Jun 1: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-15363. The Appeals Court indicates that it must decide whether the decisions of two Federal agencies approving the construction of a business park on protected wetlands in California were arbitrary and capricious. The statutes involved are the Clean Water Act (CWA and the Endangered Species Act (ESA).
After years of researching potential sites for economic development, the City of Redding, California, decided to construct a business park on a 678-acre site located on wetlands along Stillwater Creek, and started to draft an environmental impact statement (EIS). The proposed site contains critical habitat for several ESA-listed species under the jurisdiction of the Secretary of the Interior, including the threatened vernal pool fairy shrimp, the endangered vernal pool tadpole shrimp, and the threatened slender Orcutt grass. The ESA-listed species occupy the site's vernal pools -- shallow depressions that fill with rainwater in the fall and winter and then dry up in the spring.
Butte Environmental Council filed suit against the Corps, FWS and the City in federal district court. The Council sought judicial review under the Administrative Procedure Act (APA), of the Corps' decision to issue a permit for the City's proposed project and the FWS's biological opinion that the project would not adversely modify the critical habitat for endangered and threatened species.
The district court granted summary judgment in favor of the agencies and the City. It held that "the Corps was neither arbitrary nor capricious when rationally concluding the Stillwater site was the [least environmentally damaging practicable alternative]," and that the FWS's biological opinion stated "a rational connection between the facts found and the conclusion reached." The Appeals Court affirmed the judgment of the district court.
In reviewing the CWA issues, the Appeals Court said, "In sum, the Corps stated a rational connection between the facts found and the conclusion that the proposed Stillwater site was the least environmentally damaging practicable alternative. We therefore conclude that the Corps' decision to issue the City a permit was neither arbitrary nor capricious." The Appeals Court ruled on a number of sub-issues related to the ESA claims; however it said, "We therefore reject the Council's contention that the FWS applied a definition of 'adverse modification' that ignored the value of critical habitat for the recovery of the affected species."
Access the complete opinion (click here).
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