibits pumping when water

flows are below the minimum in-stream flow unless Newport News implements emergency

water conservation measures. In 2003, the Virginia Marine Resources Commission (“VMRC”)

5 denied a permit for the construction and placement of the intake structures and pipelines in the

Mattaponi River because it would adversely effect the early life history stages of the shad. In

2004, however, VMRC reversed its decision and issued the permit with restrictions. To protect

shad, the VMRC permit prohibits water withdrawals from the Mattaponi River for several

months during shad spawning season (which is defined as extending from March 1 to July 31 of

each year until Newport News can prove that a shorter pumping hiatus would equally protect the

shad) except when a water emergency is declared by the President or the Governor of Virginia.

The Corps issued its final record of decision (“ROD”), at issue in this case, on July 29,

2005, and issued the permit on November 15, 2005. The Corps concluded that the Project was in

the public interest and would not cause or contribute to significant degradation of the waters of

the United States. Stating that the forecasted water need by 2040 was now 15.9 mgd and relying

on the 1997 final EIS, the Corps concluded that the Reservoir Project, which would provide 19

mgd, was the least damaging practicable alternative. Although it has the authority to veto the

Corps’ issuance of a permit, the EPA did not.

The permitted Reservoir Project consists of the reservoir, which would be created by a

dam across the Cohoke Creek, a water supply intake structure and station that could pump up to

75 mgd of fresh water from the nearby Mattaponi River, and a pumping station and pipeline to

transfer water from the reservoir to Newport News’ existing water works. The Reservoir Project

would flood over 1,500 acres of land and require the excavation, fill, destruction and flooding of

approximately 403 acres of freshwater wetlands and the elimination of 21 miles of free-flowing

streams. Its cost is estimated to be over $200 million. Construction of the Reservoir Project

cannot begin until 2010 at the earliest and the Project will not become operational until 2013 or

6 later. In the meantime, Newport News is conducting the necessary environmental and

archeological studies to satisfy the conditions of the permits issued by the Corps and Virginia and

is acquiring land.

The EPA has stated that “[t]he proposed [Project], if approved, would represent the

largest single permitted wetland loss in the Mid-Atlantic region in the history of the Clean Water

Act Section 404 program . . . .” AR 023772. The Tribe’s 150-acre reservation is on the

Mattaponi River, approximately three miles downstream of the proposed intake structure, and the

Tribe has depended for centuries on the Mattaponi River and its shad population. Shad are an

important source of food and income, as well as a resource of cultural and religious significance,

to the Tribe.

II. ANALYSIS

Plaintiffs challenge the Corps’ issuance of the permit on the grounds that the

determinations of the Corps that the Project was the least damaging practicable alternative, that it

would not cause or contribute to significant degradation of the waters of the United States, and

that it was in the public interest were arbitrary and capricious. Plaintiffs also contend that the

Corps’ failure to supplement the final EIS was arbitrary and capricious as was the EPA’s failure

to veto the permit.

A. Standard of Review

This court reviews plaintiffs’ claims under the Administrative Procedure Act (“APA”)

because the claims challenge the final action of an administrative agency. In conducting its

review, this court shall “hold unlawful and set aside agency action, findings, and conclusions

found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

7 the law.”

(2). An agency decision is arbitrary and capricious if

the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation of its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co.,

(1983).

Agency actions are presumed to be valid. See Ethyl Corp. v. EPA,

, 34 (D.C.

Cir. 1976). As long as an agency considers relevant factors and can articulate a rational

connection between the facts found and the choices made, then its decision will be upheld. See

State Farm,

; Marsh v. Or. Natural Res. Council,

(1989)

(holding that agency action will not be reversed absent a clear error of judgment). Moreover,

when an agency’s action relies on scientific and technical information touching upon the

agency’s area of expertise, a court is particularly deferential. See Marsh,

; Huls

Am., Inc. v. Browner,

(D.C. Cir. 1996) (“we will give an extreme degree of

deference to the agency when it is evaluating scientific data within its technical expertise”)

(internal citations and quotations omitted). The court must, however, conduct a “searching and

careful” review of the record to establish that the agency’s decision is rational and based on

consideration of all relevant factors. Citizens to Preserve Overton Park v. Volpe,

(1971). When a final agency action is challenged, the court’s review is limited to the

administrative record and the grounds for decision invoked by the agency. See Camp v. Pitts,

(1973); SEC v. Chenery Corp.,

(1947).

The parties have filed cross-motions for summary judgment as to all of plaintiffs’ claims.

Summary judgment is the proper mechanism for deciding, as a matter of law, whether an agency

8 action is supported by the administrative record and consistent with the APA standard of review.

Stuttering Found. of Am. v. Springer,

(D.D.C. 2007) (citing Richards v.

INS,

, 1177 & n. 28 (D.C. Cir. 1977)). This court does not apply typical summary

judgment standards, however, when reviewing a final action of an administrative agency under

the APA:

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate when the pleadings and the evidence demonstrate that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” FED . R. CIV . P. 56(c). In a case involving review of a final agency action under the [APA], however, the standard set forth in Rule 56(c) does not apply because of the limited role of a court in reviewing the administrative record. See Sierra Club v. Mainella,

(D.D.C. 2006). Under the APA, it is the role of the agency to resolve factual issues to arrive at a decision that is supported by the administrative record, whereas “the function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.” See Occidental Eng’g Co. v. INS,

(9th Cir. 1985); see also Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric.,

(9th Cir. 1994) ( “[T]his case involves review of a final agency determination under the [APA]; therefore, resolution of th[e] matter does not require fact finding on behalf of this court. Rather, the court’s review is limited to the administrative record.”).

Stuttering Found.,

. Accordingly, in reviewing the cross-motions for

summary judgment, the court evaluates whether the evidence in the administrative record

permitted the Corps to issue the permit to Newport News and the EPA to not veto the permit.

B. The Corps Has Not Adequately Explained Why the Reservoir Project Is the Least Damaging Alternative and Therefore Issuance of the Permit Was Arbitrary and Capricious.

The Corps is prohibited from issuing a permit if there is a less damaging practicable

alternative.

(a). “An alternative is practicable if it is available and capable of

being done after taking into consideration cost, existing technology, and logistics in light of the

9 overall project purposes.”

§ 230.10(a)(2). Plaintiffs argue that the Corps’ issuance of the

permit was arbitrary and capricious because it rejected less damaging and otherwise practicable

alternatives by relying on the outdated and erroneous analysis in the final EIS. Defendants rejoin

that regardless of the passage of time and lower water need, the Reservoir Project remains the

least-damaging practicable alternative.

In its ROD, the Corps found “that the analysis of alternatives in the Final Environmental

Impact Statement provides sufficient information regarding alternatives to be evaluated under

these Guidelines, consistent with the provisions of [

(a)(5)].” AR 023184. It

therefore limited its scope to those alternatives found practicable in the final EIS. AR 023204.

Based on the final EIS, the Corps “conclude[d] that the . . . Reservoir Project is the least

environmentally damaging practicable alternative.” AR 023184. Plaintiffs contend that it was

arbitrary and capricious to rely on the alternatives presented in the 1997 final EIS because of

several important changes that occurred between 1997 and 2005.

First, the projected water need decreased substantially.1 Even taking into account that

some of the decrease was due to the implementation of other practicable alternatives considered

in the final EIS, plaintiffs argue that the decrease that occurred as a result of the initial need

estimate being too great was substantial. Second, plaintiffs contend that between 1997 and 2005,

the cost of the Project increased, while the amount of water it would produce decreased.

1 The final EIS alternatives analysis was based on a projected need of 39.8 mgd. AR 044914. By the time the Corps decided to issue the permit in 2005, however, the projected need was only 15.9 mgd. AR 023154. This difference is due in part to the implementation of some of the other alternatives considered in the final EIS, specifically conservation measures accounting for a 5.6 mgd reduction in demand, see

and the construction of a desalination plan that provides 5.7 mgd to the area,

Corp’s Mot. Summ. J. at 10. The remainder of the difference, 13.6 mgd, is due to inaccuracies in the initial projections.

10 Consequently, the cost per mgd for the Project now exceeds the affordability criterion used in the

final EIS, even accounting for inflation, according to plaintiffs. Plaintiffs point to the Norfolk

District’s recommended ROD, which states that of the thirty-one alternatives included in the final

EIS, the RRWSG eliminated all but six because they would not meet the projected needs, were

too costly, or presented other practicability concerns. AR 078169. Only alternatives that

included reservoirs were carried forward for a detailed environmental review.

Plaintiffs argue that given the reduced water need and the increased cost of the Project,

some of these alternatives were improperly eliminated and other practicable alternatives may

now exist. This position is supported, plaintiffs note, by a letters from the FWS to the Corps in

both 2004 and 2005 stating the FWS’s belief that “other project alternatives, or combinations of

alternatives, exist which are less environmentally-damaging practicable alternatives than the

[Reservoir Project]” and “request[ing] that the Corps re-examine the alternatives which may

meet this lower need . . . .” AR 008989, 019520-21. Nowhere in the ROD, argue plaintiffs, does

the Corps even address these changes.

Plaintiffs point to several potentially practicable alternatives included in the final EIS that

they contend could, in combination, satisfy the water need. Plaintiffs assert that the combination

of conservation measures and development of new fresh groundwater resources, both found to be

practicable in the final EIS, could potentially meet the reduced need, and that the ROD did not

adequately assess the viability of this alternative. Plaintiffs further identify several alternatives

not carried forward for a complete evaluation in the final EIS that they contend the Corps

arbitrarily and capriciously failed to evaluate in the ROD, including reducing “dead storage” in

existing reservoirs to increase yields from those reservoirs combined with using the full pumping

11 capacity from the Chickahominy River, using the existing “Big Bethel” reservoir, and developing

additional groundwater supplies and desalination facilities.

The Corps responds that even with the reduced project deficit, the Reservoir Project is

still the only available practicable alternative that would produce the amount of water necessary

to satisfy the projected demand. Explaining that it is wrong to assume that the only reason

alternatives were omitted from consideration in the final EIS was that they were inadequate to

meet the projected need, the Corps asserts that “many of these alternatives were deemed

impracticable and eliminated from further analysis – not simply because they would not meet the

region’s water needs, but because they were too costly, technologically infeasible, or otherwise

impracticable.” Corps’ Mot. Summ. J. at 14.

The Corps contends that the ROD found that the only unimplemented practicable non-

reservoir alternative considered in the final EIS was further development of groundwater, which

would provide at most an additional 4.4 mgd and would therefore not meet the projected need,

and that the other reservoir locations were impracticable. The Corps points out that the ROD

also states that additional water conservation measures discussed in the final EIS are presently

being implemented and therefore implies that further conservation measures are impracticable.

Plaintiffs have the better argument.

In the ROD, the Corps states that it “find[s] that the analysis of alternatives in the Final

Environmental Impact Statement provides sufficient information regarding alternatives to be

evaluated under these Guidelines . . . .” AR 023184. The Corps never explains, however, why in

the face of the reduced need and the higher cost of the Reservoir Project, the final EIS remains

sufficient. There is no evidence in the ROD that the Corps re-analyzed whether any projects

12 rejected in the final EIS were rejected based on need or cost considerations that have now

changed. To the contrary, the Corps explains that it did not investigate greater groundwater

desalination because it was found impracticable in the final EIS and was therefore outside of the

scope of the ROD. AR 023204.

In the ROD, the Corps addresses many of the specific alternatives identified by plaintiffs.

For example, with respect to additional groundwater desalination, the ROD states that such

development “could place risks of adverse impacts and environmental damages on groundwater

supplies [and] such impacts may be as deleterious as the anticipated impacts from the loss of

wetlands associated with construction of the reservoir. Excessive groundwater withdrawal may

result in widespread saltwater intrusion and a non-sustainable supply of potable water.” AR

023203. In its motion, the Corps supplements this explanation with a cite to the final EIS, which

states that Virginia “has taken a strong position against new large-scale groundwater

withdrawals,” and therefore was unlikely to permit this alternative. AR 045019. This

explanation is not a sufficient basis for the Corps to determine that groundwater withdrawals

were impracticable. The fact that this option may be as deleterious as the Reservoir Project does

not establish that the Reservoir Project is the least-damaging alternative. And the fact that

Virginia had taken a strong position against groundwater withdrawals does not convince the

court that the alternative was impracticable, especially in light of the fact that the State of

Virginia initially denied Newport News’ permit for the Reservoir Project. With respect to the

conservation alternative, the ROD suggests that conservation efforts have been maximized, but

does not explain the discrepancy between the 7.1 to 11.1 mgd that the final EIS predicted would

be practicable from conservation measures and the 5.6 mgd reduction in demand based on

13 already implemented conservation measures factored into its new calculation of water needs. See

AR 023203, 045042.

Other alternatives are similarly treated in the ROD, which concludes that “the patchwork

of small supply alternatives may not meet the long-term water supply needs . . . and could place

risks of adverse impacts and environmental damages to [other water resources].” AR 023203

(emphasis added). Before determining that a Project that would flood 403 acres of functioning

wetlands is the least-damaging practicable alternative, the Corps must do more than give vague

explanations about the potential adverse effects of or potential political opposition to other

alternatives. It must explain fully, based an analysis adequate to the task, why other alternatives

are either impracticable or more damaging.

The Clean Water Act “compels that the [least-damaging] alternative be considered and

selected unless proven impracticable.” Utahns for Better Transp. v. U.S. Dep’t of Transp.,

(10th Cir. 2002). The court finds that the Corps acted arbitrarily and

capriciously when it found that the Reservoir Project was the least damaging practicable

alternative based on its assertions that other alternatives may not meet needs and could be more

damaging. The Corps must adequately explain why there is no less-damaging practicable

alternative. If the Corps cannot so explain based on the record before it, it must reconsider its

determination based on an adequate analysis of the alternatives.

C. The Corps’ Determination that the Reservoir Project Would Not Cause or Contribute to Significant Degradation of the Waters of the United States Was Arbitrary and Capricious.

The Clean Water Act prohibits the Corps from issuing section 404 permits if the

proposed discharge of dredged or fill material “will cause or contribute to significant degradation

14 of the waters of the United States.”

(c). Effects contributing to significant

degradation include “significantly adverse effects” on “the life stages of aquatic life and other

wildlife dependent on aquatic ecosystems” and on “aquatic ecosystem diversity, productivity and

stability” including “loss of fish and wildlife habitat.”

In the ROD, the Corps determined

that the permit would not significantly degrade waters of the United States. AR 023190.

Plaintiffs contend that this determination is arbitrary and capricious.

All of the parties agree that the project will have significant effects on the natural

environment. See AR 023186-89 (stating, in the ROD, that the project “would result in a

significant alteration of the natural ecosystem in Cohoke Creek” and “is expected to have a

major, long-term impact upon wetlands” and “the current functions of the aquatic ecosystem”).

In concluding that the project would not cause or contribute to significant degradation of the

waters of the United States, however, the Corps concluded that Newport News’ proposed

Mitigation Plan would adequately compensate for lost wetlands and their functions and therefore

overall there would be no significant degradation. AR 023190. Plaintiffs argue that this

conclusion is arbitrary and capricious because it violates the Corps’ no-net-loss policy and

watershed requirement, and because it runs counter to the evidence before the Corps. The court

will address plaintiffs’ concerns as they relate to (1) the Corps’ Mitigation Plan, (2) the effect of

the Reservoir Project on certain species, and (3) the effect of the Project on the salinity of the

Mattaponi River.

1. Mitigation Plan

Plaintiffs argue that the Corps’ finding that the Mitigation Plan will adequately

compensate for the wetland functions and values lost due to the Reservoir Project is arbitrary and

15 capricious because it violates Corps’ policies and runs counter to the evidence before the Corps.

As an initial matter, the court concludes that the Corps’ determination was not contrary to its no-

net-loss policy or watershed requirement.2 This conclusion, however, does not end the court’s

inquiry because the Clean Water Act prohibits the Corps from issuing a permit that will cause or

contribute to significant degradation of the waters of the United States. See

(c). Plaintiffs argue that the Corps’ decision that the permit would not cause or contribute

to significant degradation because of the Mitigation Plan was contrary to the evidence before it,

pointing to a series of letters from the EPA, the FWS, and others, and to the recommended ROD.

They argue that “all of the scientific comments submitted on the proposed mitigation plan, with

the exception of the applicant’s own reports, uniformly agreed that the plan could not replace the

wetland functions and values that would be lost.” All. Mot. Summ. J. at 17. The Corps responds

that letters that assessed plans prior to the proposed Mitigation Plan are irrelevant to whether the

Mitigation Plan would compensate for the lost wetlands, and that while it is required to consider

agencies’ and others’ comments, it is not required to agree with them. Newport News rejoins

that the EPA and the FWS were not entirely consistent in their views, and that the EPA did not

even comment on the Mitigation Plan.

2 The Corps correctly points out that the no-net-loss policy “expressly recogniz[es] that no net loss of wetland functions and values may not be achieved in each and every permit action.” See

, 9210-11 (March 12, 1990). Therefore, plaintiffs’ argument that the Mitigation Plan will not compensate for the loss of all functional values does not establish that the issuance of the permit is contrary to the no-net-loss policy. Moreover, the no-net-loss policy states that “[c]ompensatory actions . . . should be undertaken, when practicable, in areas adjacent or contiguous to the discharge site.”

. If such “on-site” mitigation “is not practicable, off-site compensatory mitigation should be undertaken in the same geographic area if practicable (i.e., in close physical proximity and, to the extent possible, the same watershed).”

Plaintiffs try to convert this language into a requirement that all mitigation occur within the same watershed as the Project. At the time of the ROD, there was no such requirement.

16 The record is replete with letters from the FWS and the EPA expressing opposition to the

issuance of the permit. See, e.g., AR 008968-69 (2004 letter from the FWS to the Corps

“reiterat[ing] our strong opposition to permit issuance,” and stating that the FWS “does not

believe that mitigation areas fully compensate for the stream valley wetland complex of Cohoke

Creek that would be lost.”); AR 040401 (2000 letter from the EPA to the Corps, stating the “EPA

has consistently acknowledged that the complex mosaic ecosystem which will be impounded by

the reservoir can not be replicated”). Importantly, in February 2005, after the completion of the

Mitigation Plan, the FWS wrote, “[t]he Service reiterates our strong opposition to permit

issuance. . . . We believe this project constitutes a net loss of wetlands and aquatic habitats, and

will result in significant degradation of the aquatic ecosystem.” AR 019520. The gist of the

Corps’ response to these comments is that the Corps admits that replication of all affected

wetlands functions is impossible, but that neither policy nor statutes require such replication. AR

023177.

The court agrees with the Corps that letters and findings that preceded the proposed

Mitigation Plan are relevant only insofar as they apply equally to the Project including the

Mitigation Plan. The court also agrees with the Corps that the Corps need only consider and

respond to these agencies’ and scientists’ comments, and need not agree with them. The Corps,

however, must demonstrate that it has considered significant comments and criticisms by

explaining why it disagrees with them; it may not dismiss them without adequate explanation.

See ARCO Oil & Gas Co. v. FERC,

(D.C. Cir. 1991) (“conclusory

statements cannot substitute for the reasoned explanation that is wanting in this decision”).

17 While the Corps is surely correct that precise replication of the destroyed wetlands is not

possible and not required, its finding that the Project will not cause or contribute to significant

degradation of the waters of the United States is “based upon successful implementation of the

Streams & Wetlands Mitigation Plan that results in no net loss of wetland functions and values.”

AR 023190. Thus, the Corps cannot simply say that it is not required to replicate the destroyed

wetlands as it argues; it must explain how the Mitigation Plan will adequately compensate for

lost wetland functions and values such that it results in no net loss of wetland functions and

values. In the ROD, the Corps purports to do so. It states:

Based upon Wetland Evaluation Technique and Evaluation for Planned Wetlands studies of the wetlands to be impacted, and the subsequent Habitat Evaluation Procedures analysis, the applicant performed functional assessments for this project which focused on four priority functions: total net primary productivity; water quality as quantified by sediment retention and nutrient assimilation; habitat functions using the Habitat Evaluation Procedures; and landscape interspersion and connectivity. . . .

AR 023174. The ROD then briefly discusses how Newport News’ functional assessment showed

gains in each of these areas, and then concludes:

On the basis of the increase in Total Net Primary Productivity, improved water quality, net habitat gains and improved landscape interspersion and connectivity, the Corps of Engineers has determined that successful completion of the elements of the Streams & Wetlands Mitigation Plan will as a whole offset anticipated losses in these functional areas . . . .

AR 023175. The Corps, however, does not address anywhere the fact that the same Wetland

Evaluation Technique (“WET”), Evaluation for Planned Wetlands (“EPW”) studies, and Habitat

Evaluation Procedures (“HEP”) on which Newport News based its functional assessments were

seriously critiqued by the Norfolk District in the recommended ROD. AR 049614-21

(concluding, among other things, that (1) “the Corps disagrees with the RRWSG’s inferences and

18 conclusions that the WET results are an estimate of the magnitude that the Cohoke Creek

wetlands in the . . . Reservoir project area perform different wetland functions,” (2) “the RRWSG

can make no claims that their EPW study compares the wetland functions of the Cohoke Creek

wetland system to the proposed mitigation sites,” and (3) “HEP accounting alone should not

completely decide the mitigation package for wetland losses”); see also AR 023771-75 (2004

EPA letter noting the “severe limitations of some of the methods applied” and particularly the

limitations of the RRWSG’s application of the WET analysis).3 In the face of such criticism, the

Corps must explain why it believes that the methods used by Newport News in the functional

assessment are a reliable basis for concluding that “successful completion of the elements of the

Streams & Wetlands Mitigation Plan will as a whole offset anticipated losses in these functional

areas.” See AR 023175.

In addition, the Corps does not address comments that without more site-specific

information it is impossible to determine whether the Mitigation Plan will replace functional

values to the point where the Project does not cause or contribute to significant degradation. See

AR 023802-05 (2005 letter from the Corps’ New England District to the Corps, stating “[t]he

mitigation plan is lacking much detail on grading, soil amendments, planting, and structural

features for the mitigation sites. . . . Lacking this information, it is difficult to determine the

likely success of the specific mitigation proposals . . . .”); AR 023772 (2004 letter from the EPA

to the Corps stating that the “RRWSG has not provided any site specific data that compares the

3 The Norfolk District also concluded, with respect to almost all of the sites it analyzed, that the mitigation sites would not replace the functions of the lost system. See AR 078078-83 (concluding, with respect to the Burlington Farm, Davis, Gulasky, Lanesville, Meadow Farm, Terrell and Townsend sites, all of which are included in the Mitigation Plan, that the restored or created wetlands “would not replace the functions of the impacted system”).

19 sites of impact with the proposed mitigation sites”); EPA KWR 004800 (undated evaluation by

individual scientists stating that the “Final Wetland Mitigation Plan” “is based on insufficient

site-specific soil and hydrologic data to form the basis for an acceptable final plan”). The

recommended ROD also raised this concern. AR 078079-83 (noting the “lack of site-specific

data” and the attendant uncertainties with respect to many of the proposed mitigation sites). The

FWS raised additional concerns that a great deal of the mitigation would be driven out-of-basin

due to costs. AR 019520-22.

The Corps fails to respond to these concerns in the ROD. The ROD concludes that “[t]he

net effect of the proposed discharges of fill material, inclusive of compensatory mitigation, will

not cause or contribute to significant degradation of waters of the United States. This

determination is based upon successful implementation of the . . . Mitigation Plan that results in

no net loss of wetland functions and values.” AR 023190. Nowhere in the ROD, however, does

the Corps address the comments that it is not possible to conclude that the Project will not cause

or contribute to significant degradation absent greater site-specific information about the

mitigation sites, nor the FWS’s concern that mitigation will be driven out of basin. Therefore,

the Corps’ conclusion that the issuance of the permit will not cause or contribute to significant

degradation of the waters of the United States is arbitrary and capricious.4

4 The Court also notes that the no-net-loss policy advises, with respect to wetlands mitigation, that “careful consideration should be given to its likelihood of success.” 55 Fed. Reg. at 9212. The ROD’s observation that “the plan has a high probability for success because it involves mostly restoration of formerly existing wetlands on approximately 80 percent of the 806 acres proposed for mitigation,” AR 023176, appears to the court to be cursory and insufficient to merit the “Corps’ conclusion that the mitigation plan will ensure that the functions and values of the affected wetlands are compensated for.” See Corps’ Mot. Summ. J. at 26 (emphasis added).

20 2. Indicator Species

Second, plaintiffs contend that to comply with the significant degradation standard, the

Corps must find that the proposed project will not likely result in significant loss of habitat. The

Corps’ own decision, however, acknowledges that the mitigation plan will not fully offset the

loss of redfin pickerel habitat and the Mitigation Plan acknowledges that it will not fully

compensate for habitat losses for the pine warbler, field sparrow, and pileated woodpecker as

well. AR 023174, 008935. These species were chosen as indicator species to evaluate how the

issuance of the permit would affect species with similar habitat needs. Thus, the findings of the

Mitigation Plan concerning loss of habitat would affect more than the studied species. See AR

008934. Plaintiffs assert that the Corps’ conclusion nonetheless that the Mitigation Plan will

result in a net gain in habitat, allegedly without any analysis, shows that the issuance of the

permit is arbitrary and capricious. The Corps responds that it concluded that “taken as a whole,

successful completion of the [Mitigation Plan] will result in an overall net gain in habitat,” AR

023174, and argues that the plaintiffs fail to demonstrate that this conclusion in unsupported by

the record or inconsistent with a policy of no net loss.

The Corps’ regulations state that effects contributing to significant degradation include

“[s]ignificantly adverse effects . . . on aquatic ecosystem diversity, productivity and stability.

Such effects may include . . . loss of fish and wildlife habitat.” 40 C.F.R § 230.10(c)(3).

“[W]hen an agency approves a project that the record before a reviewing court reveals will have

a significant adverse impact on marine wildlife, the agency determination must be reversed.”

Sierra Club v. U.S. Army Corps of Eng’rs,

, 1051 (2d Cir. 1985). Here, the

Mitigation Plan and the ROD disclose adverse effects on fish and wildlife habitat. See AR

21 008935, 023174. Plaintiffs do not explain how this disclosed loss of habitat is a significant

adverse effect in the context of the Project and Mitigation Plan. Consequently, the Corps’

conclusion that the loss of some habitat is not a “significantly adverse effect” because of the net

gain in habitat is not arbitrary and capricious.

3. Salinity Levels

Plaintiffs argue that the pumping hiatus and the provision for the emergency lifting of the

hiatus will have significant adverse effects not adequately considered by the Corps.5 Specifically,

plaintiffs argue that the Corps failed to consider the effect of a pumping hiatus, required by the

State of Virginia after the completion of the Final Environmental Impact Statement, on the

salinity of the Mattaponi River, and therefore lacked “sufficient information to make a reasonable

judgment” as to whether the permit would comply with the Clean Water Act. See

. The hiatus, plaintiffs argue, will result in greater pumping during non-hiatus months,

which correspond to the lowest flow months of the year and heightens the risk of saltwater

encroachment into the tidal freshwater zone with a significant potential effect on species

vulnerable to salinity. Further, plaintiffs argue, the Corps did not consider the potential effects of

5 The Tribe also argues that the Corps’ approval of the permit is arbitrary and capricious because the pumping hiatus period is based on inappropriate information and therefore the hiatus will not adequately protect the shad. The Tribe points to (1) the fact that the hiatus is based on water temperature information from the Hudson River, which may not correlate with the shad spawning season in the Mattaponi River, and (2) factors other than water temperature that influence spawning. The Corps rejoins that the existing pumping hiatus will be replaced with a more refined hiatus period defined by Mattaponi River water temperature triggers, and that the material on which the Tribe bases its second assertion was submitted to the Corps only two weeks before the ROD was signed and well after the close of the comment period. The Corps’ arguments have merit and the court does not find that the Corps was arbitrary and capricious on this basis.

22 the provision that allows the hiatus to be lifted during “extraordinary circumstances,” an

occurrence that plaintiffs allege may not be infrequent because of the hiatus itself. Because the

Corps did not consider these potential effects, plaintiffs argue, its decision was arbitrary and

capricious.

The Corps rejoins that plaintiffs are incorrect in their assertion that the hiatus limits

pumping to low-flow months, pointing to evidence that pumping will be allowed in relatively

high-flow months. Moreover, the Corps argues that the record demonstrates that the Corps fully

considered the possible effect of the pumping hiatus before concluding that the project would not

meaningfully affect the river’s salinity. The Corps studied the salinity effects of the originally

proposed Project, prior to the imposition of the pumping hiatus, and concluded that the natural

salinity of the Mattaponi River greatly exceeds any salinity changes predicted due to the

proposed withdrawals. This conclusion, the Corps argues, applies with even greater force to the

approved Project which, because of the pumping hiatus, will result in fewer withdrawals from the

Mattaponi River. Plaintiffs reply that “the fact that salinity changes stay within the natural

fluctuation does not necessarily mean that impacts from those salinity changes are minor or not

detrimental.” All. Reply at 22. This is because chronic exposure to higher levels may have

different effects than acute exposure, according to plaintiffs. Moreover, plaintiffs contend, the

authors of the simulation expressly limited their conclusions to the studied scenario, which was

different than the approved Project.

In the ROD, the Corps addressed the potential effects on the physical and chemical

characteristics of the aquatic ecosystem, disagreeing with the Norfolk District over the adverse

salinity effects that could result. AR 023185. The ROD states, “[s]ince the available information

23 indicates that potential salinity changes which may result from the withdrawal of water would

generally be within the natural salinity fluctuation of the estuarine system, it is reasonable to

conclude that the potential impacts from salinity changes in the Mattaponi River would be

minor.”

What the Corps does not address at all, however, is the Norfolk District’s

conclusion that even very small increases in salinity, because “they would be sustained for as

long as the withdrawal exists,” could harm vulnerable species and cause a “significant decrease

in growth and reproduction for these organisms.” AR 078256. Because the Corps failed to

consider the effects of this chronic exposure, its decision that changes in salinity will not have a

significant adverse effect on species is arbitrary and capricious.

As to plaintiffs argument that the Corps did not consider the effects of the provision that

allows for pumping during the hiatus in times of emergency, the Corps states that any claim of

“impacts that allegedly could arise if emergency withdrawals were allowed during the hiatus”

were “wholly speculative” and thus “insufficient to demonstrate any flaw in the Corps’

conclusion.” Corps’ Mot. Summ. J. at 29. Newport News adds that computer modeling showed

that suspensions during droughts were likely to occur in fewer than two out of seventy-four years.

Plaintiffs reply that this frequency is unsubstantiated and does not take into account the effect of

the hiatus itself on how soon and how frequent suspensions would occur. The Corps’ arguments

are well taken. The occurrence of an emergency lifting of the hiatus is too speculative to be a

basis for finding that the Corps’ issuance of the permit was arbitrary and capricious.

Because the court concludes that the Corps’ determination that the Project is the least

damaging practicable alternative and that the Project will not cause or contribute to significant

degradation of the waters of the United States is arbitrary and capricious in some respects, the

court grants summary judgment to plaintiffs on these claims.

24 D. The Corps’ Determination that Issuance of the Permit Was in the Public Interest Was Arbitrary and Capricious.

Plaintiffs argue that the issuance of the permit violates the Corps’ public interest

requirement, which prohibits the issuance of a section 404 permit if the “district engineer

determines that it would be contrary to the public interest.”

(a). This

regulation requires the district engineer to weigh the benefits that reasonably may be expected to

accrue from the proposal against its reasonably foreseeable detriments, considering all relevant

factors.

It states that “[f]or activities involving 404 discharges, a permit will be denied if the

discharge that would be authorized by such permit would not comply with the [EPA’s] 404(b)(1)

guidelines.”

Because the court concludes that the Corps’ determination that the issuance of

the permit complied with the 404(b)(1) guidelines (namely, the requirements that the project be

the least damaging practicable alternative and not cause or contribute to significant degradation)

was arbitrary and capricious, it also concludes that the Corps’ determination that issuance of the

permit complies with the public interest requirement is arbitrary and capricious. Summary

judgment is therefore appropriate in favor of plaintiffs on this claim.

E. The Corps’ Decision Not to Supplement the Final EIS Was Not Arbitrary and Capricious.

The final EIS in this case was issued in 1997, eight years before the ROD. The Corps

must supplement an EIS when it “makes substantial changes in the proposed action that are

relevant to environmental concerns,” or when there are “significant new circumstances or

information relevant to environmental concerns and bearing on the proposed action or its

impacts.”

(c). In order to successfully challenge the Corps’ decision to not

issue a supplemental EIS, plaintiffs must present information that is both new and would provide

a “seriously different picture of the environmental landscape.” See Nat’l Comm. for the New

25 River v. FERC,

(D.C. Cir. 2004). The standard of review is a narrow one,

but the court must review the record carefully to satisfy itself that the agency has made a

reasoned decision based on its evaluation of the significance – or lack of significance – of the

new information. Marsh,

.

Plaintiffs contend that it was arbitrary and capricious for the Corps not to supplement the

final EIS because of several significant new circumstances or changes to the Reservoir Project.

The Corps rejoins that none of the new circumstances pointed to by plaintiffs present a “seriously

different picture of the environmental landscape.” See New River,

. The Corps

has the better argument.

First, plaintiffs contend that the significant change in water need is a significant new

circumstance demanding supplementation so that the Corps may rigorously evaluate all

reasonable alternatives. The Corps responds that the change is not that big and that the Project is

still the only available practicable alternative. As explained supra in Part IIB, the Corps has not

adequately explained why the Project is the only practicable alternative to meet the water need.

The Corps’ failure to adequately explain itself does not prove, however, that it was arbitrary and

capricious for it not to prepare a supplemental EIS discussing practicable alternatives. The court

simply does not have enough information to determine whether the change in water need

presented a seriously different picture because it does not know whether other alternatives, not

examined in detail in the final EIS, are now practicable. Plaintiffs also have not pointed to any

new practicable alternatives not considered in the final EIS but which were practicable at the time

of the ROD. Therefore, the Corps’ failure to supplement the EIS is not arbitrary and capricious

in this regard. In responding to this court’s direction to adequately explain itself, however, if the

26 Corps determines that other alternatives, not examined in detail in the final EIS, have the

potential to meet the water need with less damaging effects, it should examine those alternatives

in detail in a supplemental EIS.

In addition, plaintiffs contend that the seasonal pumping hiatus imposed by the Virginia

permit changes the design of the Project causing different salinity effects than those studied in

the final EIS. The Corps responds that the pumping hiatus results in fewer effects than

previously considered in the final EIS, and that NEPA supplementation is not required where

changes to a proposed action reduce the effects of the action. When a change reduces the

environmental effects of an action, a supplemental EIS is not required. See Sierra Club v. U.S.

Army Corps of Eng’rs,

(11th Cir. 2002); see also Bd. of County

Comm’rs of Adams County, Colo. v. FAA,

, at *2 (D.C. Cir. February 22, 1994)

(holding that the FAA was not required to supplement an EIS after changing the location of air

cargo facilities from the original proposal because the relocation resulted in decreased emissions

and therefore caused no “serious environmental impact”).

This issue presents a close question. The hiatus, of course, is mandated to protect species

and will result in fewer withdrawals from the Mattaponi River. AR 023183. Plaintiffs, however,

point out that even if the withdrawals are lower, their distribution over time may be significantly

different than that modeled in the final EIS and therefore may have different effects than those

studied. The Corps does little to respond other than to point to the ROD, which states that “the

proposed raw water withdrawal regime would result in less impacts than those described in the

Final Environmental Impact Statement” without further analysis. AR 023171, 023183.

Nonetheless, given that the hiatus was implemented to provide additional protection to shad and

27 other fish species, the court concludes that the Corps was not arbitrary and capricious when it

decided not to supplement the EIS in this regard.

Plaintiffs point to several other pieces of new information including the fact that one of

the mitigation sites included in the Mitigation Plan is no longer available, a study that suggested

that the Project may cause an increase in methyl mercury, and the fact that the VMRC permit

allows a chemical feed system that may effect aquatic life, all of which were not considered in

the final EIS. The Corps responds that the Mitigation Plan contains several contingency sites in

the case that any of its preferred sites are unavailable. With respect to the risk of the formation of

methyl mercury, the Corps states that it requested information in response to this concern and

reasonably concluded that there is no site-specific evidence to indicate that it will be a problem

for the Reservoir Project. And the chemical feed system, the Corps explains, need not be

evaluated because there are no current plans to use such a system.

While the court is sympathetic to the idea that the unavailability of a preferred mitigation

site opens the possibility that the Mitigation Plan will not produce the promised benefits, it

cannot conclude that the Corps was arbitrary and capricious to not supplement the final EIS to

discuss the loss of one preferred mitigation site. In any future plan, there is the possibility that

circumstances will change and the Mitigation Plan correctly prepares for such a circumstance

with contingency sites. AR 023193.6 With respect to the methyl mercury issue, the Corps fully

considered the FWS’s concern, requiring Newport News to gather information about whether

6 Of course, as discussed in Part IIC, supra, the Corps must adequately investigate preferred and contingency sites to ensure that it has enough information to determine that the Mitigation Plan, regardless of whether mitigation ultimately occurs on preferred or contingency sites, will adequately compensate for the ecosystem loss due to the Project.

28 similar nearby dams had led to increased methyl mercury, and found that they did not. AR

023205. And while the Corps’ argument that the use of the chemical feed system is not

reasonably foreseeable seems at odds with the special conditions placed in the permit regarding

the feed system, the court nonetheless concludes that the Corps’ failure to supplement the EIS in

this regard is not arbitrary and capricious. If and when Newport News decides to install and use

the chemical feed system, it will need the approval of both the Corps and the FWS. AR 023318.

Plaintiffs also argue that a supplemental EIS is necessary to examine the cumulative

impacts of the project. NEPA requires federal agencies to consider cumulative impacts, which

are defined as “impact[s] on the environment which result[] from the incremental impact of the

action when added to other past, present, and reasonably foreseeable future actions . . . .”

& 1508.25. Pointing specifically to other wetland losses in the area and the

possible expansion of the reservoir, plaintiffs argue that the Corps’ statement in the ROD that

“[t]here are no additional projects of this scope or magnitude anticipated in the project area.

Therefore, no cumulative impacts are expected to occur” simply sweeps aside concerns about

cumulative impacts. See AR 23189. The Corps responds that it did evaluate cumulative impacts

of other wetland losses and that it did not have to evaluate future expansion because such an

expansion is not a proposed action requiring analysis at this point, nor is it a reasonably

foreseeable future action. The Corps has the better argument.

Plaintiffs do not argue that the final EIS did not consider cumulative impacts. Instead,

they appear to argue that the Corps did not take these impacts into account when it issued the

permit. In fact, the recommended ROD discusses cumulative impacts at length. See AR 78181-

83. The purpose of supplementing an EIS is to bring new information to light. See

1502.9(c). Here, plaintiffs seem to argue not that there is new information, but that the Corps did

not adequately consider the information before it. This argument seems better suited to a

discussion of whether the Corps complied with the substantive statutes than whether the Corps

was required to supplement the EIS. Therefore, plaintiffs fail to show that it was arbitrary and

capricious not to supplement the EIS in this regard. On plaintiffs’ claim that the Corps violated

NEPA by failing to supplement the EIS, summary judgment is therefore appropriate in favor of

the Corps.

F. The EPA Acted Arbitrarily and Capriciously by Considering Factors Outside of the Scope of Its Statutory Authority When It Decided Not to Veto the Permit.

The Clean Water Act authorizes the EPA Administrator to veto permits that will have an

unacceptable adverse effect on the environment.

(c). It states:

The Administrator is authorized to prohibit the specification . . . of any defined area as a disposal site, and he is authorized to deny or restrict the use of any defined area for specification . . . as a disposal site, whenever he determines, after notice and opportunity for public hearings, that the discharge of such materials into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas. Before making such determination, the Administrator shall consult with the Secretary. The Administrator shall set forth in writing and make public his findings and his reasons for making any determination under this subsection.

Plaintiffs argue that the EPA’s failure to veto the permit under this provision was arbitrary

and capricious because (1) the record shows that the EPA believed the issuance of the permit

would result in unacceptable adverse effects and (2) the Regional Administrator’s declaration

shows that his decision not to veto the permit was not based on any analysis of the environmental

effects of granting the permit. Defendants rejoin that the only decision this court may review is

the EPA’s decision not to initiate the notice and comment process that could result in a

30 determination of unacceptable adverse effects and a veto, and that this decision in entirely within

the discretion of the Administrator and therefore unreviewable. Moreover, defendants argue, the

Regional Administrator’s declaration demonstrates that he reasonably decided not to initiate the

veto process. Plaintiffs are correct for their second stated reason.

As an initial matter, the court has already determined that the decision under review is the

EPA’s decision not to veto the permit, and the standard against which to judge the agency’s

exercise of discretion is whether the discharge will have an unacceptable adverse effect. Alliance

to Save the Mattaponi v. U.S. Army Corps of Eng’rs,

(D.D.C. 2007).

Defendants moved for this court to reconsider its judgment and the court denied the motion.

Defendants’ current efforts to redefine the determination under review are equally unavailing.

While the Clean Water Act requires the Administrator to provide for notice and comment in the

course of determining whether or not to veto a permit, this does not constitute an entirely

separate decision to “initiate the Section 404(c) process,” see Corps’ Mot. Summ. J. at 52, but is

simply part of the process through which the Administrator may make the determination of

unacceptable adverse effects that will allow him to veto the permit.

The statute authorizes the Administrator to veto a permit “whenever he determines . . .

that [it] will have an unacceptable adverse effect . . . .”

(c) (emphasis added).

To be sure, this grants the Administrator “a degree of discretion.” Her Majesty the Queen in

Right of Ontario v. U.S. EPA,

, 1533 (D.C. Cir. 1990). But this discretion “is not a

roving license to ignore the statutory text.” Massachusetts v. EPA,

(2007).

Instead, the Administrator’s exercise of discretion must relate to whether the permit will “have an

unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas . . . ,

wildlife, or recreational areas.” See

(c).

31 Here, it is clear that the Administrator’s decision not to veto the permit was not based on

his determination that the permit would not likely have unacceptable adverse effects, but on a

whole range of other reasons completely divorced from the statutory text. The Regional

Administrator (who, by regulation, must first recommend that the Administrator deny a permit,

see

) based his decision on his determination that engaging in the required

notice and comment proceedings would divert resources; that given the extensive public process

provided by the Corps, another such process would be unlikely to add any new information; that

there was a water supply shortfall that needed to be addressed; and that the permit would likely

be subject to litigation in any event, among other things. EPA’s Mem. in Opp. to Pls.’ Motion to

Compel [#60] Ex. at ¶ 10 (hereinafter, “Welsh Decl.”). None of these bases for his decision have

anything to do with whether granting the permit would have an unacceptable adverse effect.7

Notably, the Regional Administrator “did not base [his] determination on any analysis of whether

or not the [Project] complied with the Guidelines promulgated by EPA pursuant to section 404(b)

of the Clean Water Act,”

(d), something the EPA’s regulations specifically direct him

to do in determining whether issuance of a permit would result in unacceptable adverse effects,

see 40 C.F.R § 231.2(e). Because the Regional Administrator “relied on factors which Congress

has not intended [him] to consider,” his decision was arbitrary and capricious. See State Farm,

.

7 Of the eight considerations listed by the Regional Administrator, only one comes close to addressing the statutory text. The Regional Administrator states, “While I was aware that the proposed [Project] would result in the loss of an intact and functioning ecosystem, and that it would be difficult to fully mitigate for these impacts, I balanced that consideration against my understanding that the goal of the Mitigation Plan was full functional replacement . . . .” Welsh Decl. ¶ 10(e). Even this, however, does not suggest that the Regional Administrator had determined that the issuance of the permit would not likely have an unacceptable adverse effect.

32 In deciding that the EPA acted arbitrarily and capriciously in this case, the court does not

find that the EPA must always undergo notice and comment to make a determination that

issuance of a permit will or will not have an unacceptable adverse effect.8 Rather, the court

decides that the Administrator must base his decision of whether or not to make a determination

that issuance of a permit has unacceptable adverse effects, and therefore veto the permit, on

whether he believes the issuance of the permit is likely to have unacceptable adverse effects.

Summary judgment is granted to plaintiffs on this claim.

III. CONCLUSION

For the foregoing reasons, plaintiffs’ motions for summary judgment [## 71, 72] are

granted in part and denied in part and defendants’ motions for summary judgment [## 76, 78] are

granted in part and denied in part. An appropriate order accompanies this memorandum opinion.

Henry H. Kennedy, Jr. United States District Judge

8 And the court certainly does not endorse any view that simply by submitting negative comments on a permit application, the EPA has determined that the issuance of the permit will have unacceptable adverse effects. See Corps’ Mot. Summ. J. at 59.

33