Livable Lake Stevens v. United States Army Corps of Engineers

• Court: District Court, W.D. Washington
• Decided: June 24, 2024
• Docket: 2:21-cv-01423
• Status: Unknown

Opinion

1 HONORABLE RICHARD A. JONES 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 10 AT SEATTLE 11 LIVABLE LAKE STEVENS, CASE NO. 2:21-cv-01423-RAJ 12 Plaintiff, ORDER GRANTING CROSS- MOTIONS FOR SUMMARY 13 v. JUDGMENT 14 UNITED STATES ARMY CORPS OF ENGINEERS, et al., 15 Defendants, 16 and, 17 COSTCO WHOLESALE CORPORATION, 18 Intervenor-Defendant. 19 20 I. INTRODUCTION 21 THIS MATTER comes before the Court on a Motion for Summary Judgment filed 22 by Livable Lake Stevens (“Plaintiff” or “LLS”), Dkt. # 35, Cross-Motion for Summary 23 Judgment filed by United State Army Corps of Engineers (the “Corps”) and Seattle 24 District Commander, Alexander L. Bullock (collectively, “Federal Defendants”), Dkt. # 25 37, and Cross-Motion for Summary Judgment filed by Intervenor-Defendant Costco 26 Wholesale Corporation (“Costco”), Dkt. # 38. The Court has reviewed the motions, all 1 submissions filed in support of and opposition to the motions, the balance of the record, 2 and the applicable law. Plaintiff and Costco requested oral argument, but the Court finds 3 this unnecessary. For the reasons set forth below, the Court DENIES Plaintiff’s Motion 4 for Summary Judgment, Dkt. # 35, and GRANTS Defendants’ Cross-Motions for 5 Summary Judgment. Dkts. # 37, 38. 6 II. BACKGROUND 7 This litigation arises out of a dispute over the Corps’ issuance of a Clean Water 8 Act Section 404 permit (“Section 404 permit”) to Costco for a project in Lake Stevens, 9 Washington. The relevant factual history is described below. 10 Starting in April 2019, Costco and the City of Lake Stevens (“Lake Stevens”) 11 collaborated to create a suitable site plan for a Costco warehouse in Lake Stevens. See 12 generally AR1636-71, Order Adopting Binding Site Plan, (Apr. 16, 2020) (“City Site 13 Plan”). The City Site Plan required Costco complete three separate mitigation measures. 14 Id. at AR1652. The Plan required Costco to purchase 3.044 credits from the Snohomish 15 Mitigation bank, which is the Washington Department of Ecology and the Corps’ 16 preferred mitigation action. See id.; see also 33 C.F.R. 332.3(b)(2). The City Site Plan 17 also required Costco to improve fish-blocking culverts in a tributary to Mosher creek and 18 provide enhancement plantings. See AR1652. Lastly, the City Site Plan required Costco 19 to create 0.45 acres of wetland/fish habitat along Wetland D, a measure that addressed 20 the Tulalip Tribe’s interest in Costco taking measures to enhance fish habitat near the 21 project site. See id.; see also AR2477. Once Costco secured Lake Stevens’ approval, 22 the retailer applied for a Section 404 permit, proposing to fill 1.72 acres of wetlands in 23 Lake Stevens in order to construct the warehouse, parking, and stormwater infrastructure. 24 When reviewing the Section 404 application, the Corps conducted analyses to 25 ensure compliance with the Clean Water Act (“CWA”) and the National Environmental 26 1 Policy Act (“NEPA”). The Corps conducted a public interest review, analyzing the 2 wetlands, fish and wildlife vales, water quality, and climate change effects that could 3 impact the environment. See AR0018-22. The Corps evaluated nine alternatives to the 4 proposed project, including a no-action alternative, five off-site, and three on-site 5 alternatives. See AR0009-12. The Corps explained that six of the nine alternatives were 6 not selected for more detailed analyses because they did not meet the purposes of the 7 project. See id. In addition, the Corps provided a more detailed analysis of potential 8 impacts associated with the three remaining sites. See id. 9 In March 2020, the Corps gave public notice that Costco applied for a Section 404 10 permit, and invited public comment while the Corps reviewed the application. See 11 AR0899. LLS participated in the process and raised concerns about the environmental 12 impacts of the Costco project. See e.g., AR1236-79; AR1222-35; AR2307-66. In 13 November 2021, prompted by comments made by LLS, the Corps reached out to Costco 14 to request a more accurate representation of Alternative Site # 2, one of the five off-site 15 proposed alternative building sites. AR2308-09. The Corps worked with Costco’s team 16 to assess concerns raised by LLS in the comment. See AR2449; see also AR2452-62. 17 The Corps evaluated a detailed report, prepared by Costco’s consultant, that addressed 18 Plaintiff’s comments and evaluated the scientific information available. See Dkt. # 37 at 19 28-29 (citing AR0008-12). Ultimately, the Corps determined that Plaintiff’s assertions 20 were based on stale data and decided to rely on data provided by Costco’s consultant in 21 preparing the Environmental Assessment. See id. 22 On April 21, 2021, the Corps finalized its analysis and published its 23 Environmental Assessment (“EA”) and Finding of No Significant Impact (“FONSI”) 24 (collectively, “EA/FONSI”). AR001-31. On April 29, 2021, the Corps issued Costco a 25 Section 404 permit authorizing the retailer to fill 1.72 acres of wetlands. AR0032-36. In 26 1 July 2021, after conducting initial site preparation, Costco started construction on the 2 warehouse. See Dkt. # 38 at 4 (citing Dkt. # 38-1, Decl. of Steve Bullock ¶ 6). Costco 3 completed mitigation efforts and construction of the warehouse as of November 2022. 4 See id. at 5 (citing Dkt. # 38-1 Decl. of Steve Bullock ¶¶ 10-11). 5 In October 2021, four months after construction began on the site, LLS filed a 6 lawsuit against the Federal Defendants for alleged violations of the NEPA, 42 U.S.C. §§ 7 4321-47, and the CWA, 33 U.S.C. §§ 1251-1387, for issuing the Section 404 permit to 8 Costco. See Dkts. # 1, 19. Plaintiff challenges the sufficiency of the Corps’ EA/FONSI, 9 and the Corps’ decision not to prepare an Environmental Impact Statement (“EIS”). 10 Plaintiff requested that the Court: 1) enter Declaratory Judgment that Defendants violated 11 NEPA, CWA, and APA; 2) vacate the wetland fill permit issued; and 3) provide 12 injunctive relief to ensure that Federal Defendants comply with the CWA and NEPA 13 when issuing similar permits. See Dkt. # 19 at 15-16. Although not initially a party to 14 this litigation, the Court admitted Costco into this litigation as an intervenor-defendant. 15 Dkt. # 11. 16 III. DISCUSSION 17 A. Justiciability 18 Before the Court can address the substance of LLS’ claims, the Court must analyze 19 certain justiciability issues. Costco argues LLS fails to establish the redressability prong 20 of Article III standing and LLS’ claims are prudentially moot. See Dkts. # 38, 43. As 21 explained below, the Court is not convinced that LLS has established the redressability 22 requirement of Article III standing. Furthermore, even if standing is established, the 23 Court finds Plaintiff’s claims are moot. 24 25 26 1 1. Standing 2 There are “three requirements for Article III standing: (1) an injury in fact that (2) 3 is fairly traceable to the challenged conduct and (3) has some likelihood of 4 redressability.” Pub. Lands for the People, Inc. v. U.S. Dep’t of Agric., 697 F.3d 1192, 5 1195-96 (9th Cir. 2012) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)). 6 With respect to the “injury in fact” requirement, the injury must be “concrete and 7 particularized; ... actual and imminent, not conjectural or hypothetical.” Id. at 1196 8 (quoting Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)). There must be a 9 causal connection between the alleged injury and the conduct at-issue. See Lujan, 504 10 U.S. at 560. The redressability inquiry for standing “analyzes the connection between 11 the alleged injury and requested judicial relief.” Washington Env’t Council v. Bellon, 12 732 F.3d 1131, 1146 (9th Cir. 2013). 13 a. Injury 14 LLS asserts three alleged injuries stemming from the Costco project. First, LLS 15 asserts the project caused a loss of wildlife habitat that diminishes opportunities for LLS 16 members to enjoy and benefit from fish populations. See Dkt. # 19 ¶ 10. Second, LLS 17 claims its interest in the government performing credible analyses to minimize 18 environmental impact was harmed by the Corps’ analyses that led to the issuance of the 19 Section 404 permit. Id. ¶ 11. Lastly, LLS asserts standing on the basis that they seek to 20 ensure that applicable laws are followed. Id. ¶ 12. 21 LLS asserts that the Complaint and Declaration from a single LLS member, Doug 22 Turner, demonstrates its basis for standing. See Dkt. # 35 at 9; Dkt. # 36. The 23 Declaration makes generalizations about the alleged injury, claiming that the filling of 24 the wetlands has harmed the salmon population and other wildlife in Mosher Creek, thus 25 26 1 harming members of LLS. See Dkt. # 36 ¶ 5. The Declaration includes a photo of a dead 2 salmon and supporting text to insinuate that this was caused by the wetland fill. See Id. 3 Plaintiff does not provide any facts or evidence that the filling of the wetlands and 4 building of the Costco is connected to any harm of the animals beyond these claims made 5 by concerned citizens. “[A]t the summary judgment stage, a factual showing of 6 perceptible harm,” is required to establish standing. Lujan, 504 U.S. at 566. Generalized 7 grievances, without factual support, untethered to a concrete action and concrete injuries, 8 like the allegations LLS makes here, are insufficient to withstand Article III scrutiny. 9 However, even if they withstood Article III scrutiny, as explained below, the Court could 10 not likely grant meaningful relief to redress the alleged harm. 11 b. Redressability 12 To demonstrate redressability, a plaintiff must show that the injury “is likely to be 13 redressed by a favorable decision.” Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 14 26, 38, 41 (1976). The redressability inquiry for standing “analyzes the connection 15 between the alleged injury and requested judicial relief.” Bellon, 732 F.3d at 1146. 16 Here, the second and third injuries set forth by LLS seek vindication of the rule of 17 law which do meet Article III’s standing requirements. Although a judgment in LLS’ 18 favor may provide some satisfaction to its members, requiring the Corps to adhere to the 19 law in the future, when issuing other permits generally where LLS is not involved, “is 20 not an acceptable Article III remedy because it does not redress a cognizable Article III 21 injury.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 107 (1998); see also Juliana 22 v. United States, 947 F.3d 1159, 1170 (9th Cir. 2020) (holding claims did not meet the 23 requirement for redressability because a declaration that the government is violating the 24 law is relief that “is not substantially likely to mitigate the plaintiffs’ asserted concrete 25 injuries” and “is unlikely by itself to remediate their alleged injuries absent further court 26 1 action”). Therefore, the Court finds LLS’ second and third claimed injuries do not meet 2 the redressability requirements for Article III standing. 3 The Court is also not convinced that the Plaintiff’s first alleged injury, that 4 members lost the enjoyment of wildlife, meets redressability standing requirements. LLS 5 does not claim Costco’s extensive mitigation efforts were insufficient, and at most 6 propose that the Court could “require mitigation that would account for future adverse 7 effects” of the wetland fill. Dkt. # 41 at 8. The Court cannot grant relief to address 8 speculative future harm. Greenstein v. Noblr Reciprocal Exch., 585 F. Supp. 3d 1220, 9 1232 (N.D. Cal. 2022) (finding plaintiffs could not establish redressability where they 10 failed to demonstrate a strong risk of harm or provide particularized facts about a future 11 harm and stating “it would be inappropriate for this Court to not only speculate about 12 future harm, but whether a future decision would redress hypothetical harm”). As LLS 13 did not put forth any particular facts about future harm, it has failed to establish the 14 redressability prong required for Article III standing. 15 2. Mootness 16 Defendant Costco maintains, and the Court agrees, Plaintiff’s claims concerning 17 the now-complete wetland filling and construction of the Costco are moot. Even if LLS 18 initially had standing to pursue their claims, those claims are now moot. 19 “The ripeness inquiry asks ‘whether there is yet any need for the court to act,’ 20 while the mootness inquiry asks ‘whether there is anything left for the court to do.’” W. 21 Oil & Gas Ass’n v. Sonoma Cnty., 905 F.2d 1287, 1290 (9th Cir. 1990) (quoting 13A 22 Wright, Miller & Cooper, Federal Practice and Procedure, § 3532.1 (2d ed. 1984)). “The 23 basic question in determining mootness is whether there is a present controversy as to 24 which effective relief can be granted.” Nw. Env’tl Def. Ctr. v. Gordon, 849 F.2d 1241, 25 1244 (9th Cir. 1988) (citing United States v. Geophysical Corp. of Alaska, 732 F.2d 693, 26 1 698 (9th Cir. 1984)). “A case becomes moot whenever it ‘los[es] its character as a 2 present, live controversy of the kind that must exist if [courts] are to avoid advisory 3 opinions on abstract propositions of law.’” West v. Sec’y of Dep’t of Transp., 206 F.3d 4 920, 924 (9th Cir. 2000) (quoting Hall v. Beals, 396 U.S. 45, 48 (1969)); see also City of 5 Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000) (stating that unless the plaintiff can obtain 6 effective relief, any opinion as to the legality of the challenged action would be advisory, 7 in violation of Article III of the United States Constitution). A federal court has no 8 authority to issue opinions upon moot questions. See Church of Scientology of Cal. v. 9 United States, 506 U.S. 9, 12 (1992). 10 It is not enough to survive a mootness challenge for there to have been an actual 11 dispute at the time the complaint was filed; there must remain a “live” controversy 12 throughout all stages of the court’s review. See Burke v. Barnes, 479 U.S. 361, 363 13 (1987); Preiser v. Hewkirk, 422 U.S. 395, 401 (1975). Essentially, any change in the 14 facts that ends the controversy renders the case moot. See Sosna v. Iowa, 419 U.S. 393, 15 403 (1975). Even if a case is not constitutionally moot, a court may in its discretion 16 dismiss a claim as prudentially moot “if circumstances have changed since the beginning 17 of litigation that forestall any occasion for meaningful relief [.]” Deutsche Bank Nat. Tr. 18 Co. v. FDIC, 744 F.3d 1124, 1135 (9th Cir. 2014). 19 Plaintiff urges the Court to reject Costco’s prudential mootness argument. See 20 Dkt. # 41 at 3-10. LLS contends that cases relied upon by Costco, Deutsche Nat. Tr. Co., 21 744 F.3d 1124 (9th Cir. 2014) and Henrichs v. Valley View Dev., 474 F.3d 609 (9th Cir. 22 2007), are “completely inapposite” because the cases “do not involve either NEPA or the 23 CWA.” See id. at 9 n.20. The Court disagrees. In fact, a court in this district has 24 recognized and applied the prudential mootness doctrine in cases involving NEPA and 25 the CWA. See Idaho Rivers United v. U.S. Army Corps of Eng’rs, No. 14-cv-1800, 2016 26 1 WL 498911, at *9 (W.D. Wash. Feb. 9, 2016). There, the court found the claim 2 prudentially moot because the plaintiff failed to demonstrate an on-going injury as a 3 result of the completed project that could be mitigated. See id. Therefore, the Court 4 concludes it is appropriate to consider and apply the doctrine in this case. 5 LLS insists its claims are not moot. As discussed previously, Plaintiff requests 6 the Court grant the following relief: 1) enter Declaratory Judgment that Defendants 7 violated NEPA, CWA, and APA; 2) vacate the wetland fill permit issued; and 3) provide 8 injunctive relief to ensure that Federal Defendants comply with the CWA and NEPA 9 when issuing similar permits. Dkt # 19 at 15-16. Plaintiff also claims, “the Corps’ 10 decision should be vacated and remanded for the preparation of a full EIS, or at least an 11 EA that complies with the law.” Dkt. # 35 at 34. For the reasons stated in Section III.1.b. 12 supra, the Court cannot redress alleged harms that involve the vindication of the rule of 13 law, and thus need not address the mootness of the injuries and relief sought for those 14 points. 15 Plaintiff now also claims relief “could include vacating the challenged Permit, and 16 it could even include ordering the removal of the Costco Warehouse and restoration of 17 the filled wetlands.” Dkt. # 41 at 6. LLS is correct that completion of a project does not 18 necessarily moot an environmental claim. See West v. Sec’y of Dep’t of Transp., 206 19 F.3d 920, 925 (9th Cir. 2000); Tyler v. Cuomo, 236 F.3d 1124, 1137 (9th Cir. 2000); 20 Neighbors of Cuddy Mountain. v. Alexander, 303 F.3d 1059, 1066 (9th Cir. 2002). A 21 case is moot “only where there is no effective relief for the alleged violation[.]” See Nat’l 22 Fam. Farm Coal. v. EPA, 747 F. App’x 646, 647 (9th Cir. 2019) (quoting Neighbors of 23 Cuddy Mountain, 303 F.3d at 1065). 24 As discussed in Section III.1.a. supra, Plaintiff has failed to demonstrate any on- 25 going injury to salmon or other wildlife caused by the wetland fill in 2021 that the Corps 26 1 could mitigate. Therefore, the Court would be unable to order relief to mitigate a harm 2 that has not been substantiated. See Idaho Rivers United, 2016 WL 498911, at *9. Even 3 if the Court ordered the razing of the warehouse, LLS’ generalized claim about the causal 4 nature of the injury in the Declaration does not sufficiently demonstrate that the claimed 5 injury could be redressed by taking a drastic action of ordering the removal the warehouse 6 and restoration of the filled wetlands to their prior condition. Accordingly, the Court 7 finds that Plaintiff’s claims concerning the completed wetland fill are now moot. 8 B. Substantive Challenges 9 Even if Plaintiff’s claims established proper standing and were not moot, the Court 10 would still grant summary judgment in favor of the Corps and Costco on substantive 11 grounds. The administrative record demonstrates the Corps did not act in an arbitrary or 12 capricious manner, abuse its discretion, or otherwise act contrary to the law when issuing 13 the Section 404 permit to Costco in April 2021. 14 1. Standard of Review 15 The Administrative Procedures Act (APA) permits judicial review of a “final 16 agency action for which there is no other adequate remedy in court.” 5. U.S.C. § 704. 17 The Court may only set aside the underlying agency decision if it is “arbitrary, capricious, 18 an abuse of discretion, or otherwise not in accordance with law.” Id. § 706(2)(A). Thus, 19 the Court does not, as it would in ruling on an ordinary summary judgment motion, 20 determine whether there is any genuine dispute of material fact. See Occidental Eng’g 21 Co. v. I.N.S., 753 F.2d 766, 769 (9th Cir. 1985); Fla. Power & Light Co. v. Lorion, 470 22 U.S. 729, 744 (1985). Instead, summary judgment serves as a mechanism for deciding, 23 as a matter of law, whether the agency action passes muster under the APA. Nw. 24 Motorcycle Ass’n v. U.S. Dep’t Agric., 18 F.3d 1468, 1471-72 (9th Cir. 1994); Occidental 25 Eng’g, 753 F.2d at 769-70. Accordingly, the Court reviews the evidence included in the 26 1 administrative record to determine whether, as a matter of law, the evidence permitted 2 the agency to make the decision it did. Id. Although the Court’s review of the evidence 3 is to be “searching and careful,” it is “not empowered to substitute [its] judgment for that 4 of the agency.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 5 (1971). 6 2. NEPA 7 NEPA imposes procedural requirements designed to force agencies to take a “hard 8 look” at the environmental consequences of their proposed actions. 350 Montana v. 9 Haaland, 50 F.4th 1254, 1265 (9th Cir. 2022). To satisfy the “hard look” requirement, 10 an agency must provide “a reasonably thorough discussion of the significant aspects of 11 the probable environmental consequences.” Id. To determine whether an agency has 12 complied with NEPA’s requirements, courts apply a rule of reason standard in reviewing 13 the adequacy of a NEPA document. See Klamath-Siskiyou Wildlands Ctr. v. Bureau of 14 Land Mgmt., 387 F.3d 989, 992 (9th Cir. 2004). 15 The NEPA review process concludes in one of two ways: (1) the agency 16 determines through an Environmental Assessment that a proposed action will not have a 17 significant impact on the environment and issues a Finding of No Significant Impact, or 18 (2) the agency determines that the action will have a significant impact and issues an 19 Environmental Impact Statement and record of decision. Env’tl Def. Ctr. v. Bureau of 20 Ocean Energy Mgmt., 36 F.4th 850, 868 (9th Cir. 2022). 21 LLS contends that in the Corps violated NEPA in various ways when issuing the 22 Section 404 permit, including failing to account for the cumulative effects of the project 23 and performing an inadequate alternatives analysis. See Dkt. # 35. LLS asserts that the 24 Corps should not have issued the EA/FONSI, and the Corps should have completed an 25 entire EIS. See id. As explained below, the Court is persuaded that the Corps prepared 26 1 a sufficiently detailed EA and did not act arbitrarily and capriciously. Thus, the Corps 2 were not required to publish an EIS. 3 a. Environmental Impacts and Cumulative Effects 4 LLS argues the Corps violated NEPA and the CWA because it failed to fully 5 consider cumulative impacts of 119 acres of prior wetland fill in Snohomish County. See 6 Dkt. # 35 at 11-15. Plaintiff’s arguments are unavailing. LLS has not shown that the 7 Corps’ final decision on environmental impacts was unreasonable. See Ctr. for Cmty. 8 Action & Env’t Just. v. FAA, 61 F.4th 633, 639-640 (9th Cir. 2023). 9 As a threshold matter, the parties dispute which regulations the Corps were 10 required to follow when analyzing cumulative effects and issuing thee EA/FONSI. 11 NEPA requires an agency conducting an EA to briefly discuss “the environmental 12 impacts of the proposed action.” 40 C.F.R. § 1501.5(c)(2). These regulations were 13 updated throughout the course of the application, and the Corps were permitted to apply 14 either set of regulations. Compare 43 Fed. Reg. 55, 978 (Nov. 29, 1978) (pre-2020 15 regulations) with 40 C.F.R. 1506.13 (2020) (2020 regulations); see also AR3455.1 LLS 16 asserts that because the Corps cite to pre-2020 regulations in the EA, they were bound to 17 follow these regulations and conduct a cumulative impacts analysis. See Dkt. # 35 at 10 18 n.9. The Corps contend that they applied the 2020 regulations, despite citing the pre- 19 2020 regulations in the EA. See Dkt. # 37 at 7; see also AR0023. 20 The Ninth Circuit looks to the regulations in place at the time of the challenged 21 decision. Env’t Def. Ctr. v. Bureau of Ocean Energy Mgmt., 36 F.4th 850, 879 (9th Cir. 22 2022) (“The NEPA regulations in effect at the time the agencies issued the EA set forth 23 criteria for the agencies to consider when determining whether an action . . . requires a 24 1 The pre-2020 regulations defined “impacts” and “effects” to include “cumulative effects,” see 40 C.F.R. §§ 25 1508.7-1508.8 (Sept. 13, 2020), however the definitions were updated and eliminated “cumulative impacts” from the regulations’ definition of “impacts” or “effects.” See 40 C.F.R. § 1508.1(g) (Sept. 14, 2020) (updated definition 26 of “effects” or “impacts”). 1 full EIS.”). Accordingly, this Court reviews the challenged environmental impacts 2 analysis under the 2020 regulations, which did not require an agency to examine 3 cumulative effects, as those rules were in effect at the time the permit’s issuance in 2021. 4 Under the 2020 regulations, the Corps properly considered and explained the 5 environmental impacts in the EA/FONSI. The Corps analyzed relevant impacts as a part 6 of its public interest review, which included analyzing the wetlands, fish and wildlife 7 vales, water quality, and climate change effects that could impact the environment. 8 AR00018-22. Additionally, the Corps considered potential cumulative impacts in light 9 of mitigation efforts and concluded that the mitigation would compensate for any effects 10 of the fill in the geographic area of Lake Stevens. See AR0023-25; see also AR0017; 11 AR0830. 12 Even under the pre-2020 regulations, the Corps’ decision to issue the permit would 13 prevail. Plaintiff’s main contention with the Corps’ cumulative impact analysis appears 14 to be that the Corps used the incorrect geographic scope when addressing cumulative 15 impacts and should have considered information that is outside the scope of the 16 administrative record. See Dkt. # 35 at 11-12. Plaintiff argues that the Corps should have 17 used the geographic scope of Snohomish County, rather than Lake Stevens, which could 18 have altered the cumulative impacts analysis. See id. 19 The Court finds that, in accordance with 33 U.S.C. § 1344(e)(1), the Corps 20 properly considered the cumulative impacts associated with the project. See AR0023- 21 25. It was well within the Corps’ discretion to use Lake Stevens as the geographic 22 boundary for the purposes of cumulative impacts analysis. N. Plains Res. Council, Inc. 23 v. Surface Transp. Bd., 668 F.3d 1067, 1087 (9th Cir. 2011) (“The determination of the 24 geographic boundary where environmental impacts may occur is often a task assigned to 25 the special competency of the appropriate agencies.” (internal quotation omitted)). 26 1 Plaintiff also argues the Corps’ cumulative impacts analysis was conclusory, thus 2 in violation of federal law. Dkt. # 35 at 13. The Corps’ consideration of the mitigative 3 action to compensate for the project as well additional mitigation that would enhance fish 4 habitats in the area support the Corps’ conclusion that overall impacts are not significant. 5 The evidence in the record supports that Costco’s mitigation efforts went above and 6 beyond what was required by the government, ultimately improving the land for wildlife, 7 including creating fish passable culverts for Mosher Creek. See e.g., AR0025 (requiring 8 Costco to create fish passable culverts); AR1653 (requiring Costco to remove failing 9 septic system that degraded water quality of certain wetlands to improve wetland 10 function); AR2273 (National Marine Fisheries Service concluded “[i]n the long term, the 11 project includes conservation measures that will improve [essential fish habitat] for coho 12 salmon”). Although the EA succinctly discusses cumulative impacts, the EA and the 13 record reflect an adequate process that demonstrate the Corps took the requisite hard look 14 at the cumulative impacts. See Bering Strait Citizens for Responsible Res. Dev. V. U.S. 15 Army Corps of Eng’rs, 524 F.3d 938, 954-55 (9th Cir. 2008) (finding a succinct 16 discussion of cumulative impacts was adequate under NEPA’s pre-2020 regulations 17 where the Corps concluded the mitigation measures would improve the natural 18 conditions); see also Ctr. for Cmty. Action & Env’t Just., 61 F.4th at 647 (9th Cir. 2023) 19 (finding cumulative impact analysis where the complaining party criticized the EA’s 20 results rather than procedures). 21 The Court concludes that the Corps acted within the discretion afforded by NEPA, 22 under the pre-2020 regulations and 2020 regulations, and properly considered 23 environmental and cumulative impacts that the wetland fill would have in Lake Stevens 24 when issuing the Section 404 permit. 25 26 1 b. Alternatives Analysis 2 LLS argues that the Corps did not comply with NEPA because the Corps failed to 3 properly eliminate alternatives for the proposed building sites. The Court is not 4 persuaded that the Corps acted arbitrarily in reaching the conclusions for the alternatives 5 analysis in the EA. 6 NEPA requires federal agencies to “study, develop, and describe appropriate 7 alternatives to recommended courses of action in any proposal which involves unresolved 8 conflicts concerning alternative uses of available resources[.]” 42 U.S.C. § 4332(2)(e). 9 Although this obligation applies to both the preparation of an EA and EIS, Bob Marshall 10 Alliance v. Hodel, 852 F.2d 1223, 1229 (9th Cir. 1988), “an agency’s obligation to 11 consider alternatives under an EA is a lesser one than under an EIS.” Ctr. for Biological 12 Diversity v. Salazar, 695 F.3d 893, 915 (9th Cir. 2012) (internal quotations omitted). 13 “[W]hereas with an EIS, an agency is required to ‘[r]igorously explore and objectively 14 evaluate all reasonable alternatives,’ see 40 C.F.R. § 1502.14(a), with an EA, an agency 15 only is required to include a brief discussion of reasonable alternatives.” Id. at 915 16 (quoting N. Idaho Cmty. Action Network v. U.S. Dep’t of Transp., 545 F.3d 1147, 1153 17 (9th Cir. 2008)) (brackets in original); cf. 40 C.F.R. § 1508.9(b). When evaluating a 18 reasonable range of alternatives, an EA “need not consider an infinite range of 19 alternatives, only reasonable or feasible ones.” Westlands Water Dist. v. U.S. Dep’t of 20 Interior, 376 F.3d 853, 868 (9th Cir. 2004) (internal quotations omitted). 21 LLS challenges the Corps’ decision to eliminate Alternative Site # 3 from the 22 proposed building sites for the Costco warehouse. Dkt. # 35 at 22-23. Plaintiff criticizes 23 the Corps for not independently verifying information when reaching the conclusion that 24 Alternative Site # 3 would not be large enough for the Costco warehouse. See id.; see 25 also AR2295-98. LLS claims it was improper for the Corps to rely on information from 26 1 Costco’s consultant’s report that used information from a proposed Lowe’s development 2 in 2017 that required 30-foot landscape setbacks, leading to the conclusion that the site 3 would be “too small to accommodate the Costco’s proposed development.” AR2297. 4 The Corps’ reliance on the Costco’s consultant’s data about Alternative Site # 3 5 is reasonable and is entitled to deference from this Court. Federal Defendants 6 demonstrated that the Corps engaged in a thorough query of the data and evidence 7 presented by Costco. See Dkt. # 37. Additionally, the Corps engaged with public 8 comments and requested information because of public comment about the alternatives 9 analysis. See, e.g., AR2403. Agencies are entitled to deference to determine “what 10 constitutes the best available scientific information.” Friends of Rapid River v. Probert, 11 427 F. Supp. 3d 1239, 1258 (D. Idaho 2019). Further, the Corps are not required to 12 independently evaluate information relied upon when preparing an EA. See Clatsop 13 Residents Against Walmart v. U.S. Army Corps of Eng’rs, 735 F. App’x 909, 911 (9th 14 Cir. 2018) (“No regulation imposes a standalone requirement that the Corps 15 independently evaluate an applicant’s submissions when preparing an EA.”). 16 Accordingly, the Corps permissibly relied upon the consultant’s data and were not 17 obligated to independently evaluate this information when ruling out Alternative Site # 18 3. Therefore, the Court concludes the Corps did not violate NEPA when considering the 19 reasonable range of alternatives in issuing the EA/FONSI. 20 3. CWA 21 LLS raises similar arguments about the Corps’ alternatives analysis and 22 cumulative impacts analysis under the CWA, although LLS treats these arguments under 23 both statutes identically in its reply brief. See Dkts. # 35, 41. 24 The Clean Water Act prohibits the discharge of dredged or fill material into 25 navigable waters of the United States without a permit. Section 404(e)(1) of the CWA 26 1 authorizes the Corps to issue general permits on a state, regional, or nationwide basis for 2 categories of activities involving discharges of dredged or fill material that the Corps 3 determines “are similar in nature, will cause only minimal adverse environmental effects 4 when performed separately, and will have only minimal cumulative adverse effect on the 5 environment.” 33 U.S.C. § 1344(e)(1). The issuance of such permits is governed by the 6 commonly referred to “Section 404(b) Guidelines,” which the Environmental Protection 7 Agency and the Corps developed to implement Section 404(b)(1) of the CWA, 33 U.S.C. 8 § 1344(b)(1). Under those guidelines, the Corps must generally avoid adverse water 9 quality impacts where practicable alternatives exist, mitigate those impacts, and then 10 minimize the adverse effects of the proposed discharge to the maximum extent 11 practicable. See 33 U.S.C. § 1344(b)(1); 33 C.F.R. § 320.4(r); 40 C.F.R. § 230.10(d) and 12 pt. 230, subpart H. 13 a. Cumulative Impacts 14 Although NEPA did not require a cumulative impacts analysis at the time of the 15 permit’s issuance, typically the standard is similar under the prior NEPA regulations and 16 the CWA. Utahns for Better Transp. v. U.S. Dep’t of Transp., 305 F.3d 1152, 1191 (10th 17 Cir. 2002) (upholding a Corps permit under the CWA where the Corps satisfied NEPA’s 18 broader cumulative impacts requirements). As discussed in Section III.B.2.a. supra, even 19 considering the pre-2020 NEPA regulations, the Court has concluded the Corps 20 adequately considered cumulative impacts in light of mitigation efforts. As the 21 cumulative impacts analysis is broader under NEPA than the CWA, the Court concludes 22 the Corps did not violate the CWA in conducting its cumulative impacts analysis. 23 b. Alternatives Analysis 24 Plaintiff contends that under the CWA the Corps should have considered the 25 Plaintiff’s proposed alternative which would have had less adverse impact on the aquatic 26 1 system. Guidelines state in relevant part: “[N]o discharge of dredged or fill material shall 2 be permitted if there is a practicable alternative to the proposed discharge which would 3 have less adverse impact on the aquatic ecosystem, so long as the alternative does not 4 have other significant adverse environmental consequences.” 40 C.F.R. §230.10(a). The 5 CWA guidelines provide that: “For actions subject to NEPA, where the Corps of 6 Engineers is the permitting agency, the analysis of alternatives required for NEPA . . . 7 will in most cases provide the information for the evaluation of alternatives under [the 8 CWA] Guidelines.” 40 C.F.R. § 230.10(a). 9 Plaintiff asserts the Corps were required to consider its proposal because it 10 provided a plan that was less damaging to the environment. Dkt. # 35 at 19. LLS’ 11 proposal omitted plans to build a connecting road which would preserve a wetland on the 12 property. See AR2315. This proposal was at odds with the City Site Plan that was 13 approved by the City of Lake Stevens, over Plaintiff’s objection on this point, before 14 Costco applied to the Corps for the Section 404 permit. See AR2465-66 (City of Lake 15 Stevens denial of Plaintiff’s challenge because the City Site Plan required Costco to build 16 the connector road). The Corps are only required to consider feasible alternatives in 17 detail. See, e.g., 33 C.F.R. Part 325, App’x B. Costco’s permit application included a 18 connector road as part of the City Site Plan; therefore, the Corps reasonably considered 19 nine alternatives that included the road. See e.g., Bering Strait Citizens for Responsible 20 Res. Dev., 524 F.3d 938, 948 (9th Cir. 2008) (finding the Corps did not violate the CWA 21 where it considered 24 design alternatives and noting it would be inappropriate for the 22 court to overturn the Corps’ findings even if an argument can be made that one of the 23 unconsidered sites was suitable). 24 25 26 1 In sum, the Court concludes that the Corps did not violate the CWA. The Corps 2 took a hard look at alternatives and were not required to independently evaluate 3 information relied upon in its analysis. 4 IV. CONCLUSION 5 For the reasons stated above, the Court DENIES Plaintiff’s Motion for Summary 6 Judgment. Dkt. # 35. The Court GRANTS Defendants’ Cross-Motions for Summary 7 Judgment. Dkts. # 37, 38. 8

9 Dated this 21st day of June, 2024. 10

11 A 12 13 The Honorable Richard A. Jones 14 United States District Judge 15 16

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