National Audubon Society v. US Army Corps of Engineers ( 2021 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-2151
NATIONAL AUDUBON SOCIETY,
Plaintiff - Appellant,
v.
UNITED STATES ARMY CORPS OF ENGINEERS; COLONEL ROBERT J.
CLARK, in his official capacity as District Commander of the Wilmington District;
THE TOWN OF OCEAN ISLE BEACH,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Wilmington. Louise W. Flanagan, District Judge. (7:17-cv-00162-FL)
Argued: December 8, 2020 Decided: March 26, 2021
Before GREGORY, Chief Judge, and NIEMEYER, and RICHARDSON, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Chief Judge
Gregory and Judge Richardson joined.
ARGUED: Leslie Griffith, SOUTHERN ENVIRONMENTAL LAW CENTER, Chapel
Hill, North Carolina, for Appellant. Eric Allen Grant, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C.; Todd S. Roessler, KILPATRICK TOWNSEND &
STOCKTON LLP, Raleigh, North Carolina, for Appellees. ON BRIEF: Geoffrey Gisler,
Kimberley Hunter, SOUTHERN ENVIRONMENTAL LAW CENTER, Chapel Hill,
North Carolina, for Appellant. Jeffrey Bossert Clark, Assistant Attorney General, Martin
F. McDermott, Claudia Antonacci Hadjigeorgiou, Andrew Coghlan, Sommer H. Engels,
Environment and Natural Resources Division, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C.; Carl E. Pruitt Jr., Melanie L. Casner, UNITED STATES
ARMY CORPS OF ENGINEERS, Washington, D.C., for Appellee United States Army
Corps of Engineers. Joseph S. Dowdy, Phillip A. Harris, Jr., KILPATRICK TOWNSEND
& STOCKTON LLP, Raleigh, North Carolina, for Appellee Town of Ocean Isle Beach.
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NIEMEYER, Circuit Judge:
The U.S. Army Corps of Engineers granted the Town of Ocean Isle Beach, North
Carolina, a permit to construct on its shoreline a “terminal groin” — a jetty extending
seaward perpendicular to the shoreline — to arrest chronic erosion of its beaches. The
Corps supported its action with the issuance of an Environmental Impact Statement and a
Record of Decision.
The National Audubon Society, an organization dedicated to conserving habitat for
wildlife, commenced this action in the district court, challenging the issuance of the permit
on the ground that numerous analyses conducted by the Corps in both its Environmental
Impact Statement and its Record of Decision were inconsistent with the National
Environmental Policy Act and the Clean Water Act. On cross-motions for summary
judgment, the district court rejected the Audubon Society’s challenges and entered
judgment for the Corps.
Reviewing the Corps’s action under the most deferential standard provided by the
Administrative Procedure Act (“APA”), we conclude that the Corps adequately examined
the relevant facts and data and provided explanations that rationally connected those facts
and data with the choices that it made. Therefore, we affirm.
I
Ocean Isle Beach is a barrier island located in Brunswick County, North Carolina,
that is 5.6 miles long and 0.6 miles wide and is oriented in an east-west direction parallel
to the coastline. The island faces the Atlantic Ocean to the south and the Atlantic
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Intracoastal Waterway to the north, and it is bounded on the east by Shallotte Inlet and on
the west by Tubbs Inlet.
Over the years, Ocean Isle Beach has suffered chronic erosion, despite the Town’s
continuing efforts at beach renourishment by dumping dredged sand onto the beach and
strategically placing protective sandbags. There are 238 parcels of land at the east end of
the island that are at the greatest risk of loss by erosion, including 45 homes. To date, 5
homes have been lost, as have some 560 feet of streets and related utility lines. Currently,
renourishment is conducted on behalf of the Town under a federal program that dumps an
average of roughly 400,000 cubic yards of sand on its beaches every three years.
After retaining an engineering firm, the Town applied to the U.S. Army Corps of
Engineers in May 2012 for a permit under the Clean Water Act to construct a terminal
groin at the east end of the island. The proposed groin would be 1,050 feet long with 300
feet landside to anchor it and 750 feet extending seaward from the shoreline. The
expectation was that the groin would trap sand on its west side, thus replenishing the beach
there, and would also “leak” some sand and water to the east side. The proposal submitted
to the Corps also included a plan to dredge the Shallotte Inlet every five years and place
the dredged sand on the west side of the groin to maintain a permanent sand fillet there.
In addition to considering the Town’s proposal for the terminal groin project, the
Corps evaluated four alternatives:
• Alternative 1 was a “no action” plan that functioned as the baseline for
analysis. In this scenario, the United States would continue its efforts of
dredging Shallotte Inlet to nourish the island’s beaches roughly every three
years, as it had since 2001. This scenario also forecast that the Town would
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continue to use sandbags to slow erosion and that homes might need to be
relocated to safer parts of the island as erosion continued.
• Alternative 2 was the “abandon/retreat” plan, under which the federal
nourishment program would continue but the use of sandbag barricades
would end. Other emergency actions to slow erosion would, however, be
taken as needed.
• Alternative 3 was the “beach fill only” plan that would provide nourishment
of additional sand dredged from the Shallotte Inlet beyond the quantities
provided under the federal nourishment program.
• Alternative 4 combined Alternative 3’s increased beach nourishment with
targeted dredging to realign the channel in the Shallotte Inlet. Over time,
repeated dredging in the “borrow area” of the Shallotte Inlet would
permanently realign the channel to reduce erosion of the island.
The Town’s proposed construction of the terminal groin, as described, was denominated
Alternative 5.
The Corps evaluated the Town’s proposal and the alternatives under the National
Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., and the Clean Water Act
(“CWA”), 33 U.S.C. § 1344, to determine each alternative’s effectiveness, environmental
impacts, and costs. After a comprehensive, years-long study, involving input from
numerous agencies and comments from the public, the Corps issued a final Environmental
Impact Statement dated April 15, 2016, in which it evaluated the environmental and
economic costs of each alternative. It relied mainly on the output of the “Delft3D model,”
adjusting some of the results to align with historically observed rates of erosion. The
Delft3D model is a sophisticated simulation tool capable of taking into account water and
sediment flows in the context of water level, tides, currents, waves, and wind. The Corps
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also considered the costs and environmental effects of dredging sand from Shallotte Inlet,
nourishing the beach, and building permanent structures like the groin.
Some nine months after it published its Environmental Impact Statement — on
February 27, 2017 — the Corps issued its Record of Decision, concluding that Alternative
5 (construction of the terminal groin) was the “least environmentally damaging practicable
alternative.” It found that while Alternatives 3, 4, and 5 were practicable and achieved the
purpose of reducing erosion, Alternative 5 involved the fewest environmental effects of the
three because it would require less beach nourishment than Alternatives 3 or 4.
Accordingly, the Corps signed a CWA permit on February 28, 2017, authorizing the Town
to construct the terminal groin. The permit, however, required that construction of the
groin comply with 56 special conditions, including all of those proposed by both the U.S.
Fish and Wildlife Service and the National Marine Fisheries Service, which were designed
to avoid and mitigate potential adverse consequences to wildlife.
The National Audubon Society commenced this action against the Corps and the
Town of Ocean Isle Beach, challenging both the Corps’s Environmental Impact Statement
and its Record of Decision. On the parties’ cross-motions for summary judgment, the
district court granted judgment to the Corps and denied the Audubon Society’s motion.
See Nat’l Audubon Soc’y v. U.S. Army Corps of Eng’rs, 420 F. Supp. 3d 409 (E.D.N.C.
2019). The court rejected the Audubon Society’s various challenges to the Corps’s
analyses, concluding, as most relevant to this appeal, that the Corps’s reliance on the
Delft3D model to meaningfully compare alternatives was not arbitrary and capricious. It
noted also that the Corps appropriately adapted the Delft3D model results to reflect
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historical erosion data and thereby ensure more accurate economic costs. And it concluded
further that the Corps, working within the constraints of available modeling, appropriately
projected environmental effects in both quantitative and qualitative terms. Also relevant
to this appeal, the court rejected the Audubon Society’s claims that the Corps did not
comply with the CWA, finding that the Corps’s evaluation of the terminal groin’s
secondary effects on the environment was reasonable, as was the Corps’s calculation of the
frequency of beach-nourishment events. Finally, the court concluded that the Corps
properly exercised its subject-matter expertise to weigh each alternative’s costs and
benefits, while taking into account the opinions of other agencies, to conclude that the
terminal groin was the least environmentally damaging practicable alternative.
From the district court’s judgment dated September 25, 2019, the Audubon Society
filed this appeal.
II
We review the district court’s summary judgment de novo, applying the same
standard as that court was required to apply. In this case, the district court reviewed the
Corps’s final agency action under the standard of review fixed by the APA, determining
whether the agency’s action was “arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” 5 U.S.C. § 706(2)(A).
An action is arbitrary or capricious if “the agency relied on factors that Congress
has not intended it to consider, entirely failed to consider an important aspect of the
problem, offered an explanation for its decision that runs counter to the evidence before
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the agency, or is so implausible that it could not be ascribed to a difference in view or the
product of agency expertise.” Hughes River Watershed Conservancy v. Johnson, 165 F.3d
283, 287–88 (4th Cir. 1999) (citing Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 43 (1983)). In other words, “so long as the agency provides an
explanation of its decision that includes a rational connection between the facts found
and the choice made, its decision should be sustained.” Am. Whitewater v. Tidwell,
770 F.3d 1108, 1115 (4th Cir. 2014) (cleaned up).
This standard is “highly deferential, with the presumption in favor of finding the
agency action valid.” Ohio Valley Envtl. Coalition v. Aracoma Coal Co., 556 F.3d 177,
192 (4th Cir. 2009). Moreover, the agency is owed particular deference when exercising
its judgment in resolving factual disputes that “implicate substantial agency expertise” and
that require the agency to “balance often-competing interests.” Am. Whitewater, 770 F.3d
at 1115 (cleaned up). And “[w]hen an agency is called upon to make complex predictions
within its area of special expertise, a reviewing court must be at its most deferential.” Ohio
Valley, 556 F.3d at 205 (emphasis added) (quoting Balt. Gas & Elec. Co. v. Nat. Res. Def.
Council, 462 U.S. 87, 103 (1983)). After all, courts have neither the mandate nor the
technical expertise to “sit as a scientific body, meticulously reviewing all data under a
laboratory microscope.” Nat. Res. Def. Council v. EPA, 16 F.3d 1395, 1401 (4th Cir.
1993); see also Trinity Am. Corp. v. EPA, 150 F.3d 389, 395 (4th Cir. 1998) (noting the
“technological and scientific questions at the outer limits of a court’s competence” (cleaned
up)). Of course, a court should take care under any level of deference to not conduct
judicial review with simply a “rubber stamp.” Ohio Valley, 556 F.3d at 192 (cleaned up).
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The agency action that is subject to our review in this case does, indeed, involve
complex predictions within the Corps’s area of special expertise, and therefore our review
of its action is most deferential. See Ohio Valley, 556 F.3d at 205.
III
In issuing the CWA permit to the Town, the Corps was required by NEPA to first
issue an Environmental Impact Statement, analyzing potential environmental
consequences, calculating the economic costs of each alternative, and making the
information available to the public to enable it to play a role in the decisionmaking process.
See 40 C.F.R. §§ 1508.7, 1508.8, 1508.25 (2015); see also Balt. Gas & Elec. Co., 462 U.S.
at 97. And in rendering its Record of Decision under the CWA, it was required to consider
whether there are “practicable alternative[s]” that are consistent with the “overall project
purpose[]” for which a permit is sought. 40 C.F.R. § 230.10(a). If so, the Corps may only
issue the permit for the practicable alternative that is the least environmentally damaging,
taking into account “short-term,” “long-term,” “cumulative,” and “secondary effects,” as
well as “cost[s], existing technology, and logistics in light of the overall project purposes.”
Id.; id. § 230.11.
The Audubon Society challenges various aspects of the Corps’s analyses in
discharging its responsibilities under both NEPA and the CWA, and we consider each in
turn.
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A
The Audubon Society argues first that the Corps did not, in its Environmental
Impact Statement, accurately portray the economic costs and environmental effects of each
alternative because it mixed its sources of data in considering each alternative. While
projections of environmental effects were based on the direct output of the Delft3D model,
projections of economic costs were adjusted based on historical rates of erosion. Under
Alternative 1, for example, the Delft3D model indicated that the erosion of sand was
estimated to be 24,000 cubic yards per year, while the historically observed rate was 91,000
cubic yards per year. The Corps used the first number to calculate environmental effects,
while it used the latter number to calculate economic costs. As a result, the Audubon
Society insists, the Corps effectively projected “two shorelines for each alternative,” using
the less-eroded shoreline to predict environmental effects and the more-eroded shoreline
to estimate economic costs with the consequence that, as it contends, it was “impossible
for the public or the agency to evaluate each alternative as a coherent package of economic
and environmental impacts.”
But the Corps’s use of differing data was justified and, in any event, immaterial.
The Corps’s approach reflected its judgment about the suitability of the data and the tools
available for making the assessments. The Delft3D model provided an initial baseline for
both types of effects. Yet the Corps was able to calculate more accurate economic costs
based on historical rates of erosion because it had available the necessary data to calculate
the volume of sand that would need to be renourished periodically, the primary cost of each
alternative. By contrast, environmental effects were more dynamic in nature owing to the
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complexity of coastal waters. This relative lack of certainty led the Corps to qualify that
environmental effects “should be interpreted with caution,” though the data were still
adequate to reveal “trends” and “relative differences.” And because no reliable historical
data for habitat acreage was available, the Corps was unable to make the same adjustment
for environmental effects that it had made for economic costs. Neither NEPA nor the APA
requires that the Corps attempt to extend its predictions beyond the limitations of available
technology. Thus, the use of these distinct data for distinct purposes was not an
inappropriate judgment.
What’s more, the use of distinct data was of no consequence to the Corps’s task of
assessing among alternatives the environmental and economic effects. The Corps used the
same data derived from the Delft3D model to measure the environmental effects of each
alternative. Likewise, in determining economic costs, it used the same source of data for
each alternative. So regardless of the data source — the Delft3D model or adjusted
historical statistics — the ranking of the alternatives would remain the same. Even if the
Corps could have adjusted, and chose to adjust, the environmental effects to account for
the higher rates of erosion observed in the historical data, the environmental effects of all
alternatives would likewise increase by the same proportion and produce the same relative
comparison of the alternatives. The Audubon Society’s concern in this regard is thus not
well taken.
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B
The Audubon Society argues next that, in the Corps’s Environmental Impact
Statement, the Corps similarly erred by calculating 30 years of economic costs for each
alternative but considering only up to 5 years of data in determining environmental effects.
But, again, the Corps provided a reasonable explanation for doing so, and it consistently
applied its approach to each alternative.
The Corps modeled each alternative’s quantitative environmental effects for an
initial period of 3 years, and 5 years for Alternative 5, because those periods fell
immediately before each alternative’s second scheduled beach-nourishment event. By
measuring environmental effects at the time before a planned beach nourishment, the Corps
was able to compare “apples to apples,” whereas reporting results at a different uniform
period would have skewed results because one alternative, having just received
nourishment, would have looked deceptively favorable in comparison to another
alternative that had not yet received the scheduled nourishment.
Moreover, it is simply not accurate to assert that the Environmental Impact
Statement did not analyze environmental effects over the full 30-year period. Rather, the
Corps explained that quantitative data of environmental effects after the initial 3-year
period could only be speculative. See Town of Cave Creek v. FAA, 325 F.3d 320, 331 (D.C.
Cir. 2003) (finding a shortened quantitative model “was perfectly reasonable” given “the
difficulties and uncertainties involved in modeling” over a longer period). Accordingly, it
followed its initial quantitative results with a rigorous qualitative analysis of each
alternative’s likely long-term environmental effects. Such a choice to use qualitative
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methods over quantitative ones is well within the agency’s discretion so long as it “explains
its reasons for doing so,” as the Corps did here. League of Wilderness Defs.-Blue Mtns.
Biodiversity Project v. U.S. Forest Serv., 689 F.3d 1060, 1076 (9th Cir. 2012); cf. Vill. of
Bensenville v. FAA, 457 F.3d 52, 71 (D.C. Cir. 2006) (upholding an agency’s shorter time
horizon when “predictions any further along would be of questionable reliability”).
In that qualitative analysis, the Corps expressly acknowledged potential long-term
effects of the terminal groin that the Audubon Society insists the Corps “ignored.” It noted
that the groin was proposed to be “semi-permeable” or “leaky” so that seawater, sand, and
small marine animals might pass through it. The Delft3D model found that the sand would
accrete on the groin’s west side for the first year and deprive sand from the east side, but
“following [that] initial year of adjustment, the shoreline response east of the [groin]
[would] stabilize[]” and begin to accrete sand and regain volume for the betterment of
wildlife habitats.
In addition to using the Delft3D model for initial quantitative measurements
followed by long-term qualitative predictions, the Corps included in its analysis a series of
minimization and mitigation efforts designed to reduce the adverse environmental effects
with respect to Alternative 5, anticipating those effects over the full 30-year life of the
project. For example, the Town and Corps would be required to monitor the beach habitat
and erosion rates and to take corrective measures as necessary, including modifications to
the groin.
Finally, the Corps justified using a different set of data — adjusted historical costs
— to compute the economic costs over a 30-year period because those data enabled the
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Corps to calculate the economic costs in a relatively mechanical manner. But the important
fact remains that the economic costs were computed uniformly for each alternative.
We conclude that there was nothing unreasonable about the Corps’s approach.
C
For its final challenge to the Environmental Impact Statement, the Audubon Society
contends that the Corps failed, with respect to Alternative 4, to model beach nourishment
events in tandem with targeted dredging. That failure, the Audubon Society argues, “made
it impossible to meaningfully compare Alternative 4 to the other alternatives.” But the
Corps explained both the purpose and result of its analysis. It modeled Alternative 4 for a
total of 6 years, the first 3 matching Alternative 1’s rate of erosion to establish a baseline
for Alternative 4 and the next 3 years modeling the effects of strategic dredging. That two-
step process permitted the Corps to measure the effect of targeted dredging in isolation
from the effects of other interventions. The component of Alternative 4 that increased
beach nourishment was otherwise observable in the Corps’s analysis of Alternative 3,
which did not include targeted dredging. In this fashion, the Corps was able to compare
Alternative 4 to Alternative 3 for purposes of assessing both alternatives. And in doing so,
it found that Alternative 4’s repeated dredging caused the intended “build-up of material
on the west side of Shallotte Inlet,” which the Corps expected to “continue to result in
positive shoreline impacts along the east end of Ocean Isle Beach.” This was undoubtedly
a reasonable explanation involving distinct components of a complex policy choice, and
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the Corps was able to compare all alternatives in the same light, ultimately finding
Alternative 5 to be the least environmentally damaging practicable alternative.
D
With respect to the Record of Decision, the Audubon Society argues first that the
Corps violated the CWA by cutting short its consideration of the “secondary effects” that
each proposed alternative would have on the aquatic ecosystem. 40 C.F.R. § 230.11(h). It
claims that the Corps considered at most a 5-year period for a 30-year project and thereby
failed to comply with the necessary secondary-effects analysis.
But, as already discussed, because of the scheduled beach nourishment by the
federal program, Alternatives 1, 2, and 3 were modeled for 3-year periods; Alternative 4
was modeled for a 6-year period; and Alternative 5 for a 5-year period. After those periods,
the Corps concluded, any quantitative model would have been too uncertain. Accordingly,
it made the discretionary decision to analyze longer-term environmental effects in its
qualitative analysis. This analysis was just as reasonable under the CWA regulatory
framework as it was under NEPA’s for issuance of an Environmental Impact Statement.
E
The Audubon Society next argues that in the Record of Decision, the Corps erred in
concluding that Alternative 5 had only negligible environmental effects and would, in some
ways, even improve habitat. It contends that the conclusion is irrational in light of repeated
comments made to the contrary by federal and state environmental agencies. For instance,
the U.S. Fish and Wildlife Service recommended that “the proposed project not be
15
authorized,” citing a terminal groin’s potential effects on sea turtles, piping plovers, red
knots, and seabeach amaranth in the project area. The Audubon Society points to similar
comments submitted by state agencies. In view of these comments, it claims that the Corps
“skipped over its crucial obligations to assess and determine the [environmental] effects of
the terminal groin.”
This argument, however, focuses on select parts of the record while overlooking
others and thereby fails to address whether the Corps properly found, based on the entire
record, that Alternative 5 was the least environmentally damaging of the practicable
alternatives proposed.
In its Record of Decision, the Corps drew primarily on the Delft3D model results
and its own qualitative predictions — while also considering public comments and the
biological opinions of the U.S. Fish and Wildlife Service and the National Marine Fisheries
Service — to determine which practicable alternative was the least environmentally
damaging. It found that while all 5 alternatives were “logistically and technologically
practicable,” Alternatives 1 and 2 were not otherwise practicable because they did “not
meet the project purpose and need” of stemming erosion on the island. Alternative 3, it
concluded, would reduce erosion, but at a greater environmental and economic cost than
Alternatives 4 and 5. And as between Alternatives 4 and 5, the Corps concluded that
Alternative 5 was the least environmentally damaging because it would require less
frequent and less total volume of beach nourishment. Frequent dredging and beach
nourishment, it noted, can damage marine habitats, while the less frequent activity under
Alternative 5 would permit those habitats additional time to recover between nourishment
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events. The Corps also specifically addressed the Audubon Society’s concerns by noting
that the Delft3D model showed that under Alternative 5, the beach east of the groin would
stabilize after the first year and the accretion of sand west of the groin would increase
habitat acreage and improve wildlife, “specifically for birds and sea turtles.”
We conclude that the Corps’s explanation and reasoning were hardly arbitrary and
capricious, even if they were challenged by the Fish and Wildlife Service, another expert
agency. See Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 378 (1989) (“When specialists
express conflicting views, an agency must have discretion to rely on the reasonable
opinions of its own qualified experts even if, as an original matter, the court might find
contrary views more persuasive”). Even so, the permit that the Corps issued in this case
included “[a]ll terms and conditions of the U.S. Fish and Wildlife Service’s” biological
opinion, as well as those of the Marine Fisheries Service. Thus, rather than ignoring the
Fish and Wildlife Service, the Corps accommodated the conditions required by it.
In light of the Corps’s extensive analysis, explanation, and modeling in reaching its
conclusion that Alternative 5 was the least environmentally damaging practicable
alternative, we conclude that the Corps acted reasonably.
F
Finally, the Audubon Society contends that the Corps, in its Record of Decision,
arbitrarily applied a limit for beach nourishment events such that no beach nourishment
under any alternative could exceed 408,000 cubic yards of sand at one time. According to
the Audubon Society, that limit resulted in a conclusion, when comparing Alternative 4
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and Alternative 5, that overstated the negative environmental effects of Alternative 4. It
argues that if the Corps had applied a slightly higher nourishment limit, then its analysis of
the relative merits of Alternatives 4 and 5 would have changed, resulting in a different
conclusion as to the least environmentally damaging practicable alternative.
The Corps explained in its Environmental Impact Statement that the 408,000-cubic-
yard limit provided “an equitable way to compare the impacts and cost of each alternative.”
That limit was not an arbitrary choice but instead represented, as it explained, “the average
volume placed on Ocean Isle Beach every three years to maintain the federal storm damage
reduction project.” Specifically, between 2001 and 2014, the Town and the federal
government nourished the beaches with a total of 1,758,000 cubic yards of sand, averaging
408,000 cubic yards every three years.
The Audubon Society argues, however, that use of the 408,000-cubic-yards number
was imperfect because, even though the federal nourishment program called for
nourishment events every three years, nourishment in practice was infrequent and uneven.
As a consequence, actual nourishments over the period ranged from 155,000 to 800,000
cubic yards of sand at one time. The Corps, however, explained that this gap between the
applied average and reality resulted from a confluence of funding shortfalls, lack of
coordination between the Town and the federal government, and not least of all, the
hurricanes in the region. Nonetheless, it needed a single average applied consistently
across the alternatives to conduct a fair analysis. In view of this explanation, we conclude
that the Corps’s use of the 408,000-cubic-yard limit was not unreasonable.
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Additionally, after reviewing the record, we are persuaded by the Corps’s
explanation that even if the Corps would have changed the average volume for its analysis
to a different number, its conclusions favoring Alternative 5 would not have changed. This
is because the Corps observed that Alternative 4 required not only more frequent
nourishment, a fact resulting from the limit on each nourishment event, but also a
significantly greater quantity of nourishment over the project’s life — 3,168,000 cubic
yards for Alternative 4 and 2,664,000 cubic yards for Alternative 5. This difference in total
nourishment, and the consequent difference in environmental effects, would thus persist
regardless of the nourishment limit applied by the Corps.
Finally, the record demonstrates that Alternative 4’s beach-nourishment
requirements would be front-loaded in the project’s first five years. Over that period,
Alternative 4 would dredge and relocate 1,152,000 cubic yards of sand from Shallotte Inlet
to Ocean Isle’s beaches, nearly 75% more than Alternative 5 would require during that
same period. The large increase in nourishment in Alternative 4’s early years was
attributable to the fact that repeated dredging from the same “borrow area” in the Shallotte
Inlet was necessary during that time to achieve “the preferred channel alignment.” The
consequence of that realignment was, at least initially, “more cumulative impacts to the
aquatic environment . . . both along the shoreline and at the maintained inlet/borrow site”
for Alternative 4. And there was evidence that this initial damage could prove permanent,
as “the initial 2 year interval associated with Alternative 4 may prevent this habitat from
reforming completely.” Indeed, the Audubon Society’s own public comment with respect
to the Corps’s Environmental Impact Statement recognized the damage that would be
19
caused by nourishment every two years. By contrast, the longer intervals between
nourishment events under Alternative 5 could provide habitats in both the Shallotte Inlet
and on the beach “more time to recover.” Again, this was a consequence of the basic design
of Alternative 4, not the product of the applied nourishment limit of 408,000 cubic yards
per event.
Thus, when we take a “holistic view” of the Corps’s process, rather than “flyspeck”
any particular number that the Corps arrived at after a careful and informed analysis, we
conclude that the Corps acted reasonably. Webster v. U.S. Dep’t of Agric., 685 F.3d 411,
421–22 (4th Cir. 2012) (quoting Nat’l Audubon Soc’y v. Dep’t of Navy, 422 F.3d 174,
186 (4th Cir. 2005)).
* * *
In the course of issuing an Environmental Impact Statement and granting a permit
under the CWA, the Corps collected a broad range of data drawn from the facts and
objectives of the project at issue, historical statistics and records, computer analyses, and
opinions of other specialized agencies, and it analyzed those data to make judgments
ultimately based on its own special expertise under the numerous criteria imposed by
NEPA and the CWA. In doing so, it was required to provide “an explanation of its decision
that includes a rational connection between the facts found and the choice made.”
Am. Whitewater, 770 F.3d at 1115 (quoting Ohio Valley, 556 F.3d at 192). Based on the
record in this case, we readily conclude that the Corps provided a reasonable explanation
of its complex decisions that included “a rational connection between the facts found and
20
the choice[s] made.” Id. Recognizing that our review is appropriately deferential, we
affirm the Corps’s actions. See 5 U.S.C. § 706.
The judgment of the district court is
AFFIRMED.
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