Opinion
Civ. No. 01-0273 (TFH).
March 23, 2005
MEMORANDUM OPINION
Pending before the Court are Plaintiff National Wilderness Institute's ("NWI") Motion for Summary Judgment, Defendants' Motion for Summary Judgment, and Defendants' Motion to Strike Exhibits 3, 4, and 5 to Plaintiff's Motion for Summary Judgment. After a careful review of all motion papers, the administrative record, and the entire record in this case, this Court will grant Defendants' Motion to Strike Exhibits 3, 4, and 5, deny Plaintiff's Motion for Summary Judgment, and grant Defendants' Motion for Summary Judgment.
Defendants include the United States Army Corps of Engineers ("Corps"), the United States Department of Commerce ("Commerce"), the National Marine Fisheries Service ("Marine Fisheries Service"), the United States Department of the Interior ("Interior"), the United States Fish and Wildlife Service ("Fish and Wildlife Service"), the United States Environmental Protection Agency ("EPA"), and the Federal Highway Administration ("Highway Administration").
PROCEDURAL HISTORY
Plaintiff initiated this action on February 6, 2001, alleging that Defendants' actions and failures to act in connection with the operation of the Washington Aqueduct and with the federal project to replace the Woodrow Wilson Bridge violated the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1536 and 1538, the implementing regulations, 50 C.F.R. Part 400 et seq., and the Administrative Procedure Act ("APA").
On April 17, 2001, Plaintiff moved for Preliminary Injunction to enjoin Defendants from engaging in further discharge from the Washington Aqueduct into the Potomac River, which had been authorized by National Pollution Discharge Elimination System ("NPDES") Permit Number 0000019. See Mem. Op. on May 22, 2001. Defendants subsequently moved to dismiss Plaintiff's claims relating to the Washington Aqueduct on April 27, 2001. See id. By Order of May 22, 2001, this Court denied Plaintiff's Motion for Preliminary Injunction and denied Defendants' Partial Motion to Dismiss with the exception of Count VI, which this Court dismissed for lack of jurisdiction. See id.
Plaintiffs have recently filed their Motion for Summary Judgment, to which Defendants have responded with a cross-motion for summary judgment. The State of Maryland has filed an Amicus Curiae Memorandum in Support of Defendants' Motion for Summary Judgment and in Opposition to Plaintiff's Motion for Summary Judgment. Additionally, Defendants have filed a Motion to Strike Exhibits 3, 4, and 5 from Plaintiff's Motion for Summary Judgment.
This Court granted Maryland permission to participate as Amicus Curiae In Support of Defendants by its Order of January 4, 2002.
BACKGROUND
I. Statutory Background
The Endangered Species Act ("ESA") governs the protection and conservation of endangered and threatened species. See 16 U.S.C. §§ 1531- 1544. The purposes of the ESA are "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved," and "to provide a program for the conservation of such endangered species and threatened species." 16 U.S.C. § 1531(b). An "endangered species" is one "which is in danger of extinction throughout all or a significant portion of its range." 16 U.S.C. § 1532(6). A "threatened" species is "any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." 16 U.S.C. § 1532(20).
Under the ESA, all federal agencies must consult with the relevant Service, to "insure that any action authorized, funded, or carried out" by the 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 critical habitat. 16 U.S.C. § 1536(a)(2); see also 16 U.S.C. § 1536(a)(3) (requiring federal agencies to consult with the relevant Service on any prospective agency action at the request of a prospective permit or license applicant). "Jeopardize the continued existence of" is defined in the regulations as meaning:
For the purposes of this case, "Service" means the U.S. Fish and Wildlife Service ("Fish and Wildlife Service") or the National Marine Fisheries Service ("Marine Fisheries Service") as appropriate. 50 C.F.R. 402.02. The consultation with regard to the shortnose sturgeon is done in conjunction with the Marine Fisheries Service. The consultation with regard to the bald eagle is done in conjunction with the Fish and Wildlife Service.
to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species.50 C.F.R. § 402.02. When determining whether a species will be jeopardized by a proposed action, "the best scientific and commercial data available" must be used. 16 U.S.C. § 1536(a)(2).
The regulations further describe the consultation process and distinguish between informal and formal consultation. Informal consultation is "an optional process that includes all discussions, correspondence, etc., between the Service and the Federal agency" prior to formal consultation, if required. 50 C.F.R. § 402.13(a). A biological assessment ("BA") shall be prepared by the agency if either the Secretary of Commerce or the Secretary of the Interior notifies the agency that a listed species may be present in the area of the proposed action. 16 U.S.C. § 1536(c)(1). The BA evaluates the "potential effects of the action on listed and proposed species . . . and determine[s] whether any such species . . . [is] likely to be adversely affected by the action. . . ." 50 C.F.R. § 402.12(a). Formal consultation need not be initiated if,
as a result of the preparation of a biological assessment . . . or as a result of informal consultation with the Service, . . . the Federal agency determines, with the written concurrence of the Director [of the Service], that the proposed action is not likely to adversely affect any listed species or critical habitat.50 C.F.R. § 402.14(b)(1) (emphasis added). The consultation process is terminated when there is a "not likely to affect" conclusion, and no further action is necessary. 50 C.F.R. § 402.14(b)(1) Formal consultation is required, however, if it is determined by the BA or by informal consultation that the action(s) of a federal agency may adversely affect listed species or critical habitat. 50 C.F.R. § 402.14(a).
If formal consultation is required, the relevant Service will formulate a biological opinion ("BiOp") in consultation with the federal agency. See 50 C.F.R. § 402.14(g)(4). The BiOp analyzes whether the proposed agency "action, taken together with cumulative effects, is likely to jeopardize the continued existence of listed species. . . ." 50 C.F.R. § 402.14(g)(4) (emphasis added). The BiOp offers reasonable and prudent alternatives to an agency action if it concludes that the action is likely to jeopardize the continued existence of a species. See 50 C.F.R. § 402.14(h)(3). Additionally, the BiOp may include an incidental take statement if it is determined that the incidental take is not likely to jeopardize the continued existence of a species. See 50 C.F.R. § 402.14(i). When the BiOp is issued, formal consultation ends.See 50 C.F.R. § 402.14(l).
An incidental take statement in a BiOp specifies the amount or extent of incidental taking of a species that will be allowed under the ESA as a result of the proposed agency action. See 50 C.F.R. § 402.14(i)(1).
Re-initiation of formal consultation, however, is required where (1) the amount or extent of taking authorized by an incidental take statement is exceeded, (2) new information reveals effects of the agency action not previously considered, (3) the agency action is modified in a manner that causes an effect not previously considered, or (4) a new species is listed or critical habitat designated that may be affected by the agency action. See 50 C.F.R. § 402.16.
Further, after initiation or re-initiation of consultation, an agency is prohibited from making "any irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures which would not violate subsection (a)(2) of this section." 16 U.S.C. § 1536(d); see also 50 C.F.R. § 402.09.
In addition to the consultation requirement explained above, the ESA prohibits the "taking" of a designated endangered species, unless otherwise authorized by, for example, an incidental take statement as described above. 16 U.S.C. § 1538(a)(1)(B). This prohibition on "taking" extends to "threatened" species as well. See 50 C.F.R. § 17.3. "Take" means to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. § 1532(19). "Harm" in the definition of "take" is defined as an act that significantly modifies or degrades a species' habitat resulting in actual death or injury to the species. See 50 C.F.R. § 17.3(c)(3).
In addition to the documents cited, some of the information in this section is also found in the undisputed portions of Plaintiff's Statement of Material Facts as to Which There is No Genuine Dispute and Defendants' Statement of Material Facts as to Which There is No Genuine Dispute.
Plaintiff's claims focus on the endangered shortnose sturgeon and the threatened bald eagle. The shortnose sturgeon is a benthic, or bottom-dwelling, fish that is found in large rivers along the western Atlantic coast from the St. Johns River in Florida to the Saint John River in New Brunswick. See Nat'l Marine Fisheries Serv. Supplement at 2398 ("NMFS Suppl."). The species was originally listed as endangered in 1967, and retained its endangered status with the passage of the ESA in 1973. See Compl. ¶ 24. For about 100 years prior to 1996, shortnose sturgeon had not been documented in the Potomac River. Six shortnose sturgeon have been captured and identified in the Potomac River since 1996. Each of the confirmed captures occurred at locations well downstream from the Woodrow Wilson Bridge and the Washington Aqueduct. See NMFS Suppl. at 2401. There has been no direct evidence of shortnose sturgeon spawning in the Potomac River, however, habitat near Washington Aqueduct outfalls is consistent with preferred spawning habitat for the shortnose sturgeon. Id. at 2403. The Marine Fisheries Service employs a "precautionary assumption that shortnose sturgeon are present and spawn near Little Falls [located in the Potomac River]" for purposes of consultation under § 7 of the ESA, 16 U.S.C. § 1536.Id.
The bald eagle is a bird of prey found near large bodies of water in North America. See Fish and Wildlife Serv. Suppl. at 5327 ("FWS Suppl."). While some populations of bald eagles had been listed as endangered as early as 1967, all populations of the bald eagle were considered endangered under the ESA in 1978.Id. at 5329. All bald eagle populations were re-classified as threatened rather than endangered in 1995 due to a significant increase in pairs and nest productivity. Id. In 1999, the Fish and Wildlife Service proposed to delist the bald eagle, but no further action has been taken. Id. The Chesapeake Bay population of bald eagles, the population considered in this case, has increased from about 70 pairs in the mid-1970's to about 679 pairs in 2002. Id. at 5328.
In addition to the documents cited, some of the information in this section is also found in the undisputed portions of Plaintiff's Statement of Material Facts as to Which There is No Genuine Dispute and Defendants' Statement of Material Facts as to Which There is No Genuine Dispute.
A. Washington Aqueduct
The Washington Aqueduct is operated by the Corps and produces, on average, 180 million gallons of water per day. Envtl Prot. Agency Suppl. 2944-45 ¶ 1 ("EPA Suppl."). All water that is treated comes from the Potomac River. Id. at 2945 ¶ 4. The naturally-occurring sediment in the river must be removed. Id. First, the water is allowed to settle in the Dalecarlia Reservoir before it enters the treatment process. Id. at 2945-46 ¶ 4. The sediment that accumulates in the reservoir does not go to the river but rather is periodically dredged and disposed of at land sites. Id. at 2945 ¶ 4. Next, the sediment that remains in the water is collected in the sedimentation basins at Dalecarlia and Georgetown where aluminum sulfate is added to the water as a flocculant. Id. at 2946 ¶ 5. The basins must be periodically cleaned by draining the basins and flushing the sediments into the river. Id. at 2946 ¶ 6-2947 ¶ 7. The sediments are discharged into the Potomac River either at outfall 002 or at outfalls 003 and 004. Id. at 2947 ¶ 8.
A flocculant causes materials that are dissolved or suspended in water to precipitate out of the water.
Discharges Pursuant to Permit 19
Pursuant to the Clean Water Act and the National Pollutant Discharge Elimination System ("NPDES"), the EPA issued NPDES Permit 19, which authorized these Washington Aqueduct discharges. On October 22, 2001, the Corps sought renewal of this NPDES permit. EPA Suppl. at 4257-4302. The EPA issued a first draft of a new NPDES permit for the discharges on March 28, 2002 ("first draft permit"). Id. at 3446-70. Then, in response to concerns raised during the comment period, the EPA issued a second revised draft of a new NPDES permit on December 17, 2002 ("second draft permit"). Id. at 5970-97. On March 14, 2003, the EPA issued the final new NPDES permit ("Permit 19") for the Washington Aqueduct discharges. Id. at 6783-6810. Permit 19 imposes a ban on discharges during the period from February 15 to June 30 each year when fish could be expected to be spawning in the Potomac.Id. at 6807. Permit 19 also requires that double the amount of raw river water be used to dilute the sediments further before they reach the river. Id. at 6783-6810. Under Permit 19, the Washington Aqueduct must decrease the amount of incoming solids at Dalecarlia Reservoir by 35 percent. Id. Finally, Permit 19 requires the Corps to meet strict numeric effluent limits based upon the best removal technology for total suspended solids ("TSS") and aluminum contained in discharge effluent. See id. At 6768-69. The purpose of imposing these numeric effluent limits is to require the Corps to find alternative means of disposing of the sediments from the basins. See id. at 6823. Recognizing the fact that it takes time to develop and implement alternative disposal methods, the EPA issued a Federal Facilities Compliance Agreement ("FFCA") on June 13, 2003, which established a compliance schedule for the Corps to achieve the numeric effluent limitations in Permit 19. Id. at 7013-14.
"Effluent" refers to waste materials or pollutants that are discharged into the river. Simply put, "strict numeric effluent limits" are limits on the amount of specific types of pollutants or waste materials that are allowed to be discharged into the river.
Permit 19 also includes a standard "bypass" provision that allows discharge in violation of the permit if the discharge is unavoidable to prevent loss of life, personal injury, or severe property damage and where there is no feasible alternative to the bypass. See 40 C.F.R. § 122.41(m)(4)(i)(A) (B). The Corps believes that such a bypass is not likely to occur more than once, if at all, during the five-year term of Permit 19. See NMFS Suppl. at 2396. The FFCA requires that in the event that a bypass discharge is necessary during the spring spawning season, the Corps is required to attempt to slow the rate of the discharge so that it occurs over a 72-hour period in order to dilute the impact of the discharge. See EPA Suppl. at 7015 ¶ 26. The Corps must also notify the Marine Fisheries Service in advance of any spawning season bypass discharge. See NMFS Suppl. at 2428.
Consultation Regarding the Impact of Discharges Under Permit 19 on Shortnose Sturgeon
The EPA and the Marine Fisheries Service engaged in informal consultation regarding discharge effects on shortnose sturgeon after the issuance of the first draft permit in March 2002. See NMFS Suppl. at 746, 792, 817. In June 2002, the EPA and the Marine Fisheries Service entered formal consultation regarding that first draft permit. The EPA prepared a biological evaluation (also called a biological assessment, hereinafter referred to as a "BA") on the possible effects on shortnose sturgeon of the Washington Aqueduct discharges as provided for by the first draft permit. See id. at 862-78. This formal consultation continued and eventually resulted in the Marine Fisheries Service's issuance on November 5, 2002 of a final BiOp regarding the discharges under the first draft permit. See id. at 1154-56. This BiOp concluded that the issuance of the first draft permit may adversely affect shortnose sturgeon eggs and larvae, but was not likely to jeopardize the continued existence of the Chesapeake Bay DPS (a particular population) of shortnose sturgeon. See id. at 2390.
The Marine Fisheries Service and the EPA engaged in informal consultation with regard to the impact on shortnose sturgeon of the second draft permit and the FFCA. See id. at 1400, 1416, 1443, 1445. On March 4, 2003, the Corps notified the EPA that it had voluntarily suspended discharges effective March 4, 2003 through June 15, 2003, in light of the second draft permit and the anticipation of the issuance of the final Permit 19. See EPA Suppl. 6748. Formal consultation, however, was re-initiated in April 2003, because the Marine Fisheries Service concluded that changes between the first and second draft permits significantly affected the analysis in the original BiOp. See NMFS Suppl. at 228, 1847-48. On July 14, 2003, the Marine Fisheries Service issued a new BiOp ("2003 BiOp") regarding the impacts of the discharges under the final Permit 19 and the FFCA on shortnose sturgeon. See id. at 2388. The Marine Fisheries Service ultimately concluded in its 2003 BiOp that the continued existence of the shortnose sturgeon is not likely to be jeopardized by discharges under Permit 19, taking into account the FFCA and the possibility of "bypass" discharge. See id. at 2425.
Permit 19 was issued on March 14, 2003 and became effective on April 15, 2003.
B. Woodrow Wilson Bridge
Plaintiff also challenges agency actions and decisions regarding the impact of Woodrow Wilson Bridge demolition and construction activities on the shortnose sturgeon and the bald eagle. The Woodrow Wilson Bridge Project ("Bridge Project") is administered by the Federal Highway Administration ("Highway Administration"). The purpose of the Bridge Project is to replace the existing bridge with a wider structure and to make improvements to four interchanges, two on the Maryland side of the Potomac River and two on the Virginia side of the Potomac.See NMFS at 5. The Bridge Project activities most notably include blasting to demolish the existing bridge, dredging of the river to facilitate demolition and construction, and pile driving.
Consultation Regarding Impact on Shortnose Sturgeon
The Marine Fisheries Service advised the Highway Administration that shortnose sturgeon may be present in the project area. Consequently, the Highway Administration prepared a BA analyzing the possible effects of the Bridge Project on sturgeon. See NMFS at 25. The Marine Fisheries Service advised the Highway Administration that the main potential for adverse effects on shortnose sturgeon would be from hydraulic dredging of the river or explosive demolition (blasting). See id at 2. Therefore, the Highway Administration modified its plans to then include mechanical dredging only between October 16 and February 14, instead of hydraulic dredging. See id. In December 1999, the Highway Administration submitted a draft BA, and in response, the Marine Fisheries Service recommended measures to avoid adverse effects on shortnose sturgeon from blasting. See Fed. Highway Administration at 5592 ("FHWA"). These recommendations included time of year restrictions, double-walled dewatered cofferdams, peak pressure levels, and scare measures.See id. Accordingly, the Highway Administration modified its plans by incorporating these recommendations and concluded in its final BA that the Bridge Project was not likely to adversely affect shortnose sturgeon. See NMFS at 25, 26. Specifically, the BA provided that the recommended protective measures were to be applied within a 140 foot "zone of mortality" that had been determined partially in reliance on test blasts done in the Wilmington Harbor. See NMFS at 30. Additionally, the BA concluded that the resuspension or displacement of sediment as a result of blasting should not impact shortnose sturgeon. See id. at 27. In a February 2000 letter, the Marine Fisheries Service ultimately concurred with the Highway Administration's BA assessments and "not likely to adversely affect" conclusion.See NMFS 24, 26.
Pile driving, which had not been considered in the original BA, began in August 2001 and resulted in substantial fish mortality, though no shortnose sturgeon were observed. See FHWA Suppl. at 3140; NMFS Suppl. at 2440. Therefore, the Highway Administration formally reinitiated consultation with the Marine Fisheries Service on January 13, 2003, and prepared a supplement to the original BA that focused on the effects of pile driving on shortnose sturgeon. See FHWA Suppl. at 3140. After monitoring and testing techniques that minimize potential effects on fish from pile driving, the Highway Administration determined the Bridge Project would use a bubble curtain system while pile driving to reduce the potential effects. See id. at 3140, 3152. The Highway Administration concluded in its BA supplement that in light of the new pile driving protective measures, the Bridge Project still was not likely to adversely affect the shortnose sturgeon. The Marine Fisheries Service concurred in writing with this conclusion. See NMFS Suppl. at 2614. Both the Marine Fisheries Service and the Highway Administration agreed that the terms and conditions of the original BA remained in effect as well. See FHWA Suppl. at 3197.
Consultation Regarding Impact on Bald Eagles
The Fish and Wildlife Service notified the Highway Administration that a bald eagle nest was present one-half mile from the Bridge Project area around 1998. See FWS Suppl. at 5324. The Fish and Wildlife Service and the Highway Administration engaged in almost two years of informal and formal consultation, which resulted in the Fish and Wildlife Service issuing its first BiOp regarding the impact of the Bridge Project on bald eagles on April 14, 2000. See FWS 1-27. The first BiOp concluded that the Bridge Project might disrupt the breeding of one pair of bald eagles, but that it would not jeopardize the continued existence of the species. Id. at 12. This BiOp also authorized the incidental taking of breeding bald eagles resulting from the Bridge Project. Id. at 13. At some point after issuance of the first BiOp, the breeding pair's nest was relocated and an increase in their nest productivity was observed. See FWS Suppl. at 5325. This increase in nest productivity suggested that more eagle young and eggs might be exposed to the Bridge Project than originally thought, and therefore, the amount of incidental take authorized by the first BiOp might be exceeded. See id. Additionally, modifications to the Bridge Project had been proposed. See id at 5287-88. Therefore, the Highway Administration re-initiated formal consultation to address these changes, which resulted in the Fish and Wildlife Service issuing a new BiOp in 2003. The analysis of the Bridge Project's effects on bald eagles remained almost the same as discussed in the first BiOp. See id. at 5326. The new BiOp revised the incidental take coverage to increase the number of eggs or young allowed to be taken. See id. The conclusion, in light of these changes, remained that the Bridge Project will not jeopardize the continued existence of the bald eagle species. See id. at 5325.
STANDARD OF REVIEW
Both Plaintiff and Defendants seek summary judgment. According to Federal Rule of Civil Procedure ("Fed.R.Civ.P.") 56(c) and Local Civil Rule 56.1, summary judgment is appropriate where there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter or law. In cases such as this one where a court is reviewing a decision of an administrative agency, however, the standard set forth in Fed.R.Civ.Pro. 56 is not applicable. See Home Builders Ass'n. of N. Cal. v. United States Fish and Wildlife Serv., 268 F. Supp. 2d 1197, 1206-07 (E.D. Cal. 2003) (citing Occidental Eng'g Co. v. INS, 753 F.2d 766, 769-70 (9th Cir. 1985)) (stating that in an action challenging the final decision of an administrative agency, "the court does not utilize the standard analysis [outlined in Fed.R.Civ.P. 56(c)]"); Defenders of Wildlife v. Babbitt, 130 F. Supp. 2d 121,124 (D.D.C. 2001) (recognizing that summary judgment is appropriate for resolving a challenge to a federal agency's administrative decision, "even though the Court does not employ the standard of review set forth in Rule 56, Fed.R.Civ.P."). In reviewing an agency action, the agency, and not the court, is the finder of fact. See Home Builders Ass'n, 268 F. Supp. 2d at 1207 (quoting Occidental, 753 F.2d at 769-70)). Thus, in deciding motions for summary judgment in cases where agency action is challenged, the "function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." Id.
In this case, Plaintiff's claims challenging agency actions are reviewable under the standards set forth in the Administrative Procedure Act ("APA"), 5 U.S.C. § 701, et seq. See Bennett v. Spear, 520 U.S. 154, 174-79 (1997) (holding that petitioners' claim alleging defendants violated § 7 of the ESA through the issuance of a challenged Biological Opinion is reviewable under the APA). The Court of Appeals for the District of Columbia has held that "the appropriate standard of review under the ESA is the arbitrary and capricious standard provided by the APA."Cabinet Mountains Wilderness v. Peterson, 685 F.2d 678, 686 (D.C. Cir. 1982) (concluding that agency action challenged under the ESA is not subject to de novo review, but rather to the APA's "arbitrary and capricious" standard of review). See also Babbit, 130 F. Supp. 2d at 124 (applying the APA arbitrary and capricious standard of review to a claim alleging violation of the ESA).
Review of agency action under the APA is highly deferential to the agency. As this Circuit has explained, "[i]nquiry under the arbitrary and capricious standard is narrow; we review only to ensure that the agency `examined the relevant data and articulated a satisfactory explanation for its action' and will not `substitute our judgment for that of the agency.'" Hüls Am., Inc. v. Browner, 83 F.3d 445, 452 (D.C. Cir. 1996) (quotingMotor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). This Circuit further asserts that the court shall "give an extreme degree of deference to the agency when it `is evaluating scientific data within its technical expertise,'" as with the instant case. Id. (citingInternational Fabricare Inst. v. U.S.E.P.A., 972 F.2d 384, 389 (D.C. Cir. 1992)). The function of the court is not to "resolve disagreement among the experts or to judge the merits of competing expert views." Am. Trucking Ass'n, Inc. v. EPA, 283 F.3d 355, 362 (D.C. Cir. 2002). Rather, the court's task is limited to
ascertaining that the choices made by the [agency] were reasonable and supported by the record. That the evidence in the record may also support other conclusions, even those that are inconsistent with the [agency's], does not prevent [the court] from concluding that [the] decisions were rational and supported by the record.Id.
DISCUSSION
I. Defendants' Motion to Strike Exhibits 3, 4, and 5Before considering the cross-motions for summary judgment, this Court must first address Defendants' Motion to Strike Exhibits 3, 4, and 5. Defendants challenge the inclusion of Exhibits 3, 4, and 5 in Plaintiff's summary judgment motion because the exhibits are not part of the administrative record. See Defs.' Mot. to Strike Exs. 3, 4, and 5 ("Defs.' Mot. to Strike") at 1. Exhibit 3 to Plaintiff's Motion for Summary Judgment is a Field Inspection Report from the Maryland Department of the Environment dated September 17, 2001. See Pl.'s Mot. for Summ. J., Ex. 3. The report details the inspection of Outfall 005, which had been inspected for compliance with the state-issued NPDES Permit covering that outfall. See Def's Mot. to Strike at 3.
Exhibit 4 to Plaintiff's Motion for Summary Judgment is a Sediment Survey of Priority Pollutants in the District of Columbia Waters dated March 13, 1990. See Pl.'s Mot. for Summ. J., Ex. 4. The survey was prepared for the Interstate Commission on the Potomac River Basin ("ICPRB") and contains data on sediment accumulation downstream from the Washington Aqueduct. Plaintiff claims that "although the [Marine Fisheries Service] considered a D.C. Department of Health survey which referenced ICPRB research, [the Marine Fisheries Service] did not include this sediment data in the record." See Pl.'s Opp'n to Defs.' Mot. to Strike Exs. 3, 4, and 5 ("Pl.'s Opp'n to Mot. to Strike") at 2.
Exhibit 5 to Plaintiff's Motion for Summary Judgment is a report entitled "Wilmington Harbor Blast Effect Mitigation Tests: Results of Sturgeon Monitoring and Fish Caging Experiments," prepared by Mary Moser. See Pl.'s Mot. for Summ. J., Ex. 5. Plaintiff claims that at the time of the Highway Administration's BA regarding demolition and construction activities for the Bridge Project, Moser's report "was the only scientific research available that actually measured the physical effects of blasting on sturgeon." See Pl.'s Opp'n to Mot. to Strike at 2. Plaintiff specifically believes Exhibit 5 is relevant because it shows (1) sturgeon can suffer injury from blasting at distances greater than 140 feet, and (2) sturgeon are negatively buoyant and therefore would not be expected to float to the surface when dead. See id.
The APA states that in reviewing an agency action, the "court shall review the whole record or those parts of it cited by a party. . . ." 5 U.S.C. § 706. "[J]udicial review of agency action is normally confined to the full administrative record before the agency at the time the decision was made. The focal point for judicial review should be the administrative record already in existence, not some new record completed initially in the reviewing court." Environmental Def. Fund, Inc. v. Costle, 657 F.2d 275, 284 (D.C. Cir. 1981) (citing Camp v. Pitts, 411 U.S. 138, 142 (1973).
In explaining the rationale behind the general rule declining supplementation of the administrative record, the Court has stated,
[J]udicial reliance on an agency's stated rationale and findings is central to a harmonious relationship between agency and court, one which recognizes that the agency and not the court is the principal decision maker. Were courts cavalierly to supplement the record, they would be tempted to second-guess agency decisions in the belief that they were better informed than the administrators empowered by Congress and appointed by the President. The accepted deference of court to agency would be turned on its head. . . .AMFAC Resorts, L.L.C. v. United States Dep't of the Interior, 143 F. Supp. 2d 7, 11 (D.D.C. 2001) (quoting San Luis Obispo Mothers for Peace v. NRC, 789 F. 29, 26 (D.C. Cir. 1986) (en banc)).
Thus, supplementation of the administrative record is the exception, not the norm. There are, however, some instances where a court may deem supplementation necessary. This Circuit has recognized four such instances. See e.g. James Madison Ltd, Inc. v. Ludwig, 82 F.3d 1085, 1095 (D.C. Cir. 1996); AMFAC Resorts, 143 F. Supp. 2d at 11 ("In [the D.C.] Circuit, four separate exceptions are well established."). First, supplementation of the record is warranted if the court needs "`background information' in order to determine whether the agency considered all of the relevant factors." Ludwig, 82 F.3d at 1095 (citing Environmental Def. Fund, Inc, 657 F.2d at 285);AMFAC Resorts, 143 F. Supp. 2d at 11. Second, a court may look beyond the administrative record if it appears the "agency deliberately or negligently excluded documents that may have been adverse to its decision." Ludwig, 82 F.3d at 1095 (citing Kent County v. EPA, 963 F.2d 391, 395-96 (D.C. Cir. 1992)); accord AMFAC Resorts, 143 F. Supp. 2d at 11 (quoting Kent County, 963 F.2d at 395-96). Third, extra-record review is justified "where the agency failed `to explain administrative action so as to frustrate effective judicial review.'" Ludwig, 82 F.3d at 1095 (quoting Camp v. Pitts, 411 U.S. 138, 142-43 (1973));AMFAC Resorts, 143 F. Supp. 2d at 11. Finally, a court may supplement the administrative record "where there is a `strong showing of bad faith or improper behavior' on the part of the agency." AMFAC Resorts, 143 F. Supp. 2d at 11-12 (citing Citizens to Pres. Overton Park v. Volpe, 401 U.S. 402, 420 (1971)); see also Ludwig, 82 F.3d at 1095 (citing Overton Park, 401 U.S. at 420). Accordingly, Plaintiff must demonstrate that each of the challenged exhibits meets at least one of the exceptions listed above in order to be considered by this Court.
A. Background Information Exception
Pursuant to the first exception to the general rule of denying supplementation of the record, Plaintiff contends that Exhibits 3, 4, and 5 should be considered by this Court because they show that Defendants did not consider all relevant factors in reaching their decisions regarding the Washington Aqueduct and the Bridge Project. See Pl.'s Opp'n to Mot. to Strike at 3-5. Although in some instances it may be necessary to look beyond the administrative record for background information, there "is no occasion for a judicial probe beyond the confines of a record which affords enough explanation to indicate whether the agency considered all relevant factors." Environmental Def. Fund, Inc, 657 F.2d at 286.
Plaintiff claims Exhibit 3, namely its chlorine discharge documentation, should be considered because it shows the Marine Fisheries Service did not consider all relevant factors in evaluating the environmental baseline for the shortnose sturgeon with regard to the Washington Aqueduct BiOp. See Pl.'s Opp'n to Mot. to Strike at 3-5. The Marine Fisheries Service, however, evaluated water quality as a factor in determining the environmental baseline, which would have captured any chlorine discharges relevant to the Washington Aqueduct discharges that are documented in Exhibit 3. See NMFS Suppl. at 2404; see also Defs.' Reply to Mot. to Strike at 2-3. Therefore, the Marine Fisheries Service did consider chlorine discharges through evaluation of water quality.
Plaintiff also contends that since Exhibit 4 is not included in the record, the Defendants did not consider all relevant information concerning the effects of sediment accumulation on the shortnose sturgeon in the Washington Aqueduct BiOp. The Marine Fisheries Service refers to D.C. Department of Health assessments of the Potomac River in the BiOp. See NMFS Suppl. at 2406. These D.C. Department of Health assessments in turn specifically refer to Exhibit 4. See id. Exhibit 4, therefore, contains duplicative information and does not prove that the Marine Fisheries Service failed to consider all relevant factors.
Plaintiff uses Exhibit 5 to assert that the Marine Fisheries Service did not adequately take into account the blasting of the Bridge Project on sturgeon. See Pl.'s Opp'n to Mot. To Strike at 5. Exhibit 5 is a report describing tests done in Wilmington, North Carolina, concerning the effects of underwater explosive use on shortnose sturgeon. Those same tests, although not this specific report concerning those tests, were considered by the Marine Fisheries Service as documented in its BA. See NMFS at 15-16. Since the Marine Fisheries Service did consider the scientific data contained in Exhibit 5, that exhibit will not be considered by this Court based the background information exception. Thus, none of the challenged exhibits fall within the first exception.
B. Deliberate or Negligent Exclusion of Documents Adverse to Agency's Decision
This Circuit has recognized that supplementation of the administrative record may be appropriate where the agency excluded evidence from the record that is adverse to its decision. See Ludwig, 82 F.3d at 1095. In other words, an agency may not skew the record by excluding significant yet unfavorable information. See Environmental Def. Fund, Inc. v. Blum, 458 F. Supp. 650, 661 (D.D.C. 1978). In addressing this second exception, Plaintiff specifically claims,
"Exhibit 3 documents discharges of chlorine in excess of lawful limits. Exhibit 4 demonstrates the extent of accumulated sediments contaminated by pollutants contained in [Washington] Aqueduct discharges. And Exhibit 5 undermines several assumptions regarding impacts of blasting on shortnose sturgeon and suggests that shortnose sturgeon will be adversely affected by project activities."See Pl.'s Opp'n to Mot. to Strike at 6.
Exhibit 3 may show high chlorine levels as Plaintiff asserts. As mentioned earlier, however, the Marine Fisheries Service's assessment of water quality and identification of point source discharges that contribute to poor water quality for the purpose of evaluating the environmental baseline would have reflected any chlorine levels present. See NMFS Suppl. 2404-06. The information in Exhibit 4 indicating that Washington Aqueduct discharges have contributed to contaminated sediments likewise was not excluded from the record. As noted earlier, the Marine Fisheries Service, in its BiOp, referred to a D.C. Department of Health survey that specifically referred to Exhibit 4 and made recommendations in light of that information. See NMFS Suppl. 2406. Exhibit 5 is simply Moser's description of the Wilmington tests and the test results. The Marine Fisheries Service and the Highway Administration took into account these same tests by referring to a report that had been prepared by the Wilmington District U.S. Army Corps of Engineers. See NMFS at 15-16. Further, the information in Exhibit 5 itself is not adverse to the decisions made regarding the Bridge Project, but the interpretation Plaintiff gives to that information is potentially adverse. The specific manner in which an agency interprets this type of scientific data in formulating decisions and recommendations is the controlling interpretation, as the Court must defer to the agency's expertise. See Hüls Am., Inc, 83 F.3d at 452 ("[W]e will give an extreme degree of deference to the agency when it `is evaluating scientific data with in its technical expertise.'") (quoting International Fabricare Inst. V.U.S.E.P.A., 972 F.2d 384, 389 (D.C. Cir 1992)). The information in each of the exhibits was not excluded from the record, nor is it "adverse" to the agency's decision. Therefore, this Court will not supplement the record with Exhibits 3, 4, and 5 based on this exception.
C. Agency Failed to Explain its Action so as to Frustrate Judicial Review
The third exception to the general rule against supplementation of the administrative record, as noted above, is where the record is so inadequate so as to frustrate judicial review. See Ludwig, 82 F.3d at 1095. In other words, supplementation is allowed where the record provides no contemporaneous explanation for the agency's action. See id. As long as the determinative reason for the agency action is indicated, the length of the contemporary explanation given by the agency is irrelevant. See Camp v. Pitts, 411 U.S. 183, 143 (1973) (upholding an agency decision where "[t]he explanation may have been curt, but it surely indicated the determinative reason for the final action taken. . . ."). If a court determines that the agency has failed to explain its decision so as to frustrate judicial review, the proper course of action is not to gather evidence de novo, but rather to "obtain from the agency, either through affidavits or testimony, such additional explanation of the reasons for the agency decision as may prove necessary." Id. at 142-43.
In the instant case, Plaintiff does not contend that Exhibits 3, 4, and 5 should be admitted on this ground. See Pl.'s Opp'n to Mot. To Strike. Further, the decisions by the relevant agencies are explained fairly extensively in the BiOps and BAs. Even if this Court were to determine that the agencies had failed to explain their actions, the Court would follow the proper procedure and obtain additional information from the agencies themselves. Therefore, Exhibits 3, 4, and 5 may not be considered by this Court based on this exception.
D. Strong Showing of Bad Faith
The fourth exception requires a "strong showing of bad faith or improper behavior on the part of the agency." See AMFAC Resorts, 143 F. Supp. 2d at 11-12 (quoting Community for Creative Non-Violence v. Lujan, 908 F.2d 992, 997 (D.C. Cir. 1990). Since no bad faith or improper behavior is alleged here, Exhibits 3, 4, and 5 cannot be considered by this Court on that ground. Because none of the four exceptions to the general rule of declining supplementation of the administrative record are implicated, this Court will strike Exhibits 3, 4, and 5.
II. Cross Motions for Summary Judgment
A. Washington Aqueduct Claims
Plaintiff moves for summary judgement based on a number of claims relating to the Washington Aqueduct discharges. First, Plaintiff claims that the EPA's designation as lead agency for the purposes of consultation is invalid, and therefore, the Corps violated the consultation requirements under 16 U.S.C. § 1536. Next, Plaintiff contends that the Marine Fisheries Service's BiOp on the impacts on shortnose sturgeon of Washington Aqueduct discharges allowed by Permit 19 is arbitrary and capricious. Finally, Plaintiff claims that the Corps has violated the ESA by unlawful "take" of shortnose sturgeon. Defendant disagrees with Plaintiff and asks that summary judgment be granted in its favor asserting that they have complied with all ESA requirements and the BiOp was not arbitrary and capricious.
1. The EPA's Designation as "Lead Agency" is Valid
Plaintiff argues that the Corps has violated the ESA's consultation requirements under 16 U.S.C. § 1536 by failing to consult with the Marine Fisheries Service regarding the effects of the Washington Aqueduct discharges on shortnose sturgeon.See Pl.'s Mot. for Summ. J. at 29-30. Defendants assert that the EPA acted as the "lead agency" regarding consultation with the Marine Fisheries Service on the effects of the Washington Aqueduct discharges under Permit 19, and therefore, the Corps was not required to perform a separate consultation. See Defs.' Mot. for Summ. J. at 23.
With respect to consultation, where more than one agency is involved in a particular action, 50 C.F.R. § 402.07 provides that "the consultation and conference responsibilities may be fulfilled through a lead agency." The lead agency determination should take into account "the time sequence in which the agencies would become involved, the magnitude of their respective involvement, and their relative expertise with respect to the environmental effects of the action." 50 C.F.R. § 402.07.
Since there is no practical difference for purposes of consultation between the actual Washington Aqueduct discharges that the Corps regulates pursuant to Permit 19 and the EPA's issuance of Permit 19, it would be unnecessary and inefficient for both the Corps and the EPA to consult on the matter with the Marine Fisheries Service. Considering the EPA's role in issuing Permit 19, which authorizes the discharges, it is reasonable for the EPA to be designated the lead agency. The EPA adhered to the regulations and formally notified the Marine Fisheries Service in writing that it "has been and will continue to be the designated lead Federal agency" for purposes of consultation regarding the impact of the Washington Aqueduct discharges. NMFS Suppl. at 2358; see also Corps Suppl. at 367. Thus, the EPA was properly designated the lead agency for purposes of consultation with the Marine Fisheries Service regarding the Washington Aqueduct discharges, and the Corps was not required to separately engage in consultation. Therefore, the Corps fulfilled the consultation requirements under 16 U.S.C. § 1536.
It is worth noting that the Corps was not inactive in the consultation process. The Corps provided the Marine Fisheries Service with data and information relevant to the consultation and also participated in conference calls with the Marine Fisheries Service and the EPA regarding the consultation. See Defs.' Mot. for Summ. J. at 24-25.
2. The Marine Fisheries Service's BiOp Conclusion is Not Arbitrary and Capricious
Plaintiff argues that the Marine Fisheries Service's 2003 BiOp concluding that the Washington Aqueduct discharges pursuant to Permit 19 would not jeopardize the continued existence of the shortnose sturgeon is arbitrary and capricious. Initially, it is important to note that this Court cannot hear Plaintiff's claim in so far as it challenges the EPA's determination of the restrictions, namely the effluent limits, contained in Permit 19.See Mem. Op. on May 22, 2001 at 10-12 (recognizing that this Court does not have jurisdiction to hear any claims regarding the issuance, or validity, of Permit 19). Rather, the issue is whether the discharges consistent with Permit 19 and the FFCA are likely to jeopardize the continued existence of the shortnose sturgeon. See id.; Defs.' Reply at 10.
Plaintiff challenges the Marine Fisheries Service's evaluation of the environmental baseline included in the 2003 BiOp. See Pl.'s Mot. for Summ. J. at 17-18. The "environmental baseline" is one of the elements included in a BiOp. See 50 C.F.R. § 402.14(g)(2), (3), (4). It includes,
the past and present impacts of all Federal, State, or private actions and other human activities in the action area, the anticipated impacts of all proposed Federal projects in the action area that have already undergone formal or early section 7 consultation, and the impact of State or private actions which are contemporaneous with the consultation in process.50 C.F.R. § 402.02. The environmental baseline, however, does not include the effects of the action under review in the consultation, in this case the effects of the discharges authorized by Permit 19 and the FFCA. 50 C.F.R. § 402.02. Plainly stated, the environmental baseline is an evaluation of the current status of the environment in which the species exists. Plaintiff claims that the Marine Fisheries Service failed to take into account specific previous discharges during shortnose sturgeon spawning season that have allegedly "taken" shortnose sturgeon eggs and larvae. See Pl.'s Mot. for Summ. J. at 17. To the extent that these specific discharges have impacted the river quality, this would have been captured by the water quality studies described below. Plaintiff asserts that "[the Marine Fisheries Service] appears to have given no consideration whatsoever to the fact that past discharges [during the spawning season] have "taken" shortnose sturgeon eggs and larvae. . . ." Pl.'s Mot. for Summ. J. at 17. This assertion is inaccurate, as the detrimental effects of discharges during spawning season were certainly taken into consideration as shown by the specific ban on discharges during the spawning season provided in the final Permit 19. See EPA Suppl. at 6783-6809.
Further, Plaintiff points to other specific discharge events that the Marine Fisheries Service allegedly did not take into account when evaluating the environmental baseline. See id. at 17-18. To support part of this challenge, Plaintiff relies on Exhibit 3. See id. Exhibit 3 is not part of the administrative record and, as reasoned above, will not be considered by this Court. As for the portion of this allegation that is not based on Exhibit 3, any effects of past discharges for purposes of evaluating the environmental baseline would have been captured by information to which the Marine Fisheries Service referred. This includes biennial assessments of the Potomac River by the D.C. Department of Health and a report that had been prepared for the Corps by a private contractor entitled Water Quality Studies in the Vicinity of the Washington Aqueduct. See Defs.' Mot. for Summ. J. at 27-28 (citing various portions of NMFS Suppl.). To specifically identify and describe each and every discharge or source that contributed to the present status of the Potomac River is unnecessary, as any relevant effects from past activities would have been captured by these water quality studies. Therefore, the Marine Fisheries Service's analysis of the environmental baseline was reasonable to provide an adequate basis for evaluation of the effects of the discharges authorized by Permit 19.
Second, Plaintiff claims that in its 2003 BiOp the Marine Fisheries Service failed to adequately consider the impacts on shortnose sturgeon from discharges outside of the spawning season. See Pl.'s Mot. for Summ. J. at 19. The Marine Fisheries Service, however, considered the effects from discharges consistent with Permit 19 outside the spawning season. First, the Marine Fisheries Service concluded that shortnose sturgeon are not likely to be in the vicinity of the Washington Aqueduct discharges outside of the spawning season. The Marine Fisheries Service reasons that spawning adult shortnose sturgeon spend most of the year far downstream from the Washington Aqueduct and are believed to visit the area of the Washington Aqueduct only during a brief window in the spring when conditions are suitable for spawning. See NMFS Suppl. at 2424, cited in Defs.' Reply at 3-4. Because shortnose sturgeon are not believed to be in the area of the Washington Aqueduct outside of the spawning season, the Marine Fisheries Service's conclusion that discharges outside the spawning season will not likely jeopardize the continued existence of the shortnose sturgeon is reasonable. Plaintiff further claims that the effects of authorized discharges outside of the spawning season will linger and will jeopardize shortnose sturgeon during the spawning season. See Pl.'s Mot. for Summ. J. at 19-20. The Marine Fisheries Service, however, concluded that because of the dynamic nature of the river, discharges outside of the spawning season would not affect sturgeon or their eggs and larvae during the spawning season. This determination is based on observations of the regular movement and dispersal of sediments in the Potomac River. See NMFS Suppl. at 2413, cited in Defs.' Mot. for Summ. J. at 35 and Pl.'s Mot. for Summ. J. at 19. Further, the Marine Fisheries Service notes that the discharges are likely to be flushed and scoured during the one month or more that would pass between the end of authorized discharges and the beginning of the spawning season. See NMFS Suppl. at 2413, cited in Defs.' Reply at 4. Therefore, the Marine Fisheries Services adequately took into account the effects of discharges outside of the spawning season in the 2003 BiOp. The conclusion that discharges outside of the spawning season would not jeopardize the continued existence of shortnose sturgeon is supported by the administrative record and is not arbitrary and capricious.
Third, Plaintiff alleges that in issuing the 2003 BiOp, the Marine Fisheries Service failed to adequately address the effects on shortnose sturgeon from contaminants in the sludge, the accumulation of sediments, and the toxicity resulting from discharges under Permit 19. See Pl.'s Mot. for Summ. J. at 21-29. Plaintiff makes the majority of this argument by indirectly referring to the inadequacy of the process by which the effluent limits and restrictions in Permit 19 were obtained. This issue, as mentioned above, is not an issue over which this Court has jurisdiction. See Mem. Op. on May 22, 2001 at 10-12 (recognizing that this Court does not have jurisdiction to hear any claims regarding the issuance, or validity, of Permit 19). Plaintiff also relies on Exhibit 4 to challenge the Marine Fisheries Service's consideration of contaminants in sediment.See Pl.'s Mot. for Summ. J. at 26. As explained earlier, Exhibit 4 is not part of the administrative record and will not be considered by this Court. Further, the Marine Fisheries Service has demonstrated that it recognized that the effluent limit averages and maximums established by Permit 19 may not be established immediately. See Defs.' Mot. for Summ. J. at 38 (referencing NMFS Suppl. 2421). Therefore, the Marine Fisheries Service has assumed that higher effluent levels would occur while the FFCA was applicable. See id. The record indicates, however, that even these higher effluent levels would have limited effects on sturgeon because of quick dilution and return to background effluent levels within a few hours of a discharge. See id. Thus, the Marine Fisheries Service's determinations are adequately supported by the record, and this Court will defer to the agency's expertise in making this type of scientific finding. See Hüls Am., Inc., 83 F.3d at 452 (the court shall "give an extreme degree of deference to the agency when it `is evaluating scientific data within its technical expertise.'").
As discussed previously, FFCA allows establishment of compliance with the permit's effluent limits over a period of years.
For the reasons stated above, the Marine Fisheries Service's conclusion in the 2003 BiOp that discharges pursuant to Permit 19 would not jeopardize the continued existence of the shortnose sturgeon was rational in light of the administrative record. In other words, the 2003 BiOp was not arbitrary and capricious, and this Court will defer to the Marine Fisheries Service's conclusion.
3. There Was No Irreversible or Irretrievable Commitment of Resources During Consultation on the Washington Aqueduct Discharges
Plaintiff further claims that the issuance of the final Permit 19 prior to the conclusion of formal consultation constituted an "irreversible or irretrievable commitment of resources" in violation of 16 U.S.C. § 1536(d), also referred to as ESA § 7(d).See Pl.'s Mot. for Summ. J. at 15-16. Specifically, 16 U.S.C. § 1536(d) prohibits a federal agency from making "any irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures . . ." The purpose of this restriction is to ensure that the status quo is maintained throughout the consultation process.Lane County Audubon Soc. v. Jamison, 958 F.2d 290, 294 (9th Cir. 1992) ("In order to maintain the status quo, section 7(d) forbids `irreversible or irretrievable commitment of resources' during the consultation period."). In describing what constitutes an "irreversible or irretrievable commitment of resources" that would have the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures," the court in North Slope Borough v. Andrus explained that,
Congress enacted § 7(d) to preclude the investments of large sums of money in any endeavor if (1) at the time of the investment there was a reasonable likelihood that the project, at any stage of development, would [be likely to jeopardize the continued existence of an endangered or threatened species or result in the destruction or adverse modification of habitat of such species] and (2) that investment was not salvageable (i.e., it could not be applied to either an alternative approach to the original endeavor or to another project).486 F. Supp. 332, 356 (D.D.C. 1980), aff'd in part by North Slope Borough v. Andrus, 642 F.2d 589 (D.C. Cir. 1980).
The issuance of Permit 19 does not fit into what Congress intended as an "irreversible or irretrievable commitment of resources" in part because the EPA retains authority to reopen and modify the permit or rescind it altogether. See EPA Suppl. at 6885. In other words, a permit may be revised to provide "alternative measures" that otherwise would not be available if the permit were a true "irreversible or irretrievable commitment of resources" under § 1536(d).
Plaintiff further claims that the actual discharges into the Potomac River are irreversible or irretrievable commitments of resources. Pl.'s Mot. for Summ. J. at 16. The discharges, however, are not what Congress meant by "irreversible or irretrievable commitment of resources." The discharges are not similar to significant investments into a project that cannot be recovered, or would be wasted, if it were determined that the project jeopardized the continued existence of an endangered species. See North Slope Borough, 486 F. Supp. at 356. Further, the discharges do not preclude the formulation or implementation of alternative measures that could be taken with regard to the operation of the Washington Aqueduct. Therefore, there was no "irreversible or irretrievable commitment of resources" in violation of 16 U.S.C. § 1536(d) during the consultation regarding the impact of the discharges on shortnose sturgeon.
4. The Corps Has Not Violated the ESA by Unlawful "Taking" of Shortnose Sturgeon
Plaintiff asserts that "the Corps committed, and will continue to commit, unlawful takes of endangered shortnose sturgeon as a result of direct and indirect effects of past and ongoing discharges. . . ." Pl.'s Mot. for Summ. J. at 30. As noted above, 16 U.S.C. § 1538 prohibits the unlawful taking of endangered species. Incidental takings authorized in conjunction with a BiOp, however, are not considered prohibited takings under the ESA. See 16 U.S.C. § 1536(o)(2). Thus, any take of shortnose sturgeon in compliance with Permit 19's Incidental Take Statement is authorized. Plaintiff does not claim that any take of sturgeon exceeded the amount authorized. Additionally, Plaintiff provides general allegations of taking but provides no evidence whatsoever of any specific or actual take of shortnose sturgeon as a result of the Washington Aqueduct discharges. Therefore, the Court holds that defendants have not violated the take provision of the ESA, 16 U.S.C. § 1538.
B. Woodrow Wilson Bridge Claims
Plaintiff's contentions regarding the Bridge Project can be separated into two basic claims. First, Plaintiff contends that the Highway Administration's most recent BA determination that the Bridge Project was not likely to affect shortnose sturgeon and the Marine Fisheries Service's concurrence with that determination were arbitrary and capricious. See Pl.'s Mot. for Summ. J. at 31-41. Second, Plaintiff asserts that the Fish and Wildlife Service's most recent BiOp concluding that the Bridge Project will not jeopardize the continued existence of the bald eagle is arbitrary and capricious. See id. at 43-45.
1. BA Concerning the Shortnose Sturgeon is Not Arbitrary and Capricious
As noted earlier, the Highway Administration prepared an original BA in 2000 concerning the effects of the Bridge Project, namely underwater blasting and dredging. That original BA was supplemented in 2003, however, because the original had not considered the effects of pile driving on shortnose sturgeon. The Highway Administration's supplemental BA ultimately concluded that the Bridge Project was not likely to adversely affect shortnose sturgeon, and the Marine Fisheries Service concurred in writing with this conclusion. See Pl.'s Mot. for Summ. J. at 31-2. Plaintiff contends that this conclusion was arbitrary and capricious. Plaintiff specifically claims that the Highway Administration and the Marine Fisheries Service wrongly concluded that the Bridge Project's underwater blasting was not likely to adversely affect the shortnose sturgeon, that changes in the supplemental BA eradicate important restrictions on blasting that had been included in the original BA, and that the Highway Administration and the Marine Fisheries Service wrongly concluded that pile pulling was not likely to adversely affect shortnose sturgeon. See id. at 32.
First, with regard to the underwater blasting conclusion, Plaintiff challenges Marine Fisheries Service and Highway Administration's decision to apply selected protective measures within a 140-foot zone of mortality, claiming it was not large enough to avoid adverse effects to shortnose sturgeon. See Pl.'s Mot. for Summ. J. at 33. Plaintiff relies on Exhibit 5, Moser's report on underwater blast tests conducted at Wilmington Harbor. See id. Exhibit 5, however, was not part of the administrative record and, as discussed earlier, this Court will not consider it. As explained above, although the Marine Fisheries Service may not have considered Moser's report, it did in fact consider the same Wilmington Harbor tests. Therefore, the Marine Fisheries Service used the "best scientific and commercial data available" as required by 16 U.S.C. § 1536(a)(2). The Marine Fisheries Service relied on the interpretation of those tests which established that less than one percent of fish are killed outside a 140-foot zone. See FHWA Suppl. at 227, cited in Defs.' Mot. for Summ. J. at 45. Under the arbitrary and capricious standard, this Court must "give an extreme degree of deference to the agency when it is evaluating scientific data within its technical expertise." See Hüls Am., Inc. v. Browner, 83 F.3d at 452. Therefore, this Court holds that the Marine Fisheries Service's interpretation of the blast tests and its conclusion that the 140-foot zone is sufficient to ensure that the Bridge Project underwater blasts would not likely adversely affect shortnose sturgeon was not arbitrary and capricious.
Another contention of the Plaintiff regarding the underwater blasting conclusion is that the Highway Administration and the Marine Fisheries Service did not properly take into account the effects of resuspension and displacement of sediments and mud waves that occur with the blasting. See Pl.'s Mot. for Summ. J. at 33-34. The original BA, however, contained time-of-year restrictions, which prohibited all blasting from February 15 to July 1 because of potential shortnose sturgeon spawning, allowed restricted blasting from July 2 to September 15, and allowed unrestricted blasting from September 16 to February 14. See NMFS 25 at 31, cited in Defs.' Mot. for Summ. J. at 46. Precautions to be taken during the restricted blasting period include use of double-walled dewatered cofferdams, adherence to pressure wave maximums, and use of charge delays and scare charges. See id. These precautions were adopted to alleviate the effects of the sediment displacement and waves that, without the precautions, would be detrimental to any potentially occurring sturgeon in the Bridge Project area, namely during spawning season. Considering that the areas surrounding the bridge and immediately downstream are not suitable spawning habitats for shortnose sturgeon, see Defs.' Mot. for Summ. J. at 46 (citing the original BA), and given the precautions outlined above, the Marine Fisheries Service and the Highway Administration reasonably took into account the displacement or resuspension of sediments and the mud waves caused by blasting. Thus, the conclusion that blasting would not likely adversely affect shortnose sturgeon was not arbitrary and capricious.
Second, Plaintiff contends that the Highway Administration's supplemental BA conclusion and the Marine Fisheries Service's concurrence were arbitrary and capricious because the supplemental BA eliminates the restrictions mentioned above that were contained in the original BA. See Pl.'s Mot. for Summ. J. at 34-40. The focus of the supplemental BA was the effect of pile driving on shortnose sturgeon. See NMFS Suppl. at 2512, cited in Defs.' Mot. for Summ. J. at 48. This supplemental BA added measures designed to address the effects of pile driving, but there is no language eliminating the need to conform to the previous time-of-year restrictions and precautions outlined in the original BA. Rather, written correspondence confirms that the original restrictions remain in effect. A letter clarifying the Marine Fisheries Service's concurrence with the supplemental BA states that "the addition of measures to reduce impacts to shortnose sturgeon does not change the basis for the original determination conveyed . . ." NMFS Suppl. at 2616, cited in Defs.' Mot. for Summ. J. at 50. Additionally, an e-mail written by an employee of the Marine Fisheries Service clarifies that, "[the Marine Fisheries Service has] not agreed to change anything from the Feb. 2000 letter [which concurs with the original BA, including the restrictions and precautions] and fully expect[s] [the Highway Administration] to fully abide by all conditions specified previously including any time of year restrictions and/or special conditions for blasting work including cofferdams." Pl.'s Mot. for Summ. J. at 39 (quoting the e-mail pertaining to the issue of whether the supplemental BA eliminated the restrictions and precautions contained in the original BA). Further, all federal and state regulatory permits and the demolition contracts for the Bridge Project have incorporated the time-of-year restrictions and precautions on blasting. See Defs.' Mot. for Summ. J. at 50 (citing NMFS Suppl. 2618 and FHWA Suppl. 3013-14, 3380, 3382, 3425-3426). Any remaining confusion that there might be regarding the inclusion of the restrictions on underwater blasting in the supplemental BA has no practical effect because all of those restrictions and precautions from the original BA are contained in the contracts and permits for the project. Thus, it is reasonable to conclude that the restrictions and precautions regarding the Bridge Project's underwater blasting have not been eliminated but rather remained in effect after issuance of the supplemental BA.
Third, Plaintiff claims that the Highway Administration's conclusion and the Marine Fisheries Service's concurrence that pile pulling was not likely to adversely affect the sturgeon is arbitrary and capricious. See Pl.'s Mot. for Summ. J. at 41-42. Specifically, Plaintiff is concerned that the original BA anticipates that pile pulling will occur while shortnose sturgeon "young of the year" could potentially be present in the area.See id. Even though shortnose sturgeon "young of the year" could possibly be present in the area during pile pulling, the Marine Fisheries Service and the Highway Administration made their conclusion taking into account that "once early summer arrives, the [young of the year] would be more mobile and will have developed greater resilience to the surrounding environment." NMFS at 20, cited in Defs.' Mot. for Summ. J. at 54. The Marine Fisheries Service recognized that while "young of the year" may be present at the time of the pile pulling activities, they will have developed to the point where they will not be adversely affected. Id. Thus, the information in the record shows the Highway Administration and the Marine Fisheries Service reasonably, not arbitrarily and capriciously, concluded that pile pulling activities would not adversely affect shortnose sturgeon. For the reasons outlined above, the conclusion in the original BA and supplemental BA that the Bridge Project was not likely to adversely affect shortnose sturgeon is adequately supported by the administrative record, and therefore, is not arbitrary and capricious. 2. The Highway Administration did not Unlawfully "Take" Shortnose Sturgeon in Violation of 16 U.S.C. § 1538
Plaintiff's final argument regarding the Bridge Project as it pertains to shortnose sturgeon is that the Highway Administration violated 16 U.S.C. § 1538 when shortnose sturgeon were "taken" as a result of pile driving. See Pl.'s Mot. for Summ. J. at 40-41. As mentioned earlier, the original BA did not suggest that pile driving would impact on shortnose sturgeon. Pile driving did result in fish kills in late August 2001, upon which the Highway Administration notified the Marine Fisheries Service and took precautionary measures such as "tapping" before pile driving to scare away fish. See FHWA Suppl. at 954, cited in Defs.' Mot. for Summ. J. at 51. This reduced fish kill temporarily. See FHWA Suppl. at 1409, 1604, cited in Defs.' Mot. for Summ. J. at 52. When the largest pile driving activity began on March 29, 2002, however, fish kill substantially increased. See id. Consultation was reinitiated, and the Highway Administration prepared the supplemental BA to address the pile driving issue. The supplemental BA concluded that, with the implementation of certain measures, future pile driving would not likely adversely affect shortnose sturgeon. See FHWA 3161, cited in Defs.' Mot. for Summ. J. at 52.
Protective measures during pile driving include use of a contained air bubble curtain system, cans for containment, monitoring of pressure waves to ensure levels stay below 4 psi, use of a smaller hammer, and cofferdams. See FHWA Suppl. at 3146-3148, cited in Defs.' Mot. for Summ. J. at 52.
There is no documentation that any sturgeon were actually taken as a result of pile driving. Although fish kills were observed, no injured or killed shortnose sturgeon were actually observed, and Plaintiff does not offer any evidence of specific sturgeon injury or kill other than speculation. Plaintiff has failed to prove the actual taking of any shortnose sturgeon as a result of pile driving. See American Bald Eagle v. Bhatti, 9 F.3d 163, 165-66 (holding that the "proper standard for establishing a taking under the ESA, far from being a numerical probability of harm, has been unequivocally defined as a showing of `actual harm,'" or actual killing or injuring of wildlife). Further, given that protective measures will be used with regard to pile driving in accordance with the supplemental BA, allegations of past taking is moot.
3. The BiOp Concerning the Bald Eagle Is Not Arbitrary and Capricious
Plaintiff contends that the Fish and Wildlife Service's conclusion in its most recent BiOp issued in 2003 is arbitrary and capricious because it did not adequately take into account the Bridge Project's impact on non-nesting, or non-breeding, eagles. See Pl.'s Mot. for Summ. J. at 43-45. As noted earlier, the original impetus for consultation regarding the Bridge Project's impact on the bald eagle was the confirmation of the existence of a nesting pair, or a breeding pair, of bald eagles about one-half mile from the Bridge Project. See FWS Suppl. at 5324. This nesting pair was the main concern addressed throughout consultation. In its most recent BiOp, however, the Fish and Wildlife Service also addressed non-nesting eagles, as some had been observed in the vicinity of the Bridge Project. See FWS AR 2, 13; FWS Supp. 5325-26, 5342-43 cited in Defs.' Mot. for Summ. J at 54. The Fish and Wildlife Service ultimately concluded that any impact the Bridge Project may have on non-nesting bald eagles was not anticipated to constitute a "taking" under the ESA, partially reasoning that the project area is not an eagle concentration area and that non-nesting eagles will shift to other available habitat. See FWS at 2302, 3350. Plaintiff claims that this reasoning is inadequate and inconsistent with a comment in the original BiOp signifying that "shoreline development was the `limiting factor' and loss of habitat was the `most significant threat to this population.'"See Pl.'s Mot. for Summ. J. at 44 (quoting FWS at 7).
The Fish and Wildlife Service recognized that the ecology of non-nesting bald eagles is different from that of nesting bald eagles, and therefore, conclusions regarding impacts on one would not accurately reflect those impacts on the other. See FWS AR 1959-62 cited in Defs.' Mot. for Summ. J. at 55. Thus, the Fish and Wildlife Service analyzed the effects of the Bridge Project on non-nesting eagles separately. The Fish and Wildlife Service concluded that the project area is not a concentration area for non-nesting bald eagles, or in other words, it is not a location where large numbers of the eagles congregate. See FWS AR 5338cited in Defs.' Mot. for Summ. J. at 56. This conclusion was based on observances of significantly smaller numbers of eagles that occurred in the area with less regularity and frequency than in true concentration areas, no evidence of eagles communally roosting overnight in the area, the magnitude of preexisting and current human activity in the area, and the continued lack of dense stands of preferred perching trees in the area. See FWS Suppl. AR at 5338, cited in Defs.' Mot. for Summ. J. at 56. Thus, Fish and Wildlife Service biologists rationally concluded that non-nesting eagles "only temporarily and sporadically feed in the surrounding area [of the Bridge Project]," and that the Bridge Project area is not a concentration area for bald eagles that deserves heightened protection. Id., cited in Defs.' Mot. for Summ. J. at 56.
Second, Plaintiff claims that it was arbitrary and capricious for the Fish and Wildlife Service to reason that the non-nesting eagles would shift to other available habitat because the Fish and Wildlife Service failed to consider the lack of additional habitat for displaced eagles. See Pl.'s Mot. for Summ. J. at 44-45. The Fish and Wildlife Service, however, points to sufficient alternative habitat for any displaced eagles including three miles of undisturbed forested shoreline between the west side of I-295 and the Potomac River, 84 forested and shallow water acres at Oxon Cove adjacent to the Bridge, and nine acres at Oxon Cove that are to be reforested. FWS Supp. AR 5011-12, 5035-43, 5338, 5341, 5246 cited in Defs.' Mot. for Summ. J. at 56-57. Given the fact that any non-nesting eagles in the Project area are believed to be transient and the alternative habitat availability noted above, the Fish and Wildlife Service reasonably concluded that any displaced non-nesting eagles would shift to other habitat. Thus, the Fish and Wildlife Service's reasoning for its determination that the Bridge Project would not result in the taking of non-nesting eagles is supported by the administrative record and is not arbitrary and capricious.
C. The ESA Does Not Require Designation of Critical Habitat for the Shortnose Sturgeon
Plaintiff additionally alleges that the Marine Fisheries Service, on behalf of the Secretary of Commerce, has violated the ESA by failing to designate a critical habitat for the shortnose sturgeon. See Pl.'s Mot. for Summ. J. at 42-43. Plaintiff makes this challenge pursuant to the citizen-suit provision of the ESA, specifically 16 U.S.C. § 1540(g)(1)(C). Section 1540(g)(1)(C) provides that "any person may commence a civil suit on his own behalf . . . against the Secretary where there is alleged a failure of the Secretary to perform any act or duty under [ 16 U.S.C. § 1533] which is not discretionary with the Secretary." Alternatively, Plaintiff challenges the nondesignation of critical habitat for the shortnose sturgeon as arbitrary and capricious under the APA. The APA cannot be implicated for challenges to agency action to the extent that the "agency action is committed to agency discretion by law." See 5 U.S.C. § 701(a)(2). Thus, in order for Plaintiff to be able to make this challenge under either 16 U.S.C. § 1540(g)(1)(C) or the APA, designation of critical habitat for the shortnose sturgeon must be a non-discretionary function.
The definition of "critical habitat" states that "[c]ritical habitat may be established for those species now listed as threatened or endangered species for which no critical habitat has heretofore been established. . . ." 16 U.S.C. § 1532(5)(B) (emphasis added). This "may designate" provision was added to the ESA by amendment in 1978. See Pub.L 95-632 (Nov. 10, 1978). The "now listed" phrase, therefore, refers to species listed as endangered or threatened before or at the time of the amendment in 1978. Since the shortnose sturgeon was originally listed as endangered in 1967, a critical habitat may be established for it under 16 U.S.C. § 1532(5)(B). The word "may" indicates that this is a discretionary, rather than a nondiscretionary function.
By contrast, 16 U.S.C. § 1533(a)(3)(A)(i) states that "[t]he Secretary . . . shall, concurrently with making a determination . . . that a species is an endangered species or a threatened species, designate any habitat of such species which is then considered to be critical habitat." (emphasis added). This requirement to establish the critical habitat at the time of listing a species was not added to the ESA until 1982. See Pub.L. 97-304 (October 13, 1982). Congress specified that this requirement does not apply to any species listed before November 10, 1978. See 1982 Amendments of the ESA § 2(b)(4). Since the shortnose sturgeon was listed in 1967, before November 10, 1978, the Secretary is not obligated under 16 U.S.C. § 1533(a)(3)(A) to designate a critical habitat for the shortnose sturgeon. Therefore, designating a critical habitat for the shortnose sturgeon remains a discretionary function and cannot be challenged under either the 16 U.S.C. § 1540(g)(1)(C) or the APA.
III. CONCLUSION
For the foregoing reasons, the Court will grant Defendants' Motion to Strike Exhibits 3, 4, and 5, deny Plaintiff's Motion for Summary Judgment, and grant Defendants' Motion for Summary Judgment on all claims. An appropriate order will accompany this Memorandum Opinion.