Appeal from the United States District Court for the Western District of Washington John C. Coughenour, District Judge, Presiding D.C. No. 2:10-cv-01108-JCC
Argued and Submitted May 8, 2012-Seattle, Washington
Before: Michael Daly Hawkins, Jay S. Bybee, and Carlos T. Bea, Circuit Judges.
Puget Sound Energy ("PSE") maintains and operates a hydroelectric power plant at the 268-foot-high Snoqualmie Falls in the state of Washington. The Snoqualmie River drains a large watershed above the falls, and all of the water from this area must pass through a single narrow channel before it reaches the falls, creating a bottleneck during heavy rains. This subjects the City of Snoqualmie, located just upstream of the falls, to persistent and significant flooding.
In the process of upgrading and modifying the plant, PSE plans to lower the dam located in the channel above the falls in order to mitigate these upstream flooding problems. PSE has already obtained a license for the project from the Federal Energy Regulatory Commission ("FERC"). Because the upgrade involves discharging fill material into the waters of the United States, which is prohibited under the Clean Water Act ("CWA") without a permit, PSE sought verification from the U.S. Army Corps of Engineers ("Corps") that it could proceed under a series of general nationwide permits ("NWPs") authorizing certain discharges, rather than applying to the Corps for an individual permit. The Corps verified that it could. Downstream property owners formed the Snoqualmie Valley Preservation Alliance ("Alliance") to challenge this decision, which they contend will exacerbate flooding problems below the falls. The district court granted summary judgment for the Corps. For the reasons explained below, we affirm.
In 1898, a hydroelectric power plant was first constructed at the falls. PSE proposed an upgrade to the plant in 1991, which FERC approved in a 2004 license after a lengthy study published in a 1996 Environmental Impact Statement ("EIS"). Both upstream and downstream flooding effects were evaluated in the EIS. On judicial review, we upheld FERC's decision. Snoqualmie Indian Tribe v. FERC, 545 F.3d 1207 (9th Cir. 2008).
Meanwhile, in 2004 the Corps completed a section 205*fn1
flood control project and published a 1999 Environmental Assessment ("EA") which evaluated the upstream and downstream flooding effects of the project. Because the project implemented slightly different changes related to the falls than those initially planned under the FERC license, PSE applied for an amendment to the license. Under the proposed changes to the project, the existing dam would be lowered by 2 feet and lengthened by 37 feet to match the newly excavated river bank. FERC prepared an EA concluding that the proposed changes would have little effect on flood elevations, and granted the amendment in 2009. Puget Sound Energy, Inc., 127 FERC ¶ 62,174, ¶ 64,482, 2009 WL 1549353, at *10 (2009).
Because completion of the project would involve both temporary and permanent excavation and fill of wetlands, PSE needed a permit under section 404 of the CWA, 33 U.S.C. § 1344. There are two types of section 404 permits: individual permits that authorize specific activities on a case-by-case basis, id. § 1344(a), and general permits that provide standing authorization for all activities that fit the description in the permit, id. § 1344(e). Individual permits are subject to the requirements of the National Environmental Policy Act ("NEPA"). 33 C.F.R. § 325.2(a)(4). A general nationwide permit, on the other hand, must undergo that extensive process at the time the permit is promulgated, rather than at the time an applicant seeks to discharge fill material under such a permit. Id. § 330.5(b)(3). Project proponents may usually "proceed with activities authorized by NWPs without notifying the [Corps]." Id. § 330.1(e)(1). The Corps does, however, allow permittees to request verification from the Corps that an activity complies with the terms and conditions of a nationwide permit, and in some cases permittees are required do so prior to beginning work under the permit. Id. § 330.6(a)(1).
PSE submitted pre-construction notification of its plans to the Corps and sought verification that its activities would be covered under NWPs 33 and 39. In a Verification Letter and accompanying Decision Document, both issued on May 19, 2009, the Corps determined that PSE's activities fell within the scope of three different nationwide permits. First, the removal of the old dam and the construction of the new dam were determined to fall within the scope of NWP 3(a), which authorizes discharges for the replacement of a current structure, including minor deviations. See Reissuance of Nationwide Permits, 72 Fed. Reg. 11,092, 11,181 (Army Corps of Eng'rs Mar. 12, 2007).*fn2 Second, the temporary river diversion for purposes of preparing the work areas was determined to fall within the scope of NWP 33, which authorizes temporary discharges for "necessary . . . construction activities." See id. at 11,187. Third, the modifications to the power plant intakes and powerhouse structures were determined to fall within the scope of NWP 39, which authorizes discharges for the "expansion of . . . attendant features that are necessary for the use" of "commercial" and "institutional" buildings. See id. at 11,188. The Corps concluded that the project would have minimal individual and cumulative impacts and that it complied with all terms and conditions of NWPs 3, 33, and 39, and imposed a series of special conditions.
The Alliance filed this lawsuit challenging the Verification Letter. The complaint asserts three causes of action: first, the Corps violated the CWA by authorizing discharges under the nationwide permits rather than requiring an individual permit; second, the Corps violated NEPA by failing to prepare the EA or an EIS required for individual permits; and third, the Corps violated the Administrative Procedure Act ("APA") because its authorization of the discharges was arbitrary and capricious or otherwise not in accordance with the law. PSE intervened in the proceedings as a ...