Friends of the Santa Clara v. US Army Corps of Engineers , 887 F.3d 906 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRIENDS OF THE SANTA CLARA No. 15-56337
RIVER; SANTA CLARITA
ORGANIZATION FOR PLANNING THE D.C. No.
ENVIRONMENT, 2:14-cv-01667-
Plaintiffs-Appellants, PSG-CW
v.
OPINION
UNITED STATES ARMY CORPS OF
ENGINEERS; KIMBERLY COLLOTON,
in her official capacity as
Commander and District Engineer of
the Los Angeles District of the U.S.
Army Corps of Engineers,
Defendants-Appellees,
and
THE NEWHALL LAND AND FARMING
COMPANY, a California limited
partnership,
Intervenor-Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
2 FRIENDS OF THE SANTA CLARA RIVER V. USACE
Argued and Submitted February 10, 2017
Submission Vacated June 23, 2017
Resubmitted April 2, 2018
Pasadena, California
Filed April 9, 2018
Before: Andrew J. Kleinfeld, Sandra S. Ikuta,
and Jacqueline H. Nguyen, Circuit Judges.
Opinion by Judge Ikuta
SUMMARY*
Environmental Law
The panel affirmed the district court’s summary judgment
in favor of the U.S. Army Corps of Engineers and intervenor
Newhall Land and Farming in an action challenging the
Corps’ issuance of a permit, pursuant to Section 404 of the
Clean Water Act, to Newhall Land, authorizing the discharge
of materials into the Santa Clara River as part of the Newhall
Ranch project in Los Angeles County near Santa Clarita,
California.
After this case was argued on appeal, the Corps and
Newhall Land settled with four of the six plaintiffs, and
stipulated to their voluntary dismissal. The Corps
acknowledged that the remaining plaintiffs, Santa Clarita
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
FRIENDS OF THE SANTA CLARA RIVER V. USACE 3
Organization for Planning the Environment and Friends of the
Santa Clara River, had standing to pursue their Clean Water
Act claim. The panel held that the plaintiffs also had standing
for their National Environmental Policy Act (“NEPA”) and
Endangered Species Act (“ESA”) claims.
The panel rejected challenges under the Clean Water Act
to the Corp’s permit issuance. The panel concluded that the
Corps complied with its obligations under the Clean Water
Act because the Corps properly considered practicability as
required under the Section 404(b) Guidelines.
The panel further concluded that the Corps complied with
the ESA because its determination that Southern California
steelhead would not be affected by the Project, and its
corresponding decision not to consult with the National
Marine Fisheries Service, were not arbitrary and capricious.
For similar reasons, the panel concluded that the Corps
reasonably assessed the Project’s potential impacts to the
steelhead and provided sufficient discussion to satisfy its
NEPA obligations.
COUNSEL
John Buse (argued) and Aruna Prabhala, Center for
Biological Diversity, Oakland, California; Dean Wallraff,
Advocates for the Environment, Shadow Hills, California; for
Plaintiffs-Appellants.
Anna Katselas (argued), Lesley Lawrence-Hammer, Norman
L. Rave, Devon Lehman McCune, Jennifer Scheller
Neumann, and Andrew C. Mergen, Attorneys; Eric Grant,
4 FRIENDS OF THE SANTA CLARA RIVER V. USACE
Deputy Assistant Attorney General; Jeffrey H. Wood, Acting
Assistant Attorney General; Environment & Natural
Resources Division, United States Department of Justice,
Washington, D.C., for Defendants-Appellees.
James F. Rusk (argued) and Robert J. Uram, Sheppard Mullin
Richter & Hampton LLP, San Francisco, California; David P.
Hubbard v. Mark J. Dillon, Gatzke Dillon & Ballance LLP,
Carlsbad, California; Miriam A. Vogel, Morrison and
Foerster LLP, Los Angeles, California; for Intervenor-
Defendant-Appellee.
OPINION
IKUTA, Circuit Judge:
Under Section 404 of the Clean Water Act, 33 U.S.C.
§ 1344, the U.S. Army Corps of Engineers (Corps) may issue
permits authorizing the discharge of dredged or fill material
into the navigable waters of the United States. In this case,
we consider challenges to the Corps’s issuance of a Section
404 permit to Newhall Land and Farming (Newhall Land),
authorizing the discharge of materials into the Santa Clara
River as part of the Newhall Ranch project in northwestern
Los Angeles County near Santa Clarita, California.
The Santa Clarita Organization for Planning the
Environment (SCOPE) and the Friends of the Santa Clara
River (Friends)1 challenge the permit issuance under the
1
We refer to the organizations collectively as “SCOPE” where
appropriate, or otherwise refer to them by their respective names. After
oral argument, four other plaintiffs in this litigation, the Center for
FRIENDS OF THE SANTA CLARA RIVER V. USACE 5
Clean Water Act (CWA), the National Environmental
Policy Act (NEPA), and the Endangered Species Act (ESA).2
We conclude that the Corps complied with the numerous
requirements prescribed by each of these statutes, and we
affirm.
I
We begin by reviewing the legal framework.
A
Under the CWA, the discharge of any pollutant
(including dredged or fill material) to navigable waters is
unlawful unless the discharge complies with various statutory
requirements, including obtaining a permit issued by the
Corps under Section 404 of the CWA, 33 U.S.C. § 1344 (a
Section 404 Permit). 33 U.S.C. §§ 1311(a), 1362(6), (12);
see also United States v. Riverside Bayview Homes, Inc.,
474 U.S. 121, 123 (1985). Section 404 of the CWA
authorizes the Corps to “issue permits, after notice and
opportunity for public hearings[,] for the discharge of
Biological Diversity, the Wishtoyo Foundation, Ventura Coastkeeper, and
the Santa Ynez Band of Chumash Mission Indians of the Santa Ynez
Reservation (the Santa Ynez Band) reached a settlement with the Corps
and Newhall Land and were voluntarily dismissed from the case.
2
The Santa Ynez Band also advanced a challenge under the National
Historic Preservation Act (NHPA). Because neither of the remaining
plaintiffs has standing to pursue the NHPA claim, we GRANT the Corps
and Newhall Land’s unopposed motion to dismiss the NHPA claim. We
also GRANT their unopposed motion for a limited remand to the district
court to seek partial vacatur of the NHPA portion of its decision as part of
the settlement agreement.
6 FRIENDS OF THE SANTA CLARA RIVER V. USACE
dredged or fill material into the navigable waters at specified
disposal sites.” 33 U.S.C. § 1344(a); see also 33 C.F.R.
§ 325.2 (processing of applications). The term “navigable
waters” means “the waters of the United States, including the
territorial seas,” 33 U.S.C. § 1362(7), which is further defined
by regulation to include wetlands, 33 C.F.R. § 328.3(a)(3)
(2014).3
When an applicant applies for a permit for a discharge to
wetlands, the Corps evaluates whether to grant or deny the
application under guidelines developed by the Environmental
Protection Agency (EPA) in conjunction with the Secretary
of the Army and published in 40 C.F.R. part 230. See
33 C.F.R. § 320.2(f); see also 33 U.S.C. § 1344(b). These
regulations, referred to as the Section 404(b)(1) Guidelines,
or simply the Guidelines, provide that “no discharge of
dredged or fill material shall be permitted if there is a
practicable alternative to the proposed discharge which would
have less adverse impact on the aquatic ecosystem, so long as
3
The 2015 regulations setting forth a new definition of “waters of the
United States” had been stayed by the U.S. Court of Appeals for the Sixth
Circuit. In re EPA and Dep’t of Def. Final Rule, 803 F.3d 804, 809 (6th
Cir. 2015). On January 22, 2018, the Supreme Court held that the courts
of appeals do not have original jurisdiction to review challenges to the
2015 Rule. Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138 S. Ct. 617, 623
(2018). Pursuant to an Executive Order, the Environmental Protection
Agency, Department of Army, and the Corps published a final rule
delaying the applicability of the 2015 regulations until February 6, 2020.
Definition of “Waters of the United States”—Addition of an Applicability
Date to 2015 Clean Water Rule, 83 Fed. Reg. 5200 (Feb. 6, 2018). Until
that applicability date, “the agencies will administer the regulations in
place prior to the 2015 Rule, and will continue to interpret the statutory
term ‘waters of the United States’ to mean the waters covered by those
regulations.” Id. at 5201. We therefore rely on the definition set forth in
the prior regulations.
FRIENDS OF THE SANTA CLARA RIVER V. USACE 7
the alternative does not have other significant adverse
environmental consequences” except as otherwise specified.
40 C.F.R. § 230.10(a). That is, the Corps must analyze
alternatives to the proposed discharge and “select the least
environmentally damaging practicable alternative.” Bering
Strait Citizens for Responsible Res. Dev. v. U.S. Army Corps
of Eng’rs, 524 F.3d 938, 955 (9th Cir. 2008).
The Guidelines further provide that “[a]n alternative is
practicable if it is available and capable of being done after
taking into consideration cost, existing technology, and
logistics in light of overall project purposes.” 40 C.F.R.
§ 230.10(a)(2). The term “practicable alternatives” includes
“[a]ctivities which do not involve a discharge of dredged or
fill material into the waters of the United States or ocean
waters” and “[d]ischarges of dredged or fill material at other
locations in waters of the United States or ocean waters.”
40 C.F.R. § 230.10(a)(1).
In order to determine whether an alternative is
practicable, “the Corps must first determine the ‘overall
project purpose.’” Jones v. Nat’l Marine Fisheries Serv.,
741 F.3d 989, 1002 (9th Cir. 2013) (quoting 40 C.F.R.
§ 230.10(a)(2)). In defining the overall project purpose, “the
Corps has a duty to consider the applicant’s purpose,”
Sylvester v. U.S. Army Corps of Eng’rs, 882 F.2d 407, 409
(9th Cir. 1989), and “the objectives of the applicant’s
project,” id. (quoting La. Wildlife Fed’n, Inc. v. York,
761 F.2d 1044, 1048 (5th Cir. 1985) (per curiam)). “Indeed,
it would be bizarre if the Corps were to ignore the purpose for
which the applicant seeks a permit and to substitute a purpose
it deems more suitable.” Id. (quoting La. Wildlife Fed’n,
761 F.2d at 1048). The permit applicant may not define the
project purpose narrowly “in order to preclude the existence
8 FRIENDS OF THE SANTA CLARA RIVER V. USACE
of any alternative sites and thus make what is practicable
appear impracticable.” Id. But when the applicant’s stated
purpose is “genuine and legitimate,” the Corps may not reject
it. Id.
In determining the overall project purpose, the Corps will
“normally accept decisions” by state, local, and tribal
governments with respect to “zoning and land use matters,”
unless “there are significant issues of overriding national
importance.” 33 C.F.R. § 320.4(j)(2). Likewise, when the
Corps approves or undertakes projects requiring the discharge
of material into the waters of the United States, it must
consider “officially adopted state, regional, or local land use
classifications, determinations, or policies.” 33 C.F.R.
§ 336.1(c)(11)(ii).
In analyzing “practicable alternatives,” the Corps must
determine whether a project is “water dependent.” A project
that “does not require access or proximity to or siting within
the special aquatic site in question to fulfill its basic purpose”
is “not ‘water dependent.’” 40 C.F.R. § 230.10(a)(3). A
project’s “basic purpose (for determining water dependency)
is distinct from the overall purpose (for determining
practicable alternatives).” Del. Riverkeeper Network v. U.S.
Army Corps of Eng’rs, 869 F.3d 148, 157 (3d Cir. 2017)
(emphasis omitted). When a project’s basic purpose is not
water dependent, “practicable alternatives that do not involve
special aquatic sites are presumed to be available, unless
clearly demonstrated otherwise.” 40 C.F.R. § 230.10(a)(3).
“[C]lassification of an activity as ‘non-water dependent’ does
not serve as an automatic bar to issuance of a permit . . . [it]
simply necessitates a more persuasive showing than
otherwise concerning the lack of alternatives.” Sylvester,
882 F.2d at 409 (quoting La. Wildlife Fed’n, Inc. v. York,
FRIENDS OF THE SANTA CLARA RIVER V. USACE 9
603 F. Supp. 518, 527 (W.D. La. 1984), aff’d in part and
vacated in part, 761 F.2d 1044 (5th Cir. 1985)) (alterations in
original). When the Corps recognizes that a project is not
water dependent, considers a range of alternative sites for the
project, and concludes that there are no practicable alternative
sites available, the presumption is rebutted. Bering Strait
Citizens, 524 F.3d at 947; see also Butte Envtl. Council v.
U.S. Army Corps of Eng’rs, 620 F.3d 936, 945 (9th Cir. 2010)
(holding that “the Corps applied the proper presumption and
found that it had been rebutted” because “the Corps
acknowledged that the proposed project was not water
dependent” and reviewed “over a dozen alternative sites”).
We then defer to the Corps’s approval of an alternative.
Bering Strait Citizens, 524 F.3d at 947.
B
Before issuing a permit allowing the discharge of dredge
or fill materials into wetlands, the Corps must comply with
NEPA, 42 U.S.C. §§ 4321–4370m-12; see 33 C.F.R.
§ 325.2(a)(4) and Appendix B. NEPA requires all federal
agencies to consider the environmental impact of any “major
Federal actions significantly affecting the quality of the
human environment,” and provide a detailed statement on
“the environmental impact of the proposed action,” “any
adverse environmental effects which cannot be avoided
should the proposal be implemented,” and any “alternatives
to the proposed action.” 42 U.S.C. § 4332(C).
The Corps’s procedures for implementing NEPA include
directions for preparing an environmental impact statement
(EIS) for a decision on a permit application. See 33 C.F.R.
§§ 230.13, 325.2(a)(4). If the Corps is the lead agency,
33 C.F.R. § 230.16(a); 40 C.F.R. § 1501.5, it must address the
10 FRIENDS OF THE SANTA CLARA RIVER V. USACE
purpose and need of the project and consider reasonable
alternatives, among other requirements. 33 C.F.R. § 325 app.
B (9)(b)(4), (5). Because “NEPA does not provide
substantive protections, only procedural ones,” Conservation
Cong. v. Finley, 774 F.3d 611, 615 (9th Cir. 2014), “our
review is limited to whether the EIS contains ‘a reasonably
thorough discussion of the significant aspects of the probable
environmental consequences,’” Nat. Res. Def. Council v.
U.S. Dep’t of Transp., 770 F.3d 1260, 1271 (9th Cir. 2014)
(quoting City of Carmel-by-the-Sea v. U.S. Dep’t of Transp.,
123 F.3d 1142, 1150 (9th Cir. 1997)). Although a court must
“insure that the agency has taken a hard look at
environmental consequences,” a court cannot “interject itself
within the area of discretion of the executive as to the choice
of the action to be taken.” Kleppe v. Sierra Club, 427 U.S.
390, 410 n.21 (1976) (quoting Nat. Res. Def. Council v.
Morton, 458 F.2d 827, 838 (D.C. Cir. 1972)) (internal
quotation marks omitted).
C
The Corps must also comply with the ESA, 16 U.S.C.
§§ 1531–44. Under the ESA, each federal agency must
“insure that any action authorized, funded, or carried out by
such agency . . . is not likely to jeopardize the continued
existence of any endangered species or threatened species or
result in the destruction or adverse modification of habitat” of
endangered or threatened species. 16 U.S.C. § 1536(a)(2).
Therefore, the Corps must review the permit application “for
the potential impact on threatened or endangered species
pursuant to section 7 of the Endangered Species Act.”
33 C.F.R. § 325.2(b)(5). If the Corps determines that “the
proposed activity may affect an endangered or threatened
species or their critical habitat,” it must “initiate formal
FRIENDS OF THE SANTA CLARA RIVER V. USACE 11
consultation procedures with the U.S. Fish and Wildlife
Service [(FWS)] or National Marine Fisheries Service”
(NMFS). Id.4 Conversely, if the Corps “determines that the
proposed activity would not affect listed species or their
critical habitat, [it] will include a statement to this effect” in
the public notice regarding the application for a permit, id.,
and “the consultation requirements are not triggered,” Pac.
Rivers Council v. Thomas, 30 F.3d 1050, 1054 n.8 (9th Cir.
1994).
After the Corps has completed its review, it will
determine whether a permit should be issued and (if an EIS
has been prepared) issue a record of decision (ROD).
33 C.F.R. § 325.2(a)(6).
II
We next turn to the lengthy history of the Newhall Ranch
Project and the activities preceding the Corps’s issuance of
the Section 404 Permit.
Starting in the early 1990s, Newhall Land, a land
management company, and Los Angeles County (the County)
began developing a land use plan (the Newhall Ranch
Specific Plan) to guide the development of the Newhall
4
FWS and NMFS apportion listing and consultation responsibilities
by species. See 50 C.F.R. § 402.01(b). FWS is responsible for land-based
and freshwater species, and NMFS is responsible for marine and
anadromous species. See Conservation Cong. v. U.S. Forest Serv.,
720 F.3d 1048, 1051 (9th Cir. 2013); Gifford Pinchot Task Force v. U.S.
Fish & Wildlife Serv., 378 F.3d 1059, 1063 n.1 (9th Cir. 2004),
superseded on other grounds by Definition of Destruction or Adverse
Modification of Critical Habitat, 81 Fed. Reg. 7214 (Feb. 11, 2016)
(codified at 50 C.F.R. § 402.02 (2016)).
12 FRIENDS OF THE SANTA CLARA RIVER V. USACE
Ranch Project. As envisioned in the Specific Plan, the
Project would be a large-scale residential, commercial, and
industrial development in northwestern Los Angeles County
near the city of Santa Clarita. It would encompass
approximately 12,000 acres, including 5.5 linear miles of the
Santa Clara River and its tributaries. In compliance with the
California Environmental Quality Act (CEQA), Cal. Pub.
Res. Code §§ 21000–21189.57,5 the County held public
hearings and published an environmental impact report (EIR)
for the Specific Plan. The County ultimately approved the
Specific Plan, as revised in response to public comments, and
issued various project approvals, including zoning changes.
Environmental groups immediately brought actions in
state court to challenge the County’s approval of the Specific
Plan. In August 2000, the state court ordered the County to
vacate the project approval and conduct further
environmental analyses. See Ctr. for Biological Diversity v.
Dep’t of Fish & Wildlife, 224 Cal. App. 4th 1105, 1112
(2014), rev’d on other grounds, 62 Cal. 4th 204 (2015).
Following numerous additional hearings and further analyses,
the County adopted a revised Specific Plan for the Newhall
Ranch Project in May 2003. As revised, the Specific Plan
provided for the development of more than 21,000 residential
units and 5.5 million square feet of commercial, office, and
5
CEQA is similar to NEPA, and requires the preparation of an
“environmental impact report” (EIR) by the lead state agency. See Cal.
Pub. Res. Code § 21100; see also City of Los Angeles v. FAA, 138 F.3d
806, 807 (9th Cir. 1998). While both NEPA and CEQA impose
procedural requirements, see City of Carmel-By-The-Sea, 123 F.3d at
1150, CEQA also contains a “substantive mandate that public agencies
refrain from approving projects for which there are feasible alternatives or
mitigation measures,” Mountain Lion Found. v. Fish & Game Comm’n,
16 Cal. 4th 105, 134 (1997).
FRIENDS OF THE SANTA CLARA RIVER V. USACE 13
retail uses in a series of “interrelated villages.” Id. at 1113.
The state court approved the amended Specific Plan, and
dismissed the environmental plaintiffs pursuant to a
settlement agreement. Id.
In December 2003, Newhall Land applied to the Corps for
a Section 404 Permit that would allow the construction of the
infrastructure necessary for the development authorized by
the Specific Plan. Pursuant to its permitting regulations, the
Corps determined it was the lead agency for purposes of
NEPA compliance. See 33 C.F.R. § 325.2(a)(4), app. B
§ 325(8). After deciding to prepare an EIS, the Corps
coordinated with the California Department of Fish and
Wildlife (CDFW) to prepare a combined EIS/EIR.
The Corps published a notice of intent to prepare an
EIS/EIR in the Federal Register in 2004 and a second one in
2005, and held two public scoping meetings to determine the
scope of the issues to be addressed and to identify the
significant issues relating to the action. See 40 C.F.R.
§ 1501.7. The Corps circulated the Draft EIS/EIR in May
2009 for public comment. After receiving and considering
public comments on the Draft EIS/EIR, the Corps prepared a
Final EIS/EIR, which included the Corps’s Draft Section
404(b)(1) Guidelines Evaluation.
As part of its analysis of the Project’s water quality,
biological resources, and cumulative impacts, the Final
EIS/EIR discussed the Project’s water discharges into the
Santa Clara River and the potential impacts on the Southern
California steelhead, an endangered species. The Corps
determined that the Project area was not part of the
steelhead’s critical habitat, but considered the Project’s
potential to affect steelhead and its habitat downstream of the
14 FRIENDS OF THE SANTA CLARA RIVER V. USACE
Project area through increased stormwater discharges. While
the Santa Clara River generally contains water on a year-
round basis, a portion of the river between the Project area
and the downstream steelhead areas is dry most of the year,
so Project discharges would generally not impact steelhead.
(This dry reach of the river is informally known as the “Dry
Gap.”) In months when there is sufficient rainfall, however,
stormwater runoff may flow through the Dry Gap, and during
those periods Project discharge might reach steelhead
populations. The Corps nonetheless determined that these
changes would not have a substantial adverse effect on the
southern steelhead.
In reaching this conclusion, the Corps analyzed the
combination of wastewater and stormwater discharges from
the Project, and concluded that the Project’s total discharges
would have a dissolved-copper concentration of 9.0
micrograms-per-liter. This concentration is less than the
existing dissolved-copper concentration in the Santa Clara
River that occurs during storm events large enough to flow
through the Dry Gap. In addition, this concentration would
be less than the limit of 32 micrograms-per-liter of dissolved
copper that the California Toxics Rule (CTR), an EPA-
promulgated regulation establishing water quality standards
in California, set for the Santa Clara River.6 Accordingly, the
Corps concluded in the Final EIS/EIR that the Project would
6
The CTR “promulgates criteria for priority toxic pollutants in the
State of California for inland surface waters and enclosed bays and
estuaries,” including for aquatic life, 40 C.F.R. § 131.38(a), and is “legally
applicable in the State of California for inland surface waters, enclosed
bays and estuaries for all purposes and programs under the Clean Water
Act.” Water Quality Standards; Establishment of Numeric Criteria for
Priority Toxic Pollutants for the State of California, 65 Fed. Reg. 31,682,
31,682 (May 18, 2000) (codified at 40 C.F.R. pt. 131).
FRIENDS OF THE SANTA CLARA RIVER V. USACE 15
not affect the steelhead, and therefore it was not required to
consult with NMFS to discharge its responsibilities under the
ESA. See 16 U.S.C. § 1536(a)(3); 33 C.F.R. § 325.2(b)(5).
The Corps solicited additional comments that would be
considered “before the Corps . . . finalizes the Record of
Decision (ROD) for the Federal action associated with the
proposed project.” Among other letters, it received a
comment letter from Ventura Coastkeeper expressing its
concern that the Project’s discharges would contain dissolved
copper at a concentration that would harm Southern
California steelhead. In August 2010, the Corps also received
a letter from the EPA, offering comments on the Final
EIS/EIR and suggesting, among other things, that the Corps’s
practicability analysis for different alternatives should
consider the expected revenues from the Project. The EPA
subsequently sent a letter in August 2011, indicating that it
would not seek review of the Corps’s permit decision, citing
significant improvements to the Project design and additional
mitigation measures that had resulted from collaboration
among the EPA, the Corps, and Newhall Land.
On August 31, 2011, the Corps issued a ROD and a
provisional Section 404(b) permit to Newhall Land. The
ROD addressed the comments the Corps had received on the
Final EIS/EIR. In responding to Ventura Coastkeeper’s
comment letter, the Corps summarized the results of a
Supplemental Water Quality Analysis conducted by a third-
party consultant in May 2011, which showed that the
additional stormwater retention measures incorporated into
the Project would further reduce the dissolved-copper
concentration in the Project’s stormwater discharges.
16 FRIENDS OF THE SANTA CLARA RIVER V. USACE
The Corps also appended its Final Section 404(b)(1)
Guidelines Evaluation (Final Evaluation) to the ROD. The
Final Evaluation stated that it was not a stand-alone
document, but relied heavily on the information provided in
the Draft EIS/EIR and the Final EIS/EIR. Like the Final
EIS/EIR, the Final Evaluation concluded that the Project
would not affect the steelhead and therefore consultation with
NMFS pursuant to the ESA was not required.
The Final Evaluation defined the “overall project
purpose” for purposes of analyzing the practicability of
alternatives as follows:
[T]he development of a master planned
community with interrelated villages in the
vicinity of the Santa Clarita Valley in
northwestern Los Angeles County that
achieves the basic objectives of the Specific
Plan by providing a broad range of land uses
of approximately the same size and
proportions as approved in the Specific Plan,
including residential, mixed-use, commercial
and industrial uses, public services (schools,
parks, etc.), and a water reclamation plant.
The Corps determined that the overall project purpose also
included 15 of the 37 basic objectives of the Specific Plan.
The Corps stated that the “basic project purpose,” which is
used to determine whether the project is water dependent, was
“to provide housing and commercial/industrial/mixed-use
development.” Because the basic project purpose was not
water dependent, the Corps determined that the rebuttable
presumption that practicable alternatives were available
applied, but was rebutted because the Corps had analyzed
FRIENDS OF THE SANTA CLARA RIVER V. USACE 17
23 alternative sites and concluded that they were
impracticable.
The Final Evaluation considered the eight on-site
alternatives described and analyzed in the Final EIS/EIR, in
order to determine which one was the “least environmentally
damaging practicable alternative.” Bering Strait Citizens,
524 F.3d at 955. These alternatives included a no-build
alternative (Alternative 1), Newhall Land’s preferred
alternative (Alternative 2), and six other alternatives
(Alternatives 3 through 7 and Modified Alternative 3), each
with varying project sizes and resulting impacts on waters of
the United States. Alternative 2, Newhall Land’s alternative,
proposed developing 2,864.2 acres, which would include
20,885 residential units7 and 5.5 million square feet of
commercial space. It would have permanently filled 93.3
acres of waters of the United States, including 20.5 acres of
wetlands, and would have temporarily filled 33.3 acres of
waters of the United States, including 11.2 acres of wetlands.
The Corps selected Modified Alternative 3 as the least
environmentally damaging practicable alternative. Compared
to Newhall Land’s preferred alternative (Alternative 2),
Modified Alternative 3 reduced permanent impacts to waters
of the United States by 29 percent and temporary impacts by
3 percent. It also reduced the acreage that could be developed
for residential units by 10 percent and likewise reduced the
7
The Specific Plan allowed an additional 423 residential “second
units” as part of the Project, see Ctr. for Biological Diversity, 224 Cal.
App. 4th at 1113, but the Corps did not consider those units separately in
its analysis because the Corps determined that they would not impact the
Project’s development footprint or secondary environmental effects.
SCOPE does not challenge this decision.
18 FRIENDS OF THE SANTA CLARA RIVER V. USACE
developable commercial acreage by 14 percent, increasing the
Project’s cost per developable acre by 5.7 percent. The Corps
concluded that further modifications to the Project would be
impracticably expensive, noting that Modified Alternative 3
would be more costly than the most expensive comparable
development project in the region. Accordingly, the ROD
adopted Modified Alternative 3 as the basis for the Section
404 permit.
In March 2014, SCOPE sued the EPA, the Corps, and
their respective agency officials in district court, alleging
violations of the CWA, NEPA, and the NHPA.8 Newhall
Land successfully moved to intervene as a defendant. In
January 2015, SCOPE amended its complaint to assert an
additional claim under the ESA. On cross-motions for
summary judgment, the district court granted summary
judgment in favor of the Corps and Newhall Land on June 30,
2015, the judgment that SCOPE now appeals.
III
Before reaching the merits of SCOPE’s claims, we
consider whether the plaintiffs have standing to bring their
NEPA and ESA claims. After this case was argued on appeal,
the Corps and Newhall Land settled with four of the six
plaintiffs, and stipulated to voluntary dismissal of those
plaintiffs. In supplemental briefing on the effect of these
dismissals, the Corps and Newhall Land argue that while both
of the remaining plaintiffs, SCOPE and Friends, have
8
The district court dismissed the EPA and its officials as defendants
for lack of subject matter jurisdiction. The propriety of this dismissal is
not before us on appeal. As explained above, supra 5 n.2, we grant the
Corps and Newhall Land’s unopposed motion to dismiss the NHPA claim.
FRIENDS OF THE SANTA CLARA RIVER V. USACE 19
standing to pursue their CWA claim, they lack standing to
pursue their NEPA and ESA claims. We may consider the
jurisdictional question of Article III standing for the first time
on appeal. See Wash. Envtl. Council v. Bellon, 732 F.3d
1131, 1139 (9th Cir. 2013). Because “[t]he need to satisfy
[Article III standing] requirements persists throughout the life
of the lawsuit,” if circumstances change such that the
plaintiffs before us no longer possess standing, we must
dismiss the affected claims. Wittman v. Personhuballah,
136 S. Ct. 1732, 1736–37 (2016). We conclude, however,
that SCOPE and Friends possess standing for their NEPA and
ESA claims.
A
“[A] plaintiff must demonstrate standing for each claim
he seeks to press and for each form of relief that is sought.”
Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650
(2017) (quoting Davis v. Fed. Election Comm’n, 554 U.S.
724, 734 (2008)). When there are multiple plaintiffs, “[a]t
least one plaintiff must have standing to seek each form of
relief requested in the complaint.” Id. at 1651. In order for
an organizational plaintiff such as SCOPE or Friends to have
standing, it must demonstrate that at least one of its
“members would otherwise have standing to sue in [the
member’s] own right, the interests at stake are germane to the
organization’s purpose, and neither the claim asserted nor the
relief requested requires the participation of individual
members in the lawsuit.” Wash. Envtl. Council, 732 F.3d at
1139 (quoting Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 181 (2000)).
A plaintiff seeking relief in federal court must establish
the three elements that constitute the “irreducible
20 FRIENDS OF THE SANTA CLARA RIVER V. USACE
constitutional minimum” of Article III standing, Lujan v.
Defs. of Wildlife, 504 U.S. 555, 560 (1992), namely, that the
plaintiff has “(1) suffered an injury in fact, (2) that is fairly
traceable to the challenged conduct of the defendant, and
(3) that is likely to be redressed by a favorable judicial
decision,” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547
(2016).
This standard “is softened when a plaintiff asserts a
violation of a procedural right” conferred by a federal statute,
San Luis & Delta-Mendota Water Auth. v. Haugrud, 848 F.3d
1216, 1232 (9th Cir. 2017) (internal quotation marks and
citation omitted), because “the causation and redressability
requirements [for standing] are relaxed,” WildEarth
Guardians v. U.S. Dep’t of Agric., 795 F.3d 1148, 1154 (9th
Cir. 2015) (citation omitted). In order to establish an injury
in fact in the context of a claimed procedural error in an
agency’s decisionmaking process, a plaintiff must show that
“(1) the [agency] violated certain procedural rules; (2) these
rules protect [a plaintiff’s] concrete interests; and (3) it is
reasonably probable that the challenged action will threaten
their concrete interests.” Haugrud, 848 F.3d at 1232
(alterations in original) (quoting Nuclear Info. & Res. Serv. v.
Nuclear Regulatory Comm’n, 457 F.3d 941, 949 (9th Cir.
2006)).
To establish causation and redressability, the plaintiff
must show that “the relief requested—that the agency follow
the correct procedures—may influence the agency’s ultimate
decision.” WildEarth Guardians, 795 F.3d at 1156 (quoting
Salmon Spawning & Recovery All. v. Gutierrez, 545 F.3d
1220, 1226 (9th Cir. 2008)). In the NEPA context, plaintiffs
may demonstrate redressability with a showing that the
agency’s decision could “could be influenced by the
FRIENDS OF THE SANTA CLARA RIVER V. USACE 21
environmental considerations that NEPA requires an agency
to study.” Laub v. U.S. Dep’t of Interior, 342 F.3d 1080,
1087 (9th Cir. 2003). A plaintiff does not need to show that
the correction of the alleged procedural error would lead to a
decision more favorable to plaintiffs’ interests. See id. (“In
order to establish redressability, plaintiffs asserting the
inadequacy of an agency’s EIS . . . need not show that further
analysis by the government would result in a different
conclusion.”); Cantrell v. City of Long Beach, 241 F.3d 674,
682 (9th Cir. 2001) (“[P]laintiffs asserting procedural
standing need not demonstrate that the ultimate outcome
following proper procedures will benefit them.”). Similarly,
plaintiffs asserting violations of the ESA’s consultation
requirements are “not required to establish what a Section 7
consultation would reveal, or what standards would be set.”
Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv., 789 F.3d
1075, 1082 (9th Cir. 2015).
While “[t]his is not a high bar to meet . . . . the
redress[a]bility requirement is not toothless in procedural
injury cases.” Salmon Spawning, 545 F.3d at 1227.
Procedural rights “can loosen . . . the redressability prong,”
not eliminate it. Summers v. Earth Island Inst., 555 U.S. 488,
497 (2009). For instance, we have found redressability
lacking where an agency’s correction of a procedural error
could not lead to a decision more favorable to plaintiffs, as
where a project had already been completed, see Rattlesnake
Coal. v. EPA, 509 F.3d 1095, 1102–03 (9th Cir. 2007), where
a different agency had already made the same decision, see
Nuclear Info. & Res. Serv., 457 F.3d at 955, or where the
agency could not reverse the United States’ entrance into an
international treaty, see Salmon Spawning, 545 F.3d at 1227.
22 FRIENDS OF THE SANTA CLARA RIVER V. USACE
In this case, SCOPE and Friends assert procedural
violations of NEPA and ESA. See WildEarth Guardians,
795 F.3d at 1154 (noting that a claim “alleging a NEPA
violation” is procedural); Nat. Res. Def. Council v. Jewell,
749 F.3d 776, 783 (9th Cir. 2014) (en banc) (“[A]lleged
violations of Section 7(a)(2)’s consultation requirement
constitute a procedural injury for standing purposes.”).
B
Newhall Land argues that the plaintiffs have failed to
show standing even under our relaxed standards. According
to Newhall Land, the plaintiffs have not shown that the
Corps’s alleged procedural deficiencies under NEPA and
ESA affected their concrete interests, because plaintiffs allege
only that the Corps conducted an inadequate analysis of the
Project’s impacts on Southern California steelhead under
NEPA, and that the Corps failed to engage in consultation
with the NMFS regarding those impacts as required under the
ESA.9 But, Newhall Land argues, the plaintiffs’ interests are
limited to recreation and natural resources within the Project
area, where steelhead are not present.
This argument fails, however, because under our relaxed
standard, the plaintiffs need show only that “the challenged
[agency] action will threaten their concrete interests,” Ctr. for
Food Safety v. Vilsack, 636 F.3d 1166, 1171 (9th Cir. 2011)
(emphasis added), not that the alleged procedural deficiency
will threaten such interests. Here the challenged agency
action is the Corps’s issuance of the Section 404 permit, and
9
Before the district court, SCOPE also challenged the Final
EIS/EIR’s traffic and cultural resource analysis, but does not do so on
appeal.
FRIENDS OF THE SANTA CLARA RIVER V. USACE 23
so the plaintiffs need show only that the issuance of the
permit will affect their interest in recreation and aesthetics in
the Project area; they do not need to show that the alleged
inadequacies in the Corps’s analysis of the Project’s impact
on steelhead will have such an effect. See, e.g., id. at 1172;
Nuclear Info. & Res. Serv., 457 F.3d at 952; City of Sausalito
v. O’Neill, 386 F.3d 1186, 1197 (9th Cir. 2004). Two other
circuits have likewise rejected Newhall Land’s argument that
the plaintiffs’ injury must be tied to the particular procedural
deficiency alleged. See WildEarth Guardians v. U.S. Bureau
of Land Mgmt., 870 F.3d 1222, 1231 (10th Cir. 2017);
WildEarth Guardians v. Jewell, 738 F.3d 298, 307 (D.C. Cir.
2013) (“The Appellants’ aesthetic injury follows from an
inadequate FEIS whether or not the inadequacy concerns the
same environmental issue that causes their injury.”). SCOPE
and Friends have concrete interests at stake, see Laidlaw,
528 U.S. at 183, and it is reasonably probable that those
interests will be threatened by the “challenged action,” Ctr.
for Food Safety, 636 F.3d at 1171, the issuance of the Section
404 permit.
We also reject the argument that plaintiffs failed to show
causation and redressability. Contrary to Newhall Land’s
argument, SCOPE and Friends do not need to show that the
Corps’s correction of the alleged procedural error would lead
to a favorable decision such as a decision not to issue a
Section 404 permit. See Laub, 342 F.3d at 1087. Rather,
plaintiffs need only show a reasonable probability that the
Corps’ decision “could be influenced by the environmental
considerations that NEPA requires an agency to study.” Id.
Here, such a reasonable probability exists. Plaintiffs
suggest that if the Corps conducted further analysis, it would
become aware of more significant impacts to steelhead.
24 FRIENDS OF THE SANTA CLARA RIVER V. USACE
Because the Project’s stormwater discharge results from
paving over surfaces that would otherwise absorb rainfall, it
is plausible that mitigating those impacts would result in
alterations or reductions to the Project’s footprint. Moreover,
if the analysis revealed that the Project would “affect”
steelhead, 50 C.F.R. § 402.14(a), the Corps would then have
to engage in ESA consultation, possibly leading to further
Project modifications. See 16 U.S.C. § 1536(b)(3).10
Accordingly, we conclude that Plaintiffs have standing for
their NEPA and ESA claims.11
IV
Because this case involves review of a final agency
determination under the Administrative Procedure Act,
5 U.S.C. § 706, the district court limited its review to the
administrative record, and resolved it on summary judgment.
10
Indeed, given that the Corps concluded that requiring the Project to
incur the cost of further mitigation would make it impracticably
expensive, it is conceivable that significant new modifications or delay
would block the Project entirely. See generally, Amanda Covarrubias &
Catherine Saillant, Longtime Foes of Ahmanson Project Rejoice, Los
Angeles Times (Sept. 24, 2003), http://articles.latimes.com/2003/sep/24
/local/me-ahmanson24/.
11
SCOPE and Friends also satisfy the other organizational standing
requirements. The protection of the Project area’s natural resources is
“germane to the organization’s purpose,” and “neither the claim asserted
nor the relief requested requires the participation of individual members
in the lawsuit.” Wash. Envtl. Council, 732 F.3d at 1139 (quoting Laidlaw,
528 U.S. at 181). Moreover, SCOPE and Friends satisfy prudential
standing requirements, as “[i]t is well settled that the zone of interests
protected by NEPA is environmental,” Nuclear Info. & Res. Serv.,
457 F.3d at 950, and the zone-of-interests test does not apply to their claim
under the ESA’s citizen suit provision, see Bennett v. Spear, 520 U.S. 154,
164 (1997); 16 U.S.C. § 1540(g).
FRIENDS OF THE SANTA CLARA RIVER V. USACE 25
We review a grant of summary judgment de novo, and must
determine whether the Corps’s action was arbitrary or
capricious under the APA.12 See Gifford Pinchot Task Force
v. U.S. Fish & Wildlife Serv., 378 F.3d 1059, 1065 (9th Cir.
2004) (citing 5 U.S.C. § 706(2)(A)), superseded on other
grounds by Definition of Destruction or Adverse
Modification of Critical Habitat, 81 Fed. Reg. 7214.
“Review under the arbitrary and capricious standard is
deferential . . . .” Nat’l Ass’n of Home Builders v. Defs. of
Wildlife, 551 U.S. 644, 658 (2007). “[O]ur proper role is
simply to ensure that the [agency] made no ‘clear error of
judgment’ that would render its action ‘arbitrary and
capricious,’” Lands Council v. McNair, 537 F.3d 981, 993
(9th Cir. 2008) (en banc), overruled on other grounds by
Winter v. Nat. Res. Def. Council, 555 U.S. 7 (2008), and we
require only “‘a rational connection between facts found and
conclusions made’ by the defendant agencies.” Finley,
774 F.3d at 617 (quoting League of Wilderness Defs./Blue
Mountains Biodiversity Project v. Connaughton, 752 F.3d
755, 760 (9th Cir. 2014)). Accordingly, “we will not vacate
an agency’s decision unless [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 for 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.’” Nat’l Ass’n of Home Builders, 551 U.S.
12
Even though SCOPE brings its ESA claim under the ESA’s citizen
suit provision, 16 U.S.C. § 1540(g), “the APA’s ‘arbitrary and capricious’
standard applies; and, an agency’s ‘no effect’ determination under the
ESA must be upheld unless arbitrary and capricious.” W. Watersheds
Project v. Kraayenbrink, 632 F.3d 472, 481 (9th Cir. 2011).
26 FRIENDS OF THE SANTA CLARA RIVER V. USACE
at 658 (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).
“This approach . . . requires us to defer to an agency’s
determination in an area involving a ‘high level of technical
expertise.’” Lands Council, 537 F.3d at 993 (citation
omitted). That is, “[w]e are to be ‘most deferential’ when the
agency is ‘making predictions, within its [area of] special
expertise, at the frontiers of science.’” Id. (alteration in
original) (quoting Forest Guardians v. U.S. Forest Serv.,
329 F.3d 1089, 1099 (9th Cir. 2003)). We cannot “substitute
our judgment for the agency’s in determining which scientific
data to credit, so long as the conclusion is supported by
adequate and reliable data.” Finley, 774 F.3d at 620.
V
A
We first consider SCOPE’s CWA claim. SCOPE argues
that the Corps failed to select the least environmentally
damaging practicable alternative in issuing a Section 404(b)
permit. SCOPE claims that in determining the overall project
purpose, the Corps incorporated Newhall Land’s project
objectives and the County’s Specific Plan objectives and
therefore relied on an overly specific purpose that unduly
narrowed the range of available alternatives.
We disagree. As explained above, the Corps not only
may, but must, consider Newhall Land’s project objectives,
provided that those project objectives are not so narrowly
defined as to preclude alternatives, see Jones, 741 F.3d at
1002; Sylvester, 882 F.2d at 409, and must also consider the
Specific Plan objectives, 33 C.F.R. §§ 320.4(j)(2),
FRIENDS OF THE SANTA CLARA RIVER V. USACE 27
336.1(c)(11)(ii). Therefore, the Corps was not arbitrary or
capricious in rejecting certain alternatives on the ground that
they failed to meet Newhall Land’s objectives or the Specific
Plan objectives.
The Corps could reasonably reject Alternatives 7 and 8
because their substantial reductions in the extent of
developable land (44 percent and 25 percent, respectively)
would prevent the Project from meeting elements of the
overall project purpose and their substantial increase in costs
(51 percent and 28 percent, respectively) would render them
impracticable. Nor was the Corps arbitrary or capricious in
rejecting Alternative 6 on the ground that it reduced
developable space in a manner that would preclude village-
style development, its 13 percent increase in cost would make
it impracticable, and other practicable alternatives would be
less environmentally damaging.13
SCOPE next attacks the manner in which the Corps
assessed the cost of the alternatives under consideration.
First, SCOPE contends that the Corps failed to select the least
environmentally damaging practicable alternative because
further avoidance and minimization of impacts to waters of
the United States were theoretically possible, and the Corps
erred in considering the financial impact of further avoidance.
We disagree. The regulations require the Corps to take into
13
SCOPE argues that the Corps should have followed its 1989 intra-
agency review decision in the Hartz Mountain project in New Jersey,
where the Corps acknowledged that “federal concerns over the
environment, health and/or safety will often result in decisions that are
inconsistent with local land use approvals.” However, the Corps’s 1989
decision pertained to a different project in an entirely different context.
Nothing in that decision shows that the Corps erred in its consideration of
the Specific Plan objectives here.
28 FRIENDS OF THE SANTA CLARA RIVER V. USACE
consideration the cost of an alternative in making the
determination that there is no practicable alternative. See
40 C.F.R. § 230.10(a)(2) (“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 overall project purposes.”). The Corps followed this
regulatory requirement in determining that it would be
impracticably expensive to adopt an alternative more
restrictive than the selected alternative, Modified Alternative
3, to avoid further impacts to waters of the United States.
The Corps’s determination was reasonably based on its
findings that Modified Alternative 3 would be more
expensive than any previous comparable development project
in southern California, and would also exceed the average and
median costs for such projects by at least 56 percent. The
alternative was 5.7 percent more costly than Newhall Land’s
preferred alternative, and significantly shrank the Project’s
footprint. The Corps’s decision that Modified Alternative 3
was at the outer limit of cost practicability was thus based on
a “rational connection between facts found and the
conclusion” made and we defer to its determination under
40 C.F.R. § 230.10(a)(2). Butte Envtl. Council, 620 F.3d at
947; see also Bering Strait Citizens, 524 F.3d at 948.
SCOPE further criticizes three different aspects of the
Corps’s cost methodology. It claims that: (1) the Corps
should have considered costs on a per-residential unit or per-
commercial floor space basis rather than a per-acre basis;
(2) the Corps was required to consider the Project’s revenues;
and (3) the Corps should have excluded land acquisition costs
because those costs are sunk costs. We disagree. The
Section 404(b) Guidelines do not require the Corps to use any
particular metric for analyzing costs; rather, they merely
instruct the Corps to assess alternatives in light of their “cost,
FRIENDS OF THE SANTA CLARA RIVER V. USACE 29
existing technology, and logistics,” 40 C.F.R. § 230.10(a)(2).
Therefore, so long as the Corps’s evaluation of costs is
reasonable, we must defer to it. See Nat’l Ass’n of Home
Builders, 551 U.S. at 658. Here, the Corps adopted a
reasonable methodology for calculating and evaluating costs,
and therefore it is entitled to deference.
The Corps’s evaluation of costs on a per-acre basis was
reasonable. As the Corps explained, Newhall Land intended
to sell developable land by the acre, rather than developing
the land itself and selling units or floor space. Accordingly,
the Corps could reasonably conclude that determining
Newhall Land’s costs per acre made more sense than
speculating about the type and density of units that might
ultimately be built on that land. The Corps also noted that the
per-acre cost metric was “more widely used in the industry.”
The Corps also reasonably declined to consider revenues
as part of an alternative’s costs. The regulations direct the
Corps to assess practicability based on “cost, existing
technology, and logistics.” 40 C.F.R. § 230.10(a)(2). “Cost”
means an “expenditure or outlay,” see Webster’s Third New
Intl. Dictionary 515 (2002), and does not include “revenues,”
which are items of income, see id. at 1942.14 Although
14
We additionally reject SCOPE’s suggestion that the EPA has
authoritatively interpreted “cost” in 40 C.F.R. § 230.10(a)(2) to include
revenues. Neither of the authorities on which SCOPE relies, a 2008
comment made by the EPA in response to a Section 404 permit sought by
the Potash Corporation of Saskatchewan, and the EPA’s comment in
response to the Draft EIS/EIR in this case, purports to be an authoritative
interpretation of the Section 404(b) Guidelines. Of course, even if those
documents did purport to offer an authoritative interpretation, such an
interpretation could not supersede the unambiguous plain language of
30 FRIENDS OF THE SANTA CLARA RIVER V. USACE
revenues are not part of “costs,” the Corps nevertheless stated
that it took revenues into account “by looking at how each
alternative affects developable acreage, which is the source
of revenue for the project.” Given the close relationship
between the developable acreage resulting from the Project
and revenues to Newhall Land, the Corps did not fail to
consider an important aspect of the problem.15
Finally, the Corps did not err by including the acquisition
costs of the property proposed for the Project site. The
Section 404(b) Guidelines do not require a specified
treatment of land acquisition costs, so we defer to the Corps’s
judgment unless its decision was arbitrary or capricious. See
Jones, 741 F.3d at 996. Here, the Corps reasonably included
the acquisition costs as part of its determination of whether an
alternative is practicable. Because Newhall Land is investing
(or contributing) its valuable site to the Project, the costs of
the Project include the value of the property. Accordingly,
the exclusion of the value of the property would have led to
inaccurate comparisons between the costs for the Newhall
Ranch project and the costs for comparable projects, which
would require property acquisition. Indeed, the Corps would
have arguably “entirely failed to consider an important aspect
of the problem” had the Corps excluded land costs in its
practicability analysis rather than included it. Nat’l Ass’n of
40 C.F.R. § 230.10(a)(2). See Siskiyou Reg’l Educ. Project v. U.S. Forest
Serv., 565 F.3d 545, 555 (9th Cir. 2009).
15
SCOPE’s characterization of the land cost to Newhall Land as a
“sunk cost” is similarly incorrect. A sunk cost is “[a] cost that has already
been incurred and that cannot be recovered.” See Black’s Law Dictionary
398 (9th ed. 2009) (emphasis added). Newhall Land could recover the
costs of acquiring the Project site (however long ago those costs were
incurred) by selling the site.
FRIENDS OF THE SANTA CLARA RIVER V. USACE 31
Home Builders, 551 U.S. at 658 (quoting Motor Vehicle Mfrs.
Ass’n, 463 U.S. at 43).
We therefore find no merit in SCOPE’s CWA challenges
to the Corps’s permit issuance.
B
We next turn to SCOPE’s claim that the Corps violated
the ESA. SCOPE argues that the Corps erred in determining
that the Project “will have no effect” on Southern California
steelhead in the Santa Clara River, and so was required to
consult with NMFS on the Project’s potential impact. See
Pac. Rivers Council, 30 F.3d at 1054 n.8; 50 C.F.R.
§ 402.14(a). SCOPE argues that the Project may affect
steelhead because, during storm events where the volume of
the Project’s discharges is sufficient to flow into the reach of
the Santa Clara River downstream of the Dry Gap, those
discharges will contain concentrations of dissolved copper
that cause sublethal impacts to juvenile steelhead smolt.
We disagree. The data and analysis set forth in the Draft
EIS/EIR and Final EIS/EIR consistently establish that
concentrations of dissolved copper in discharges from the
Project would be within the background range already
observed in the Santa Clara River and well below the CTR’s
dissolved-copper criterion for the Santa Clara River. During
storm events large enough to cause discharges from the
Project to flow into the reach of the Santa Clara River
downstream of the Dry Gap, the background concentration of
dissolved copper in the relevant portion of the Santa Clara
River averages 9.9 micrograms-per-liter. The Final EIS/EIR
estimated that the combined discharge from the Project’s
stormwater runoff and its wastewater treatment plant would
32 FRIENDS OF THE SANTA CLARA RIVER V. USACE
contain only 9.0 micrograms of dissolved copper per liter,
which would be lower than that background concentration.16
The 2011 Supplemental Water Quality Analysis (incorporated
by reference into the ROD) found that the additional
stormwater retention measures required by the Corps would
reduce the dissolved-copper concentration of the Project’s
stormwater discharges from the 8.3 micrograms-per-liter
referenced in the Final EIS, to 6.5 micrograms-per-liter, again
well below background. Given this information, the Corps
reasonably concluded that the Project’s discharges of
dissolved copper would not affect steelhead downstream of
Dry Gap. The Corps also noted that because the Project
discharges would flow into the Santa Clara River downstream
of the Dry Gap only when water flows were already high, the
Project discharges would constitute less than one percent of
the River’s flow and “water quality in the Santa Clara River
would not be significantly affected by the discharges.”
Because the Corps’s determination that the Project would not
affect steelhead was not arbitrary or capricious, we reject
SCOPE’s ESA claim. See Kraayenbrink, 632 F.3d at 481.
SCOPE’s argument to the contrary hinges on its
contention that the Corps erred by failing to consider a 2007
Technical Memorandum published by NMFS, An Overview
of Sensory Effects on Juvenile Salmonids Exposed to
Dissolved Copper (the “NMFS Memorandum”) which
Ventura Coastkeeper submitted with its comments on the
Final EIS/EIR. According to SCOPE, the NMFS
16
SCOPE argues in its reply brief that the Corps erred by relying in
part on average concentrations, but the district court rejected this
argument, and SCOPE abandoned it on appeal by failing to raise it in its
opening brief, see TAAG Linhas Aereas de Angola v. Transamerica
Airlines, Inc., 915 F.2d 1351, 1353 n.1 (9th Cir. 1990).
FRIENDS OF THE SANTA CLARA RIVER V. USACE 33
Memorandum establishes that the levels of dissolved copper
in discharges from the Project will have “sublethal impacts”
on steelhead smolt, which are not adequately accounted for in
the CTR criteria. SCOPE argues that the Corps failed to use
“the best scientific and commercial data available,” 16 U.S.C.
§ 1536(a)(2), because it did not adequately consider the
thresholds set out in the NMFS Memorandum.
We reject this argument. As a threshold matter, we may
not substitute our scientific judgment for that of the agency.
“The determination of what constitutes the ‘best scientific
data available’ belongs to the agency’s ‘special expertise[’]”
and warrants substantial deference. San Luis & Delta-
Mendota Water Auth. v. Jewell, 747 F.3d 581, 602 (9th Cir.
2014) (emphasis omitted) (quoting Baltimore Gas & Elec.
Co. v. Nat. Res. Def. Council, 462 U.S. 87, 103 (1983)).
Accordingly, “[t]he best available data requirement ‘merely
prohibits [the Corps] from disregarding available scientific
evidence that is in some way better than the evidence [it]
relies on.’” Kern Cty. Farm Bureau v. Allen, 450 F.3d 1072,
1080 (9th Cir. 2006) (third alteration in original) (quoting Sw.
Ctr. for Biological Diversity v. Babbitt, 215 F.3d 58, 60 (D.C.
Cir. 2000)). In this case, the Corps could reasonably
conclude that the NMFS Memorandum does not contain the
best scientific data available for the Project. The NMFS
Memorandum summarizes and analyzes laboratory studies
regarding the effects of concentrations of copper on coho
salmon in municipal water. It did not consider steelhead
populations or the effect of copper concentrations in natural
34 FRIENDS OF THE SANTA CLARA RIVER V. USACE
conditions. Moreover, it did not consider any data specific to
the Project or the Santa Clara River.17
Nor was it arbitrary or capricious for the Corps to
consider the CTR criteria as “a useful benchmark” to assess
the possible water-quality impacts of the Project’s discharges.
The Corps could reasonably consider the CTR criteria as one
source of information, given that the EPA promulgated the
CTR to establish water-quality criteria “legally applicable in
the State of California for inland surface waters, enclosed
bays and estuaries for all purposes and programs under the
Clean Water Act.” 65 Fed. Reg. at 31,682; see also 40 C.F.R.
§ 131.38. As applied here, the CTR provides “an estimate of
the highest concentration of a substance in water which does
not present a significant risk to the aquatic organisms in the
water and their uses,” 65 Fed. Reg. at 31,689, and which
California and the EPA must consider in implementing
various water quality programs under the CWA, id. at
31,683–84.18 Because the effects of dissolved copper and
other dissolved metals depend on water “hardness” and other
factors that vary among bodies of water, the CTR provides a
method for calculating a site-specific dissolved-copper
criterion. Id. at 31,690, 31,692; see also 40 C.F.R. § 131.38,
gen. note 3 to table in paragraph (b)(1). The Corps could thus
17
Although SCOPE faults the Corps for not expressly rejecting the
use of the NMFS Memorandum, the Corps responded to the letter
attaching the Memorandum, reiterated its reasoning, and explained that it
had concluded that the Project would not affect steelhead. We can thus
reasonably discern that the Corps concluded that the NMFS Memorandum
was inapplicable. See Alaska Dep’t of Envtl. Conservation v. EPA,
540 U.S. 461, 497 (2004).
18
SCOPE does not point to any public comment disputing the use of
the CTR.
FRIENDS OF THE SANTA CLARA RIVER V. USACE 35
reasonably consider the CTR as part of its analysis.
Moreover, because the Corps considered other sources of
data, including project-specific modeling, in determining that
issuance of the Section 404 Permit would have no effect on
downstream steelhead, SCOPE’s arguments regarding
limitations in the applicability of the CTR are not material.19
SCOPE next argues that because the Corps published its
determination that the Project would not affect steelhead in its
June 2010 Final EIS/EIR, it could not rely on the
Supplemental Analysis, which had been issued almost a year
later in May 2011, to support its determination. We reject
this argument, because the Corps did not need to rely on the
Supplemental Analysis in order to reach its conclusion. The
Final EIS/EIR explains the Corps’s determination that the
Project’s stormwater and wastewater discharges would not
affect steelhead because the dissolved-copper concentrations
of the combined discharge would be within background
ranges and lower than the average concentration during large
storm events, as well as substantially below the CTR’s
threshold. This conclusion was not arbitrary or capricious.
The Supplemental Analysis merely confirmed the Corps’s
initial conclusion that there would be no effect because it
established that the Project’s stormwater retention measures
would further lower the dissolved-copper concentrations in
the Project’s runoff. Because the Final EIS/EIR’s analysis of
combined stormwater and wastewater discharges was
19
Although SCOPE contends that the CTR criteria were inapplicable
because “unacceptable adverse effects” as defined in the CTR do not
include the kind of sublethal impacts considered in the NMFS
Memorandum, the Corps could reasonably conclude that the CTR’s site-
specific calculations were more applicable to the steelhead population at
issue in the Santa Clara River.
36 FRIENDS OF THE SANTA CLARA RIVER V. USACE
sufficient to support the Corps’s determination that Southern
California steelhead would not be affected by the Project, we
also reject SCOPE’s argument that the Corps erred by relying
on the Supplemental Analysis, which did not include the
effects of wastewater discharges.20
We therefore conclude that the Corps reasonably
determined that the Project would have no effect on
steelhead, and in the absence of a consultation request from
NMFS, see 50 C.F.R. § 402.14(a), the Corps’s decision not to
consult with NMFS was not arbitrary and capricious.21
C
In its NEPA claim, SCOPE argues that the Corps’s Final
EIS/EIR provided an inadequate analysis of the cumulative
impacts of the Project’s dissolved-copper discharges on
steelhead in the reach of the Santa Clara River downstream of
20
Similarly, because the Supplemental Analysis was not necessary to
support the Corps’s determination that the Project would not affect the
steelhead, we do not consider SCOPE’s argument that the Supplemental
Analysis’s projections were substantively flawed.
21
NMFS did not request formal consultation with the Corps regarding
the Southern California steelhead. Rather, NMFS responded to an inquiry
from the Corps regarding the status of Southern California steelhead and
its critical habitats, informing the Corps “the Santa Clara River basin
upstream from its confluence with Piru Creek . . . is not currently
considered by NMFS to be part of the critical habitat designation” for
Southern California steelhead and stating that “[f]or those projects the
Corps determines will have no effect, there is no need to seek concurrence
from, or consult further with, NMFS.” SCOPE emphasizes that the Corps
received numerous comments stating it had an obligation to consult with
NMFS, but such requests made to the Corps do not trigger the Corps’s
obligation to consult under the ESA. See 50 C.F.R. § 402.14(a).
FRIENDS OF THE SANTA CLARA RIVER V. USACE 37
the Dry Gap. Because SCOPE raises essentially the same
arguments that it advanced under its ESA claim, they fail for
largely the same reasons.
First, SCOPE again contends that the NMFS
Memorandum demonstrates that the Project’s dissolved-
copper discharges may cause sublethal impacts to steelhead,
and the Final EIS/EIR failed to consider those impacts. As
explained above, the Corps did not err in declining to rely on
the NMFS Memorandum. See Or. Nat. Res. Council Fund v.
Goodman, 505 F.3d 884, 897 (9th Cir. 2007) (“NEPA does
not require the reviewing court to ‘decide whether an [EIS] is
based on the best scientific methodology available.’”)
(quoting Or. Envtl. Council v. Kunzman, 817 F.2d 484, 496
(9th Cir. 1987) (alteration in original)). Furthermore, because
the Corps reasonably determined that the Project was not
likely to affect steelhead populations in the Santa Clara River,
it was also not arbitrary or capricious to conclude that the
Project would not result in significant cumulative water
quality impacts to steelhead. See Sw. Ctr. for Biological
Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1448 (9th Cir.
1996) (explaining that an agency’s “no effect” determination
under the ESA supported its conclusion that the action would
“not individually or cumulatively have a significant effect on
the human environment” under NEPA) (quoting 40 C.F.R.
§ 1508.4). For this reason, the Final EIS/EIR provided a
sufficient discussion “to show why more study is not
warranted,” 40 C.F.R. § 1502.2(b), and therefore satisfied
NEPA’s requirements. See Protect Our Communities Found.
v. Jewell, 825 F.3d 571, 583 (9th Cir. 2016).
Second, SCOPE challenges the Corps’s reference to the
May 2011 Supplemental Analysis in its response to
comments on the Final EIS/EIR. SCOPE argues that the
38 FRIENDS OF THE SANTA CLARA RIVER V. USACE
Corps was required to recirculate a revised EIS/EIR
containing the Supplemental Analysis or alternatively,
include the full document as an appendix. As explained
above, the Supplemental Analysis merely confirmed the
Corps’s conclusion, but was not its basis; accordingly, it did
not contain “significant new information” that would require
the Corps to recirculate the EIS/EIR for further comment.
California ex rel. Imperial Cty. Air Pollution Control Dist. v.
U.S. Dep’t of the Interior, 767 F.3d 781, 794 (9th Cir. 2014);
see also 40 C.F.R. § 1502.9(c)(1)(ii). Moreover, contrary to
SCOPE’s assertions, the Corps did not violate NEPA by
incorporating the Supplemental Analysis by reference and
informing the public that it was available upon request, rather
than providing the document in an appendix. See California
ex rel. Imperial Cty. Air Pollution Control Dist., 767 F.3d at
794–95; 40 C.F.R. § 1502.21.
Because the Final EIS/EIR provided an adequate analysis
of the cumulative impacts of the Project’s dissolved copper
discharges, SCOPE’s NEPA claim also fails.
VI
We conclude that the Corps complied with its obligations
under the CWA, having properly considered practicability as
required under the Section 404(b) Guidelines. We further
conclude that the Corps complied with the ESA, as its
determination that Southern California steelhead would not
be affected by the Project and its corresponding decision not
to consult with NMFS were not arbitrary and capricious. For
similar reasons, we conclude that the Corps reasonably
assessed the Project’s potential impacts to the steelhead and
provided sufficient discussion to satisfy its NEPA obligations.
FRIENDS OF THE SANTA CLARA RIVER V. USACE 39
Accordingly, the district court properly granted summary
judgment in the Corps’s favor.
AFFIRMED.