Northwest Environmental Advocates v. National Marine Fisheries Service , 460 F.3d 1125 ( 2006 )

Volume 1 of 2
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NORTHWEST ENVIRONMENTAL 
ADVOCATES,
Plaintiff-Appellant,
v.
No. 05-35806
NATIONAL MARINE FISHERIES
SERVICE, UNITED STATES ARMY
CORPS OF ENGINEERS,
 D.C. No.
CV-04-00666-RSM
Defendants-Appellees, OPINION
THE PORTS OF VANCOUVER,
WOODLAND, KALAMA, LONGVIEW,
PORTLAND, AND ST. HELENS,
Defendants-Intervenors-Appellees.

Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding
Argued and Submitted
March 7, 2006—Seattle, Washington
Filed August 23, 2006
Before: Betty B. Fletcher, Barry G. Silverman, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Silverman;
Dissent by Judge B. Fletcher
10065
10070 NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS
COUNSEL
Stephen D. Mashuda, Earthjustice, Seattle, Washington, for
the plaintiff-appellant.
Matthew J. Sanders, U.S. Department of Justice, Washington,
D.C., for the defendants-appellees.
Beth S. Ginsberg, Stoel Rives, LLP, Seattle, Washington, for
the defendants-intervenors-appellees.
OPINION
SILVERMAN, Circuit Judge:
Northwest Environmental Advocates (“NWEA”) chal-
lenges the adequacy of a 2003 Final Supplemental Integrated
Feasibility Report and Environmental Impact Statement pre-
pared by the United States Army Corps of Engineers in con-
nection with a project to deepen the Columbia River
navigation channel and to propose new sites for disposal of
dredged materials. NWEA argues that the Corps violated the
National Environmental Policy Act (“NEPA”), 42 U.S.C.
§ 4321 et seq., because, it claims, the Final Supplemental
Integrated Feasibility Report and Environmental Impact State-
ment fails to take a “hard look” at the channel deepening proj-
ect’s various impacts. The district court saw otherwise, and
held that the Corps had taken the requisite “hard look” at the
particular environmental and economic factors at issue. Based
NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS 10071
on the Corps’ extensive examination of the project’s cumula-
tive, direct, and economic impacts, we agree with the district
court that the Corps has taken the required hard look. We
have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.1
I. Factual Background
A. The Channel Deepening and Dredged Material
Disposal Project
The Columbia River represents a major cargo gateway to
the Pacific Northwest. The current depth of the Columbia
River navigation channel is 40 feet. Over the past twenty
years, larger vessels with “design drafts” exceeding this 40-
foot channel depth have carried an increasing share of Colum-
bia River cargo tonnage. Because of the constraints of channel
depth, these vessels must arrive “light-loaded.” According to
the Corps, the current 40-foot channel constrains 70 percent
of vessels involved in the transpacific container trade while a
43-foot depth would constrain only 30 percent.
In 1989, Congress directed the Corps to assess the feasibil-
ity of deepening the Columbia River’s 40-foot navigation
channel to a maximum of 43 feet in order to enhance shipping
capacity. The current channel deepening project involves
deepening the channel from Columbia River Mile 3 to Mile
106.5. The project also includes various ecosystem restoration
actions.2 The “channel deepening project” also proposes three
1
NWEA also challenges a 1998 Dredged Material and Management
Plan and Supplemental Environmental Impact Statement completed for an
alternative project to maintain the current channel depth. Because we hold
that the 2003 Final Supplemental Integrated Feasibility Report and Envi-
ronmental Impact Statement for the channel deepening project satisfied
the National Environmental Policy Act, we do not reach the issue of the
1998 Dredged Material and Management Plan and Supplemental Environ-
mental Impact Statement.
2
The 2003 Final Supplemental Integrated Feasibility Report and Envi-
ronmental Impact Statement includes a plan to use dredged material from
10072 NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS
disposal sites to accommodate dredged material from both
channel deepening and the Mouth of the Columbia River proj-
ect, an independent dredging project. The first two areas are
so-called Ocean Dredged Material Disposal Sites and include
the Shallow Water Site,3 a dispersive site4 located within the
littoral cell, and a Deep Water Site. The third area is the North
Jetty Site, which is also dispersive and located within the lit-
toral cell. Material dumped at the Shallow Water Site and the
North Jetty Site stays in the littoral system, where it can
accrete on coastlines to counteract erosion. Sediment placed
at the Deep Water Site is considered “inert” because it is
effectively removed from the sediment transport system.
In August 1999, the Corps released a Final Integrated Fea-
sibility Report and Environmental Impact Statement for the
Columbia River Channel Improvement Project.5 This several-
hundred-page document contains numerous analyses of the
proposed project and its alternatives, affected environment,
channel deepening in restorative actions in the estuary. However, if the
restoration features are not fully implemented, then the Corps will dispose
of material in the ocean as described in the 1999 Final Integrated Feasibil-
ity Report and Environmental Impact Statement.
3
The Shallow Water Site occupies an extended area that includes the
former expanded Site E. The 1999 Final Integrated Feasibility Report and
Environmental Impact Statement refers to the older area, Site E. However,
the Environmental Protection Agency had initiated preliminary rulemak-
ing processes to replace Site E with the Shallow Water Site at the time the
Corps issued the 2003 Final Supplemental Integrated Feasibility Report
and Environmental Impact Statement, and that document thus refers to the
Shallow Water Site. Because these sites are materially different, this opin-
ion will refer to either “Site E” or to the “Shallow Water Site” as appropri-
ate.
4
Some amount of sediment placed at dispersive sites naturally migrates
out of the site and settles elsewhere, thus increasing these sites’ dynamic
capacity.
5
While the Corps is the Lead Agency responsible for issuing the Final
Integrated Feasibility Report and Environmental Impact Statement, the
United States Environmental Protection Agency is listed as a Cooperating
Agency.
NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS 10073
environmental impact, and implementation. It also includes
plans to dispose of dredged material from the Mouth of the
Columbia River project and from channel deepening in the
North Jetty Site, Site E, and the Deep Water Site. The U.S.
Fish and Wildlife Service issued a “No Jeopardy” Biological
Opinion on the project’s potential impact on certain Endan-
gered Species Act-listed wildlife and plant species. After ini-
tially finding that the project would not jeopardize salmonids
protected under the Endangered Species Act, NOAA fisheries
withdrew its favorable Biological Opinion, citing new infor-
mation on the project’s potential impact on bathymetry, river
flow, and resuspension of toxins.
Following this withdrawal, the States of Washington and
Oregon denied certification of the project under Section 401
of the Clean Water Act, 33 U.S.C. § 1341, and the Coastal
Zone Management Act, 16 U.S.C. § 1451 et seq. They
expressed concern over the project’s effects on sediment
transport and Dungeness crab as well as its consistency with
existing coastal programs. Consultations with state agencies
followed, and the Corps began preparing a supplemental envi-
ronmental impact statement to address those concerns. As part
of that process, in February 2001, the Corps, NOAA Fish-
eries, and the U.S. Fish and Wildlife Service hired the non-
profit Sustainable Ecosystems Institute to review the channel
deepening project’s potential environmental impacts. The SEI
process involved project reviews by SEI staff members as
well as by an independent panel of seven scientific experts.
Throughout 2002, the Corps received and responded to
numerous comments on the draft supplemental environmental
impact statement, including comments from NWEA. Also in
2001, the Corps issued a Biological Assessment of fish and
wildlife, which the subsequent Final Supplemental Integrated
Feasibility Report and Environmental Impact Statement incor-
porates as Exhibit H. Based on the Corps’ new studies,
NOAA Fisheries changed its assessment of the project. In
May 2002, it and the U.S. Fish and Wildlife Service issued
final Biological Opinions concluding that the channel deepen-
10074 NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS
ing project would not adversely affect Endangered Species
Act-protected species.
In January 2003, the Corps issued its Final Supplemental
Integrated Feasibility Report and Environmental Impact State-
ment (“FSEIS”).6 The document spans several hundred pages
and supplements, updates, and incorporates through reference
the 1999 Final Integrated Feasibility Report and Environmen-
tal Impact Statement. Among numerous additional studies, the
2003 FSEIS includes Exhibit J, which directly responds to
Oregon and Washington’s concerns by analyzing the impact
of channel deepening on sediment transport in the Columbia
River. Based on the revised and expanded analyses, Washing-
ton and Oregon withdrew their objections and certified the
project.
On January 9, 2004, the Corps issued its Record of Deci-
sion approving the channel deepening project.
B. The Channel Maintenance Project
Independently of the proposed channel deepening project,
the Corps operates an ongoing dredging project to maintain
the current depth of the Columbia River navigation channel at
40 feet. As part of that project, the Corps released a Dredged
Material Management Plan and Supplemental Impact State-
ment in June 1998. The purpose of the Dredged Material
Management Plan and Supplemental Impact Statement is to
create a 20-year disposal plan for dredged sediments and eval-
uate proposed changes in dredging and disposal, including
shifting current disposal of dredged material to other sites. As
described in the 2003 FSEIS for channel deepening, the chan-
nel maintenance project represents the “No Action Alterna-
tive” to channel deepening.
6
Because the parties refer to this document as “FSEIS,” we do as well.
As with the 1999 Final Environmental Impact Statement, the 2003 FSEIS
lists the Corps as the Lead Agency and the Environmental Protection
Agency as a Cooperating Agency.
NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS 10075
C. The Columbia River Littoral Cell and Other
Ongoing Projects
A central concern of this appeal is the potential for various
Corps projects to exacerbate coastal erosion. Historically, the
Columbia River has drawn sand from inland areas and depos-
ited it in the estuary, which in turn provided sediment to 100
miles of shoreline from Tillamook Head, Oregon to Point
Grenville, Washington. This area is known as the Columbia
River littoral cell. Over the past 120 years, various natural and
human activities have reduced the amount of sand deposited
in and throughout the littoral cell, contributing to erosion of
the Oregon and Washington coasts.
In addition to the projects described above, the Corps and
other agencies currently operate several other projects in and
around the Columbia River. Most relevant to this appeal is the
Mouth of the Columbia River (“MCR”) project, which the
Corps has operated since 1983. The MCR area is a 0.5-mile-
wide navigation channel that runs for six miles through the
entrance between the Pacific Ocean and the Columbia River.
As part of the MCR project, the Corps maintains a channel
depth of 55 feet by removing approximately 4.5 million cubic
yards of sediment every year. The Corps has placed material
dredged from the MCR in four ocean disposal sites (referred
to as Sites A, B, E, and F), which the EPA designated in 1977.
To accommodate more material, Sites A, B, and F were
expanded in 1993, and Site E was expanded in 1997. Recent
analyses reveal that the disposal sites for material dredged
from the MCR project have or will soon reach capacity. As
mentioned, the channel deepening project includes a proposal
for three new sites—the North Jetty Site, Shallow Water Site,
and Deep Water Site—to accommodate material dredged
from the MCR project, as well as from the navigation channel
itself.
In addition to the MCR project, the Corps has constructed
several jetties at the entrance of the MCR. Furthermore, the
10076 NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS
Corps and the Bureau of Reclamation operate a system of
dams along the Columbia River known collectively as the
Federal Columbia River Power System.
II. Procedural History
NWEA filed suit in district court alleging that NOAA Fish-
eries had violated the Endangered Species Act by failing to
study adequately the impact of the Corps’ dredging activities
on protected salmon. Shortly thereafter, NWEA filed a first
amended complaint arguing that the Corps’ 2003 FSEIS and
1998 Dredged Material Management Plan and Supplemental
Impact Statement did not sufficiently analyze the impacts of
the deepening and maintenance projects as required by
NEPA. NWEA subsequently amended its complaint two more
times, arguing that the Corps was required to prepare a sup-
plemental environmental impact statement under NEPA and
challenging NOAA Fisheries’ revised Biological Opinion.
Because of their significant interest in the navigation channel
and their role as local sponsors of the channel deepening proj-
ect, the Ports of Vancouver, Woodland, Kalama, Longview,
Portland, and St. Helens sought and were granted intervenor
status.
Presented with cross-motions for summary judgment, the
district court granted summary judgment to NOAA Fisheries,
the Corps, and the Sponsor Ports, and denied summary judg-
ment to NWEA.
Regarding the alleged NEPA violations, the district court
ruled that the Corps took the requisite “hard look” at the
direct and indirect effects of the channel deepening project on
sediment budget, river toxicity, and salinity. See Klamath-
Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d
989, 993 (9th Cir. 2004). The court also ruled that the channel
deepening and Mouth of the Columbia River projects are not
“connected actions” under 40 C.F.R. § 1508.25(a)(1) and that
the environmental impact statement for the former need only
NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS 10077
consider the latter in the context of “cumulative impact.” The
court struck and declined to consider the extra-record declara-
tion of economist Ernest Niemi submitted by NWEA relating
to the Corps’ economic analysis. The stated purpose of
Niemi’s declaration was to “determine whether or not the
FSEIS provides a misleading description of the Project’s
potential impacts.” The court ruled that use of this declaration
would be improper under Asarco, Inc. v. EPA, which held that
a court may not consider extra-record evidence “to determine
the correctness or wisdom of the agency’s decision.” 616 F.2d
1153, 1160 (9th Cir. 1980). Noting the approval of indepen-
dent expert reviewers, the court upheld as proper the Corps’
economic analysis.
Regarding the alleged Endangered Species Act violations,
the court ruled that NOAA Fisheries could justify its No Jeop-
ardy determination concerning salmonids because the project
would improve the estuary’s environmental baseline and have
minimal impact on Endangered Species Act-listed species.
The court further held that NOAA Fisheries’ baseline analysis
was not arbitrary and capricious because the agency “fully
evaluated the environmental baseline and the effects of the
action when added to that baseline.” The rulings on the
Endangered Species Act claims are not challenged on appeal.
III. Standard of Review
We review de novo a district court’s grant or denial of sum-
mary judgment. Ground Zero Ctr. for Non-Violent Action v.
U.S. Dep’t of Navy, 383 F.3d 1082, 1086 (9th Cir. 2004). De
novo review of the district court judgment means that we
must “ ‘view the case from the same position as the district
court.’ ” Ka Makani O Kohala Ohana Inc. v. Water Supply,
295 F.3d 955, 959 (9th Cir. 2002) (quoting Sierra Club v.
Babbitt, 65 F.3d 1502, 1507 (9th Cir. 1995)). Pursuant to the
Administrative Procedure Act, a court may set aside the deci-
sion of an administrative agency such as the Corps only if it
is “arbitrary, capricious, an abuse of discretion, or otherwise
10078 NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS
not in accordance with law.” 5 U.S.C. § 706(2)(A); see Nat’l
Wildlife Fed’n v. Army Corps of Eng’rs, 384 F.3d 1163, 1170
(9th Cir. 2004). We previously have held:
An agency’s action is arbitrary and capricious if the
agency fails to consider an important aspect of a
problem, if the agency offers an explanation for the
decision that is contrary to the evidence, if the agen-
cy’s decision is so implausible that it could not be
ascribed to a difference in view or be the product of
agency expertise, or if the agency’s decision is con-
trary to the governing law.
Lands Council v. Powell, 395 F.3d 1019, 1026 (9th Cir. 2005)
(internal citations omitted). We review an environmental
impact statement “to determine whether it contains ‘a reason-
ably thorough discussion of the significant aspects of the
probable environmental consequences’ ” of a particular proj-
ect. City of Carmel-By-The-Sea v. U.S. Dep’t of Transp., 123
F.3d 1142, 1150 (9th Cir. 1997) (quoting Idaho Conservation
League v. Mumma, 956 F.2d 1508, 1519 (9th Cir. 1992)).
Alternatively phrased, we review agency decisions to ensure
that “the agency has taken a ‘hard look’ at the potential envi-
ronmental consequences of the proposed action.” Klamath-
Siskiyou, 387 F.3d at 993 (quoting Churchill County v. Nor-
ton, 276 F.3d 1060, 1072 (9th Cir. 2001)). In so doing, while
we carefully scrutinize an agency’s actions under NEPA, we
must “be mindful to defer to agency expertise, particularly
with respect to scientific matters within the purview of the
agency.” Klamath-Siskiyou, 387 F.3d at 993; see Anderson v.
Evans, 371 F.3d 475, 489 (9th Cir. 2004).
We review a district court’s decision to exclude extra-
record evidence for abuse of discretion. Sw. Ctr. for Biologi-
cal Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1447 (9th
Cir. 1996).
NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS 10079
IV. Analysis
A. Waiver
As a preliminary matter, we reject the Corps’ and the Spon-
sor Ports’ arguments that NWEA somehow waived its chal-
lenge to the Dredged Material Management Plan and
Supplemental Impact Statement or that it is moot. The district
court addressed the Dredged Material Management Plan and
Supplemental Impact Statement in its summary judgment
order and NWEA refers to this document throughout its brief.
Furthermore, the channel deepening project does not neces-
sarily supersede the channel maintenance project or render
challenge to it moot; if the Corps does not pursue channel
deepening, it is presently slated to pursue channel mainte-
nance as the “No Action Alternative.”
Likewise, the record clearly indicates that NWEA raised
the issue of deep water disposal in the context of cumulative
impact both in the administrative proceedings and the district
court. Therefore, NWEA has not waived these objections and
we review them on the merits.
B. Cumulative Impact on Coastal Erosion
We reject NWEA’s principal claim that the Corps violated
NEPA by failing to take a hard look at the cumulative impact
on coastal erosion of removing significant amounts of sand
from the littoral region. The Corps conducted numerous anal-
yses spanning two environmental impact statements to
address the problem of coastal erosion. The Corps responded
to concerns from interested parties with additional studies and
with those concerns in mind structured its disposal plan to
minimize coastal erosion. The Corps took the requisite hard
look at this issue.
[1] As we have repeatedly held, NEPA imposes procedural
requirements on agencies and does not mandate substantive
10080 NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS
outcomes. Natural Res. Def. Council v. U.S. Forest Serv., 421
F.3d 797, 811 (9th Cir. 2005); see Klamath-Siskiyou, 387 F.3d
at 993; Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 756-57
(2004); Vt. Yankee Nuclear Power Corp. v. Natural Res. Def.
Council, 435 U.S. 519, 558 (1978). For “major Federal
actions significantly affecting the quality of the human envi-
ronment,” 42 U.S.C. § 4332(C), NEPA requires an agency to
prepare an environmental impact statement. Klamath-
Siskiyou, 387 F.3d at 993. An environmental impact statement
“shall provide full and fair discussion of significant environ-
mental impacts and shall inform decisionmakers and the pub-
lic of the reasonable alternatives which would avoid or
minimize adverse impacts or enhance the quality of the
human environment.” 40 C.F.R. § 1502.1.
[2] Pursuant to 40 C.F.R. § 1508.25(c)(3), an environmen-
tal impact statement must consider a proposed project’s “cu-
mulative impact,” which 40 C.F.R. § 1508.7 defines as:
the impact on the environment which results from
the incremental impact of the action when added to
other past, present, and reasonably foreseeable future
actions regardless of what agency (Federal or non-
Federal) or person undertakes such other actions.
Cumulative impacts can result from individually
minor but collectively significant actions taking
place over a period of time.
We have held that an environmental impact statement must
“catalogue adequately past projects in the area” and provide
a “useful analysis of the cumulative impact of past, present,
and future projects.” City of Carmel-By-The-Sea, 123 F.3d at
1160; see Lands Council, 395 F.3d at 1027.
[3] Given this framework, we agree with the district court
that the Corps’ cumulative impact analysis satisfied NEPA’s
“hard look” requirement. NWEA’s main concern is that the
cumulative impact of the channel deepening and Mouth of the
NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS 10081
Columbia River projects, including the former’s plans for dis-
posal of dredged sediment at the Deep Water Site, will
remove a significant amount of sand from the littoral system.
This in turn will exacerbate the estuary’s function as a “sand
sink” that draws sand away from shorelines, thus accelerating
coastal erosion. Within this model, the Corps adequately
addressed the two mechanisms that could potentially lead to
sediment loss. First, the Corps considered direct sediment loss
from disposing of sand in the Deep Water Site, which lies out-
side of the littoral system. The Corps recognized that unfet-
tered use of the Deep Water Site would have adverse
environmental consequences, and structured its plans to mini-
mize disposal there. Second, the Corps examined whether
deepening the navigation channel may change river hydrau-
lics, thus altering the rate of sediment flow within the river
and to the estuary. The Corps concluded that channel deepen-
ing would not have this effect.
Consistent with 40 C.F.R. § 1508.7, the Corps’ analyses
considered not just the channel deepening project, but also its
relationship with other projects. The FSEIS states:
Although the Congress has authorized the channel
improvement project and the MCR project as two
separate projects, the Corps and . . . [the Environ-
mental Protection Agency] have, where appropriate,
coordinated the review of relevant impacts. For
example, the 1999 IFR/EIS reviews the long-term
disposal plan and its impacts for both the channel
improvement and MCR.
10082 NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS
i. Potential Direct Sediment Loss from Deepwater
Disposal of Dredged Material
a. Potential Direct Sediment Loss from the MCR
Project
In challenging the Corps’ actions, NWEA misplaces its
focus on the 2004 FSEIS and fails to consider the Corps’
extensive treatment of deepwater disposal in the 1999 Final
Integrated Feasibility Report and Environmental Impact State-
ment. As the 1999 document demonstrates, the Corps was
clearly aware of the environmental ramifications of disposing
of all of the dredged sediment from the MCR project in the
Deep Water Site.7 That document states:
If the deepwater site is used as intended (4.5 mcy
[million cubic yards] of MCR sand placed per year
for 50 yrs), the implications on the littoral sediment
budget at MCR and adjacent coastal areas could be
profound. The removal of 225 mcy of sand from
MCR (via dredging) and subsequent placement at
the “deepwater” site would be equivalent to remov-
ing the above and below portions of Peacock spit.
The result of such a mass removal of littoral sand
would likely be adverse: Local and possible regional
coastal erosion may result. The stability of MCR jet-
ties may be reduced due to increased toe scour,
resulting from such a littoral sediment deficit.
7
Because the MCR project involves a significantly greater volume of
dredged material potentially available for ocean disposal than channel
deepening and maintenance (225 million cubic yards versus 37 million
cubic yards), Appendix H focuses on the ramifications of deepwater dis-
posal of material from the MCR project. The Corps later modified the
channel deepening project to reduce overall dredging as well as the
amount of channel deepening sediment to be placed in ocean sites. The
2003 FSEIS, and in particular Exhibit J, extensively examines the impact
of removing material from channel deepening and maintenance from the
littoral cell, and concludes that it is negligible.
NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS 10083
As this statement reveals, the Corps was fully aware of the
potential erosion effects entailed by deepwater disposal. Act-
ing upon this knowledge, the Corps evaluated potential sites
and structured its plans to minimize such disposal.
In weighing numerous options for ocean disposal of
dredged material, the Corps consistently considered the poten-
tial for coastal erosion due to sediment loss. In evaluating ten
candidate sites for ocean disposal, the Corps gave “great
weight” to the assumption that “[n]earshore sites have the
greatest potential to keep material in the littoral zone.” Based
on its analysis, the Corps ultimately recommended Site E, the
North Site, and the South Site (these latter two sites ultimately
became the Deep Water Site) for EPA designation as Ocean
Dredged Material Disposal Sites. The Corps further proposed
disposing of material at the North Jetty Site, a non-ocean site
which lies within the littoral region.
Recognizing that the “quantity of dredged material that will
be placed in proposed Site E and the North Jetty Site is uncer-
tain due to the dynamics of the sites,” the Corps proposed a
Deep Water Site that could accommodate excess dredge
spoils. The Corps conducted a “conflict matrix” analysis com-
paring disposal at Site E and the Deep Water Site. Ultimately,
it concluded that the benefits of limited dumping at Site E,
which would preserve that site’s dispersive nature and prevent
wave amplification due to mounding, outweighed the costs of
placing some amount of sediment at the Deep Water Site. As
we have held before, our role is not to substitute our “judg-
ment for that of the agency concerning the wisdom or pru-
dence of a proposed action. Once satisfied that a proposing
agency has taken a ‘hard look’ at a decision’s environmental
consequences, the review is at an end.” State of Cal. v. Block,
690 F.2d 753, 761 (9th Cir. 1982). Here, it is not our province
to assess the wisdom of placing some amount of sediment in
the Deep Water Site. Our role is simply to ensure that the
Corps considered all relevant factors—including the potential
10084 NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS
for such disposal to exacerbate erosion—in arriving at its
decision. The Corps clearly did so.
[4] The Corps not only considered sediment loss, it consci-
entiously structured its disposal plan to minimize it as much
as possible. Exhibit H to Appendix H of the 1999 Final Inte-
grated Feasibility Report and Environmental Impact State-
ment presents a Management and Monitoring Plan which
identifies five objectives, one of which emphasizes keeping
sand within the littoral system and counteracting erosion.
Consistent with the Corps’ finding that placing dredged mate-
rial at water depths shallower than 60 feet maximizes its dis-
persion back into the littoral environment, the Plan requires
disposal of dredged material at Site E and the North Jetty Site
first, with the Deep Water Site representing a non-preferred
last option. While the Final Integrated Feasibility Report and
Environmental Impact Statement states elsewhere that the “in-
tended” use of the Deep Water Site is to accommodate all 225
million cubic yards (“mcy”) of dredged material, that term is
a misnomer. As the Management and Monitoring Plan
reveals, the Corps must first exhaust the dynamic capacity of
Site E and the North Jetty Site before placing any sediment
in the Deep Water Site, which will ultimately contain far less
than 225 mcy of sediment.
Accordingly, in denigrating the Corps’ analyses, NWEA
exaggerates the maximum amount of sediment that the Corps
will place in the Deep Water Site. The most conservative esti-
mate of the long-term dispersive capacity of Site E and the
North Jetty Site is 2 mcy per year, meaning that the Corps
will only have to place 2.5 mcy per year in the Deep Water
Site.8 Other estimates of the dispersive capacity of Site E and
8
This figure appears in the 1999 Final Integrated Feasibility Report and
Environmental Impact Statement and includes the dispersive capacity of
Site E. Presumably, the dispersive capacity of the Shallow Water Site is
even greater than that of Site E because of the Shallow Water Site’s larger
area.
NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS 10085
the North Jetty Site are much higher, and the Final Integrated
Feasibility Report and Environmental Impact Statement states
that “it is possible that the majority (and perhaps all) of the
average annual volume of material could be placed in the
North Jetty Site and Site E.” It is illustrative in this regard that
between 1973 and 1997, continual use of Site E had not
resulted in any persistent mounding. While the Final Inte-
grated Feasibility Report and Environmental Impact State-
ment as well as the FSEIS propose authorization to dispose of
all of the MCR dredged material at the Deep Water Site, the
Corps clearly presents this option only for “contingency plan-
ning purposes” and as representing a “worst case” scenario.
The Corps has never planned to place all of the material from
the MCR project in the Deep Water Site.
Because of how the Corps has structured its disposal plans,
it is not reasonably probable that it will use the entire capacity
of the Deep Water Site. This calls into question whether
NEPA even requires the Corps to analyze the environmental
effects of placing all 225 mcy of sediment in the Deep Water
Site. See California v. Block, 690 F.2d 753, 761 (9th Cir.
1982) (holding that an environmental impact statement must
contain “a reasonably thorough discussion of the significant
aspects of the probable environmental consequences” of a
proposed action) (quoting Trout Unlimited, Inc. v. Morton,
509 F.2d 1276, 1283 (9th Cir. 1974)) (emphasis added). Nev-
ertheless, as discussed above, the Corps did take a hard look
at this remote possibility, and recognized the “profound”
implications of using the entire authorized capacity of the
Deep Water Site. Consequently, the Corps took the additional
step of acting upon this knowledge to ensure that it will dis-
pose of an amount nowhere near 225 mcy at that site.
Strict regulations governing ocean disposal ensure that the
Corps will not dispose of all 225 mcy of sediment in the Deep
Water Site. The 1999 Final Integrated Feasibility Report and
Environmental Impact Statement proposes designating two
Ocean Dredged Material Disposal Sites, Site E (later, the
10086 NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS
Shallow Water Site) and the Deep Water Site. However, the
EPA maintains final authority to designate these sites for
ocean dumping. See 33 U.S.C. § 1412. As part of this process,
sites must have a management and monitoring plan which
defines and limits dumping practices allowed there. See 40
C.F.R. § 228.3. As discussed, the Management and Monitor-
ing Plan for the channel deepening project, which is part of
the 1999 Final Integrated Feasibility Report and Environmen-
tal Impact Statement, clearly establishes that the Corps will
dispose of dredged material in the littoral sites first, reserving
the Deep Water Site only for excess spoils. Here, the Corps’
“preference” for disposing in the littoral system is much more
than that term implies. Because the Management and Moni-
toring Plan establishes that the Corps will dispose of material
in the littoral system first, deviation from that practice may
lead to de-designation of the Deep Water Site. Furthermore,
the Plan itself outlines several options for potentially altering
disposal practices based upon an ongoing review of environ-
mental impact: operational changes, changes in site location,
and discontinuing disposal at a particular site. Thus, in addi-
tion to establishing a plan to minimize sediment loss, the
Final Integrated Feasibility Report and Environmental Impact
Statement proposes a plan to monitor, alter, and perhaps even
terminate dumping at the Deep Water Site in order to mini-
mize negative environmental impacts.
Further demonstrating the Corps’ hard look, in addition to
present and future plans to mitigate sediment loss, the Corps
has changed past disposal practices to maintain the maximum
amount of sediment within the littoral cell. In 1997, the Corps
temporarily expanded Site E because of its “high dispersion
rate” and the potential for dredged material placed there to be
“re-introduced into the littoral environment of the Washington
coast.” This move arose in part from a request by the Wash-
ington Department of Ecology in order to retard erosion of
coastal beaches.
The record clearly reveals that the Corps considered the
potential for coastal erosion due to sediment loss. The Corps
NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS 10087
even structured disposal plans to minimize this possibility as
much as possible. We thus hold that the Corps took a hard
look at the effects of removing MCR sediment from the litto-
ral system.
b. Potential Direct Sediment Loss from the
Channel Deepening Project
Similarly, the 2003 FSEIS took a hard look at the effects
of removing sediment from channel deepening, and con-
cluded that such practice would not diminish sediment avail-
ability in the littoral cell. Further undermining NWEA’s
concerns, between the 1999 Final Integrated Feasibility
Report and Environmental Impact Statement and the 2003
FSEIS, the Corps altered the proposed project, reducing both
the volume of proposed dredging as well as the amount of
material from channel deepening slated for ocean disposal. As
reflected in the 2003 FSEIS, the Corps concluded that, as
altered, the channel deepening project simply would not
remove enough sediment to make an environmental differ-
ence. Construction and 20 years of maintenance of the pro-
posed 43-foot navigation channel would remove an estimated
70 mcy of sand from the Columbia River and place it in
upland disposal sites. Approximately 40 mcy of dredged sand
would be disposed of back along the navigation channel or in
ecosystem restoration sites in the estuary. Critically, the anal-
ysis reveals that the volume of sand removed by dredging
would not reduce the available sand supply in the riverbed.
The FSEIS concludes:
[T]he removal of sand from the river will not alter
sediment transport to the estuary (Exhibit J). The
volume to be dredged over the life of the project is
only a tiny fraction of the total volume of sand in the
riverbed. In addition, transport potential, rather than
sand supply, is the limiting factor in sediment supply
to the estuary.
10088 NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS
SER 295. Ultimately, by considering the disposal of material
dredged from both the MCR and the navigation channel, the
Corps took a hard look at the effects of directly removing sed-
iment from the littoral cell through operation of the channel
deepening project.
ii. Potential Sediment Loss from Changes in River
Hydraulics and Sediment Transport Rates
The Corps also took a hard look at the second mechanism
by which channel deepening could potentially reduce sedi-
ment availability in the estuary: changes to river hydraulics
and sediment transport rates. Exhibit J to the 2003 FSEIS
thoroughly analyzes this dynamic and concludes that channel
deepening will have no appreciable impact on sediment trans-
port. The Corps prepared Exhibit J in direct response to con-
cerns from Washington and Oregon in 2000 regarding
sediment transport. Thus throughout numerous years of study,
the Corps did not simply stake out a position and attempt to
defend it; consistent with the dictates of a “hard look,” the
Corps remained open to input from stakeholders and con-
ducted new analyses to address their concerns. See Friends of
the Payette v. Horseshoe Bend Hydroelectric Co., 988 F.2d
989, 995 (9th Cir. 1993).
[5] As a threshold matter, Exhibit J scrupulously considers
the cumulative impact of the channel deepening project on
sediment availability in conjunction with other projects,
including the MCR project, jetties, and the Federal Columbia
River Power System. The FSEIS reveals that river flow rate
mediated by the Federal Columbia River Power System dams
—not any past or future dredging in the navigation channel—
is the overwhelming driver of changes to sediment availability
in the estuary: “The reduction in the Columbia River’s net
sand discharge to the MCR since the early 1900’s is related
to lower Columbia River flood discharges and not the naviga-
tion channel or the MCR jetties.” Regarding the MCR jetties,
the FSEIS notes that they have had some impact on sediment
NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS 10089
availability, by reducing sand movement from the MCR into
Baker Bay and across Clatsop Spit into the south channel and
by causing a large discharge of sand from the MCR to the
ocean. However, Exhibit J repeatedly underscores the reality
that “[d]eepening will not reduce the available sand supply
and the expected hydraulic changes [from channel deepening]
are too small to measurably alter sand transport or erosion/
accretion in the river or estuary.” Ultimately, “deepening the
navigation channel in the river and estuary will not alter the
sand transport through the MCR nor the sediment budget of
the littoral cell.” The independent Sustainable Ecosystems
Institute expert panel subsequently affirmed the Corps’ exten-
sive sedimentation analyses. As a further indication of the
comprehensiveness of the Corps’ studies, Washington and
Oregon withdrew their objections and certified the project
upon considering the new analyses.
* * *
NWEA cites Klamath-Siskiyou Wildlands Ctr. v. Bureau of
Land Mgmt., 387 F.3d 989, 993 (9th Cir. 2004), to support its
contention that the Corps’ cumulative impact analyses are
deficient. That case, however, is clearly distinguishable. In
Klamath-Siskiyou, the Bureau of Land Management had
divided an original timber-sale project into four component
timber sales, preparing environmental assessments for two of
them. 387 F.3d at 991-92. Upon challenge, we held that the
two environmental assessments were “legally insufficient”
because they “do not sufficiently identify or discuss the incre-
mental impact that can be expected from each successive tim-
ber sale, or how those individual impacts might combine or
synergistically interact with each other to affect the . . . envi-
ronment.” 387 F.3d at 997. Klamath-Siskiyou involved one
integrated project that was divided into four sub-projects,
each of which the BLM independently analyzed, thus obscur-
ing the cumulative impact of successive, related actions. Our
situation is quite different. Here, the 1999 Final Integrated
Feasibility Report and Environmental Impact Statement and
10090 NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS
the 2003 FSEIS take a “hard look” at the cumulative impact
of the channel deepening and dredged material disposal proj-
ect over an extended period of time and in conjunction with
the Mouth of the Columbia River, Federal Columbia River
Power System, and other related projects along the Columbia
River. As noted, the 1999 Final Integrated Feasibility Report
and Environmental Impact Statement demonstrates the Corps’
awareness of the “profound” implications of disposing of all
225 mcy of material dredged from the MCR at the Deep
Water Site. The Corps’ hard look at the problem of coastal
erosion is further evidenced by its decision to act upon that
knowledge and structure its plan to minimize deepwater dis-
posal.
In conducting and refining these analyses, the Corps has
not acted alone. While not dispositive, we have found it “sig-
nificant” when other governmental agencies responsible for
environmental protection have sanctioned a particular proj-
ect’s environmental analyses. See Friends of the Payette, 988
F.2d at 995. Here, the Environmental Protection Agency acted
as a Cooperating Agency on both environmental impact state-
ments and validated their findings. As mentioned, the Corps
responded to the concerns of Washington and Oregon by pro-
viding additional analyses, and they have both certified the
project.
[6] NEPA requires not that an agency engage in the most
exhaustive environmental analysis theoretically possible, but
that it take a “hard look” at relevant factors. The Corps has
done so, and even took the additional step of altering disposal
plans to minimize sediment loss. Through study, restudy, sub-
mission to review by independent experts, and modification
of plans, the Corps has taken a hard look at the cumulative
impact of the channel deepening project, including disposal of
dredged material, on sediment availability and coastal erosion.9
9
NWEA also argues that the Corps should have considered the channel
deepening and MCR projects as “connected actions,” and thus jointly
NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS 10091
C. Cumulative Impact Along with Past and Future
Actions
We also reject NWEA’s contention that the Corps failed to
evaluate the cumulative impact of the channel deepening proj-
ect in light of past and future actions. See Lands Council, 395
F.3d at 1027 (“Cumulative effects analysis requires the Final
Environmental Impact Statement to analyze the impact of a
proposed project in light of that project’s interaction with the
effects of past, current, and reasonably foreseeable future
projects.”).
i. Cumulative Impact, Along with Past Actions,
On Salinity
[7] NWEA argues that the FSEIS does not adequately ana-
lyze the cumulative effects of salinity increases from past
projects, notably the MCR project. We disagree. Because the
FSEIS concludes that the channel deepening project will have
virtually no effect on salinity, detailed cataloguing of past
projects’ impact on salinity would not have “informed analy-
sis about alternatives presented for the current project,” and
was unnecessary. Id.
Contrary to NWEA’s assessment, the Corps’ extensive
analyses of the channel deepening project’s impact on salinity
did indeed include data encompassing past projects. See infra,
Part IV.D.ii. The Corps’ analyses included historical data
regarding salinity intrusion dating back to the 1980s. The
evaluated both in the FSEIS. See 40 C.F.R. § 1508.25(a)(1) (stating that
connected actions fall within the required scope of an environmental
impact statement). In its summary judgment order, the district court ruled
that the channel deepening and MCR projects are not connected actions,
and that joint evaluation of the two was only required to the extent that
they had a cumulative impact on the environment. NWEA does not appeal
the district court’s ruling that the two projects are not connected actions,
and instead focuses its arguments on the FSEIS’ cumulative impact analy-
sis.
10092 NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS
FSEIS references the salinity analysis in the 1983 environ-
mental impact statement for the MCR project, which antici-
pated that the MCR project would yield minor salinity
increases in the estuary. The Corps also stated during the
comment period prior to issuing the FSEIS that the “descrip-
tion of existing conditions includes the cumulative impact of
historic actions.” The Sustainable Ecosystems Institute panel
agreed, stating that “the baseline for evaluating information
should be the current conditions or state of the physical and
biological components and relationships of the lower Colum-
bia River ecosystems.” Critically, numerous present-day
studies cited in the FSEIS reveal that the channel deepening
project will have little or no impact on salinity intrusion.
NWEA relies on Lands Council, which states that “the
Environmental Impact Statement must give a sufficiently
detailed catalogue of past, present, and future projects, and
provide adequate analysis about how these projects, and dif-
ferences between the projects, are thought to have impacted
the environment.” 395 F.3d at 1028. Lands Council held as
insufficient an environmental impact statement that had “no
discussion of the environmental impact from past [timber har-
vesting] projects on an individual basis, which might have
informed analysis about alternatives presented for the current
project.” Id. at 1027 (emphasis added). Cataloguing past log-
ging projects’ environmental impact would serve the purpose
of promoting “an informed assessment of environmental con-
siderations and policy choices by the public and agency per-
sonnel upon review of the Final Environmental Impact
Statement.” Id. at 1028. Here, however, numerous studies in
the FSEIS demonstrate that the channel deepening project
would have virtually no effect on salinity. Therefore, in this
case, cataloguing past projects’ effects on salinity would not
have informed assessments about the project and its alterna-
tives, and the FSEIS’ analysis of this topic was sufficient.
NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS 10093
ii. Cumulative Impact, Along with MCR Jetties
and Upstream Dams, on Sediment Transport
We reject NWEA’s argument that the Corps did not ade-
quately consider the channel deepening project’s cumulative
effect on sediment transport in light of existing MCR jetties
and upstream dams. One of the explicit objectives of Exhibit
J was to address “the impact of jetty construction and flow
regulation on sediment transport.” In cataloguing the effects
of MCR jetties, the Corps recognizes that
[t]he MCR jetties reduced the sand transport from
the MCR into Baker Bay and across Clatsop Spit
into the south channel caused by ocean waves. How-
ever, the jetties caused a large discharge from the
MCR and vicinity, to the ocean. The sand eroded
from the inlet and south flank of the inlet following
jetty construction has deposited in the outer delta, on
Peacock Spit, and the shorelines along Long Beach,
Washington, and Clatsop Plains, Oregon.
Furthermore, the Corps explains that the MCR jetties have
“caused a large amount of sediment to accrete in the littoral
zone north and south of the entrance” to the Columbia River.
Regarding upstream dams, the Corps emphasizes that their
control over flood discharges has significantly impacted sedi-
ment flow. Flood discharges, caused by dams, directly affect
transport capacity and account for the vast bulk of historical
changes in sediment budget.
[8] Upon extensively cataloguing these past effects, the
FSEIS concludes that the channel deepening project’s incre-
mental contribution to altering sediment flow would be negli-
gible. As Exhibit J states, “[T]he reduction in the Columbia
River’s net sand discharge to the MCR since the early 1900’s
is related to lower Columbia River flood discharges and not
the navigation channel or the MCR jetties.” The Corps thus
concludes that, after completion of the channel deepening
10094 NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS
project, “there is not likely to be a detectable change in the
sediment budget or sand transport within the Columbia
River.” We thus hold that the Corps properly considered the
cumulative impact of the proposed project with MCR jetties
and upstream dams.
iii. Cumulative Impact Along with Future Actions
[9] Contrary to NWEA’s assertion, the Corps adequately
addressed foreseeable future impacts, particularly from ongo-
ing operation of the MCR project. Regarding such future
impacts, this court has held that “[g]eneral statements about
‘possible’ effects and ‘some risk’ do not constitute a ‘hard
look’ absent a justification regarding why more definitive
information could not be provided.” Neighbors of Cuddy
Mountain v. U.S. Forest Serv., 137 F.3d 1372, 1380 (9th Cir.
1998) (citation omitted). As discussed above, it is precisely
because the Corps was aware of the negative implications of
disposing of 20 years’ worth of MCR dredgings at the Deep
Water Site that it developed a Management and Monitoring
Plan to prioritize disposal of dredged sediment at the Shallow
Water Site and North Jetty Site. Furthermore, the MCR proj-
ect has operated consistently since 1983 and “[t]here is no
plan to deepen or otherwise change the . . . MCR project at
this time.” The Corps took a hard look at the anticipated dis-
posal of 4.5 mcy of dredged sediment per year from the MCR
project and planned appropriately to minimize coastal erosion.
D. Direct Impacts
i. Direct Impact on River Toxicity
We further reject NWEA’s argument that the Corps’ analy-
sis of the effects of channel deepening on toxicity is deficient
because it failed to test areas outside the navigation channel
for toxins. As a preliminary matter, the Corps’ 2001 Biologi-
cal Assessment contradicts the premise underlying NWEA’s
criticism, for it finds that “[n]earshore sediments are expected
NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS 10095
to be unaffected by dredging activities associated with this proj-
ect.”10 Evaluating nearshore sediments would thus have little
bearing on the channel deepening project’s impact on river
toxicity, since dredging is not expected to disturb these sedi-
ments. The Corps did acknowledge that a limited amount of
side-slope adjustment would occur over the course of five to
ten years in five discrete locations along the river because
these areas have received previously dredged material.
Because dredged material is clean sand, however, contami-
nant sampling in these areas was unnecessary because this
sediment would not have contributed to river toxicity.
[10] Nevertheless, as explained in response to NWEA’s
comments on the draft FSEIS, the Corps did test for toxins
outside of the navigation channel. Specifically, tests con-
ducted pursuant to the Dredge Material Evaluation Frame-
work concluded that “[n]o established level of concern was
exceeded in any of the 23 samples tested” for metals, polycy-
clic aromatic hydrocarbons, and pesticide/polychlorinated
biphenyls, including two samples from outside the navigation
channel. The Biological Assessment notes that risks from
shoreline sediments were higher than that of channel sedi-
ments, and were higher upstream than in the lower Columbia
River. However, it concludes that “[t]he potential for cumula-
tive risks appears negligible because all contaminants posed
negligible risks.” The FSEIS ultimately concludes that “while
historic actions have resulted in localized sediment contami-
nation in some parts of the larger project area (i.e., outside of
the areas to be dredged), the channel improvement project is
not expected to make an incremental contribution to sediment
quality degradation.” It is significant to note that the indepen-
dent Sustainable Ecosystems Institute panel validated these
analyses by concluding that “contamination was essentially a
non-issue, even if suspended on fine sediments, and especially
10
The 2001 Biological Assessment appears in Exhibit H of the 2003
FSEIS.
10096 NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS
with regard to channel deepening where the sediments are
known to be relatively clean.”
ii. Direct Impact on Salinity
[11] NWEA fails in its argument that the Corps did not take
a hard look at the channel deepening project’s direct effects
on estuary salinity because it did not employ appropriate ana-
lytic tools. For the 1999 Final Integrated Feasibility Report
and Environmental Impact Statement, the Corps analyzed
salinity by utilizing the so-called WES RMA-10 methodol-
ogy. While NWEA argues that this model is outdated, it offers
no evidence that the passage of time has decreased its effec-
tiveness; this model has been “successfully applied” to study
estuaries in Cape Fear River, NC; San Francisco Bay; and
Galveston, TX. The Corps’ analysis concluded that “[n]o sig-
nificant biological impact would result from salinity changes
predicted for the proposed channel deepening.” A second
study prompted by the Sustainable Ecosystems Institute panel
updated the first model to accommodate concerns about low
flow conditions and again concluded that “the channel deep-
ening actions will have little to no impact on salinity intru-
sions.” In a third study, commissioned for the 2003 FSEIS,
the Oregon Health and Sciences University/Oregon Graduate
Institute employed a different modeling technology and again
concluded that channel deepening would produce insignifi-
cant changes in salinity intrusion. As with the previous WES
RMA-10 study, the Sustainable Ecosystems Institute panel
reviewed the OHSU/OGI study and confirmed the results.
While NWEA challenges the validity of the new OHSU/OGI
model, it provides no cogent challenge to the validity of the
WES RMA-10 model, which led to similar findings and has
been effectively applied in a multitude of contexts.
As a final attack on the salinity analysis, NWEA argues
that the Corps used outdated bathymetric data in its model,
thus falling below NEPA standards. See Lands Council, 395
F.3d at 1031 (holding that outdated data may render an analy-
NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS 10097
sis inadequate under NEPA). NWEA contends that bank-to-
bank bathymetric surveys are necessary to produce the requi-
site data, and that the Corps last conducted one in 1958. How-
ever, NWEA does not demonstrate why bank-to-bank surveys
are necessary. Furthermore, the Corps has conducted annual
cross-line surveys over the entire length of the project area
and surveyed most of the shallow-water areas of the estuary
more recently around 1980.
E. Economic Impacts
[12] We also reject NWEA’s challenge to the Corps’ eco-
nomic analysis. We have recognized that “[i]naccurate eco-
nomic information may defeat the purpose of an . . .
[environmental impact statement] by ‘impairing the agency’s
consideration of the adverse environmental effects’ and by
‘skewing the public’s evaluation’ of the proposed agency
action.” Natural Res. Def. Council, 421 F.3d at 81 (quoting
Hughes River Watershed Conservancy v. Glickman, 81 F.3d
437, 446-48 (4th Cir. 1996)). However, the Corps’ extensive
economic analyses in both the 1999 Final Integrated Feasibil-
ity Report and Environmental Impact Statement and the 2003
FSEIS satisfy NEPA’s requirements.
NWEA first argues that the Corps violated NEPA because
“[t]he Corps’ refusal to consider the cumulative connected,
direct impacts of all related dredging and disposal projects
and to assess the full impacts of the deepening project . . .
caused the agency to ignore substantial project costs and ways
of avoiding those costs.” These allegations merely represent
an attempt to refashion substantive criticisms of the Corps’
considerations of cumulative impacts into arguments about
faulty cost analysis. Given that the Corps took a hard look at
these substantive issues, these challenges have already been
addressed.
[13] We reject the contention that the Corps failed to ade-
quately consider costs associated with jetty deterioration and
10098 NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS
coastal erosion. Since the Corps’ analyses reasonably con-
cluded that the channel deepening project would not exacer-
bate jetty deterioration or coastal erosion, excluding these
items from the anticipated costs of the project was appropri-
ate.
[14] The Corps adequately considered potential declines in
shipping traffic. For example, Exhibit M of the FSEIS
assumes that “the Columbia River loses containerized cargo
market share to Puget Sound ports.” The 2003 FSEIS presents
a much more conservative market capture rate for the Port of
Portland than had the 1999 Final Integrated Feasibility Report
and Environmental Impact Statement. Furthermore, an inde-
pendent technical review of the benefits and costs analysis in
the draft FSEIS stated that the assumptions and overall con-
clusions of the benefits analysis were “reasonable” and that
“data were generally used properly in the overall analysis.”
NWEA does not provide any clear authority for its argu-
ment that the Corps is required to categorize benefits as accru-
ing to domestic or foreign entities. See 33 U.S.C. § 2282(a)
(requiring merely that an agency “describe, with reasonable
certainty, the economic, environmental, and social benefits
and detriments” of a proposed plan). Indeed, agency guide-
lines cited by both the Corps and NWEA state that calcula-
tions of national economic development should include
shipments involving foreign origins and destinations. See
Economic and Environmental Principles and Guidelines for
Water and Related Land Resources Implementation Studies,
Mar. 10, 1983, at 62, available at http://www.iwr.usace.army.
mil/iwr/pdf/p&g.pdf (last visited Feb. 23, 2006)
(“Guidelines”). These guidelines require the Corps to include
benefits accruing to foreign flag vessels and do not require
segregation of foreign and domestic benefits in analyses of
national economic development.
We reject NWEA’s argument that the Corps should have
engaged in a multi-port analysis to assess whether any gains
NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS 10099
from the channel deepening project would come at the
expense of other domestic ports. An Economic Technical
Review panel, convened by the Corps, examined the Corps’
economic analysis and concluded that “the results of a ‘multi-
port analysis’ would be unlikely to tip the cost-benefit scales.”
(emphasis in original). In any event, the Corps’ statement that
a multi-port analysis would likely result in higher projected
benefits appears reasonable. When defining the “economic
study area” for a proposed navigation improvement project,
an agency should, when appropriate, include nearby, existing
harbors which may experience a decrease in traffic after the
proposed improvement. Guidelines 62. However, in calculat-
ing the economic benefits of the proposed project, the agency
should consider the aggregate reduction in shipping costs
across the entire economic study area. Thus, the fact that an
efficiency-enhancing improvement may draw traffic away
from less efficient harbors actually contributes to, rather than
subtracts from, the anticipated benefits of that improvement.
Accordingly, “Cost reduction benefits sufficient to divert traf-
fic from established distribution patterns and trade routes are
navigation project benefits.” Guidelines 62 (emphasis added).
Ultimately, NWEA has not demonstrated that the absence of
a multi-port analysis renders the Corps’ analysis arbitrary and
capricious.
The Corps hired two independent panels of experts to
review, respectively, the costs and benefits contained in its
economic analyses. Both panels concluded that the Corps’
analyses were reasonable. Based on our independent examina-
tion of the record, we likewise find that the Corps’ economic
analyses satisfied NEPA’s requirements.
F. Exclusion of the Niemi Declaration
[15] Finally, we hold that the district court did not abuse its
discretion by striking the declaration of economist Ernest
Niemi. Niemi stated in his declaration that he prepared it at
NWEA’s request to “determine whether or not the FSEIS pro-
10100 NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS
vides a misleading description of the Project’s potential eco-
nomic impacts.” Quoting Asarco, Inc. v. EPA, 616 F.2d 1153,
1160 (9th Cir. 1980), the district court struck the declaration
because “consideration of extra-record evidence ‘to determine
the correctness . . . [or] wisdom of the agency’s decision is
not permitted.’ ” The district court acted well within its dis-
cretion to do so.
We have held that review of agency action under NEPA is
limited to the administrative record and may only be
expanded beyond the record to explain agency decisions.
Friends of the Payette, 988 F.2d at 997; see Love v. Thomas,
858 F.2d 1347, 1356 (9th Cir. 1988). Accordingly, adminis-
trative review disfavors consideration of extra-record evi-
dence. Florida Power & Light Co. v. Lorion, 470 U.S. 729,
743 (1985) (“ ‘[T]he focal point for judicial review should be
the administrative record already in existence, not some new
record made initially in the reviewing court.’ ”) (quoting
Camp v. Pitts, 411 U.S. 138, 142 (1973)). Here, the adminis-
trative record is adequate to explain the Corps’ decisions and
reveals that the agency has taken a hard look at all pertinent
factors.
We have previously carved out a discrete set of narrow
exceptions to the general rule against extra-record evidence,
none of which are applicable in this case. As we held in Lands
Council:
In limited circumstances, district courts are permit-
ted to admit extra-record evidence: (1) if admission
is necessary to determine “whether the agency has
considered all relevant factors and has explained its
decision,” (2) if “the agency has relied on documents
not in the record,” (3) “when supplementing the
record is necessary to explain technical terms or
complex subject matter,” or (4) “when plaintiffs
make a showing of agency bad faith.”
NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS 10101
Lands Council, 395 F.3d at 1030 (quoting Sw. Ctr. for Biolog-
ical Diversity, 100 F.3d at 1450). Here, as mentioned, the
record reveals that the Corps considered all relevant factors
and provides an adequate basis for explaining the Corps’ deci-
sions. NWEA has not demonstrated that the Niemi declaration
was the sole source of any vital information without which
judicial review was “straitjacketed.” See Asarco, 616 F.2d at
1160. Furthermore, NWEA does not allege that the Corps
relied on documents outside the record or that it acted in bad
faith. Finally, the Niemi declaration and its attachments
address fairly straightforward economic aspects of the Corps’
analysis, not technical and scientific analyses that might
require further explanation. Given the failure of NWEA to
establish any exception to the general rule against allowing
extra-record evidence, it was not an abuse of discretion for the
district court to strike Niemi’s declaration. See Sw. Ctr. for
Biological Diversity, 100 F.3d at 1447.
V. Conclusion
[16] It is not the office of this court to pass upon the wis-
dom of an agency action or to require an agency to study a
proposed action ad infinitum. Our role is simply to assure that
the agency has taken a hard look at the proposed action. In
this case, the Corps has demonstrated the hard look by per-
forming exhaustive studies over numerous years, soliciting
and accommodating input from stakeholders, and thoroughly
re-analyzing areas of particular concern. The Corps consid-
ered deepwater disposal of sediment and modified its plans in
order to minimize sediment loss. It studied potential changes
to river hydraulics and concluded that there would be none.
It analyzed salinity effects on three separate occasions using
current data. It examined toxicity, both within and without the
navigation channel. It assessed economic impacts using realis-
tic measurements of the project’s costs and benefits. The
Corps did not simply consider the channel deepening project
in isolation, but analyzed its cumulative impact in conjunction
with the MCR and other projects. The Corps responded to
10102 NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS
concerns from Oregon and Washington about sediment avail-
ability and provided additional analyses that led the states to
certify the project. The Corps subjected its analyses to review
by independent scientists who subsequently verified the
Corps’ findings. In light of all of the above, we agree with the
district court that the Corps took the required hard look. The
judgment of the district court is AFFIRMED.
NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS 10103
Volume 2 of 2
10104 NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS
B. FLETCHER, Circuit Judge, dissenting:
The Columbia River stretches more than 1,200 miles from
its headwaters in Canada to the Pacific Ocean. It drains an
enormous swath of the northwestern United States (258,000
square miles). This great river empties more water into the
Pacific Ocean than any other river in North or South America.
Description: Columbia River Basin, United States Geological
Survey at http://www.vulcan.wr.usgs.gov/Volcanoes/
Washington/ColumbiaRiver/description_columbia_river.html
(last visited June 26, 2006). Shipping and trade are just one
dimension of the Columbia River’s importance to the North-
west. The Columbia River is central to the life of man, beast,
and fish in the Northwest; it is a complex system defined by
interdependencies.
Perhaps the most iconic of these interdependencies is that
among the river, salmon, and fishermen. A healthy river is
vital to endangered salmon and steelhead trout and to the fish-
ermen who rely on these fish. Virtual World, Columbia River,
The National Geographic Society at http://www.national
geographic.com/earthpulse/columbia/index_flash.html (last
visited June 26, 2006). Salmon and steelhead are anadromous
— they spend the first two years of their lives in fresh water,
like the cool waters of the upper reaches of the Columbia.
These fish then swim to sea, resting and adjusting in the criti-
cal estuary at the conjunction of fresh and salt water. After a
few years in the ocean, the adult salmon and steelhead return
to the fresh waters of the Columbia to reproduce, swimming
upstream to the places where they were hatched. The Colum-
bia River is vital salmon and steelhead habitat and was once
teeming with these fish. Sadly, salmon and steelhead are in
serious decline, decimated by obstruction of passage because
of dams and destruction of habitat. In fact, this year sport-
fishing on the Columbia was closed until very recently
because the numbers of returning fish are perilously low.
Salmon Fishing Halted on Columbia River: Concern About a
Ten-fold Decrease in Chinook Populations Spurs Action, Jeff
NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS 10105
Barnard, Associated Press (Apr. 22, 2006). Major efforts to
reverse their decline by easing the passage through dams and
other measures are ongoing.
The Army Corps of Engineers proposes deepening the ship-
ping channel that runs from the mouth of the river to its ports,
including particularly Portland, from forty-feet to forty-three-
feet deep. We are presented with Northwest Environmental
Advocates’ challenge to the Army Corps’ compliance with
National Environmental Policy Act (NEPA). Northwest Envi-
ronmental Advocates (NWEA) argues, and I agree, that the
Army Corps has failed to satisfy its obligations under NEPA
to adequately study either the direct, the indirect, or the cumu-
lative effects of channel deepening, particularly the impacts of
dredging upon coastal erosion, release of toxicity, and estuary
salinity, that affect both humans and salmon. In addition, the
Corps’ economic analysis is deeply flawed — adopting a
methodology for measuring the costs and benefits associated
with channel deepening that enables it to avoid consideration
of economic reality and to present a far rosier picture of the
economics of channel deepening than is realistic. The Corps
has certainly produced an enormous record during this NEPA
process; however, simply producing a record of the size pre-
sented to us in this case does not mean that the agency has
answered the correct questions, undertaken relevant studies,
or adopted appropriate methodologies. The Army Corps has
not met its obligations to take a “hard look” at the direct, indi-
rect, and cumulative impacts of deepening the Columbia
River channel, and its economic analysis is obviously flawed.
A serious look at the economics of the project suggests that
it is like Kodiak’s proposed bridge to nowhere.
My concerns in this important case are heightened by the
enormity of the consequences of a wrong decision. Adequate
fact-finding and thorough analysis, which are at the core of
NEPA, are all-important to make sure that the Army Corps’
decision in the end is the right one. The Columbia River is too
10106 NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS
important a resource for all of us to allow its misuse. I, there-
fore, respectfully dissent.
In light of these serious problems, we should reverse and
remand for the agency to undertake a more thorough study of
the impacts of channel deepening and the associated ocean
disposal site on coastal erosion; a scientifically-sound analysis
of changes to toxicity and salinity in the river and estuary; and
a more rigorous look at the economics of the proposed proj-
ect. Too much is at stake to permit the Corps to move forward
with such incomplete and inadequate information. NEPA for-
bids it.
I. THE CORPS’ ECONOMIC ANALYSIS
I have much to criticize about the Corps’ failure to consider
adequately the environmental consequences of its proposed
action. I will get to that. But I choose to first talk about its dis-
graceful attempt to justify the dollars and cents of its proposed
project. This should not come as a surprise to any of us. The
Corps is wont to undervalue costs and overvalue benefits so
that it can get on with its mission—constructing water projects.1
Here, instead of objectively looking at whether the pro-
posed project is a net economic benefit to the American econ-
omy, it has chosen a method of analysis that reaches its
desired result—admitted even by it as perhaps not the best
methodology—but a methodology that justifies the project. It
ignores salient facts: Northwest ports (Puget Sound and
Grays Harbor) can handle the freight and offer safer shorter
transit—the river trip is longer (one-hundred miles from the
1
Cf. Felicity Barringer, Senate Backs New Controls for Projects by
Engineers, N.Y. TIMES, July 20, 2006, at A18 (detailing a Senate bill
requiring independent panels of scientific and economic experts to evalu-
ate potential Corps water projects); Editorial, A Chance to Reform the
Corps, N.Y. TIMES, July 19, 2006, at A20 (praising the Senate bill and
noting several studies finding that the Corps regularly inflated economic
benefits and understated potential environmental costs).
NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS 10107
bar to Portland) and fraught with hazards (the shifting bar at
the mouth and shifting sand bars up river). Two-thirds of the
container ship business has already left the river. The Portland
Port that is up the Willamette River cannot be deepened
because of pollution. No wonder the Corps declined to con-
sider displacement of traffic from one American port to
another. It insisted on including supposed benefit to foreign
ships as part of the benefit. Should American taxpayers take
comfort that foreign bottoms are the principal beneficiaries of
any economies in the project?
What about the cost side? No analysis is made of the costs
of potential devastating erosion that may result to the Wash-
ington and Oregon coastlines and the jetties.
The gravamen of Appellant’s claims, with which I agree, is
that the Army Corp’s benefit-cost ratio of $1.66 to $1 is inac-
curate because the agency has failed to consider several fac-
tors, resulting in an overstatement of the project’s economic
benefits and the understatement of its costs. Appellant argues:
(1) that the agency understated the costs associated with the
project by failing to consider environmental externalities
associated with channel deepening and disposal of dredged
material and (2) that the agency overstated the benefits associ-
ated with channel deepening by not distinguishing benefits to
the U.S. economy from those to foreign parties, not consider-
ing declining container-ship traffic into the Columbia River,
and not undertaking a multi-port analysis.
The majority agrees that “[i]naccurate economic informa-
tion may defeat the purpose of an EIS by ‘impairing the agen-
cy’s consideration of the adverse environmental effects’ and
by ‘skewing the public’s evaluation’ of the proposed agency
action.” Natural Res. Def. Council v. U.S. Forest Serv., 421
F.3d 797, 811 (9th Cir. 2005) (quoting Hughes River Water-
shed Conservancy v. Glickman, 81 F.3d 437, 446 (4th Cir.
1996)). In Natural Resources Defense Council, we held that
the Forest Service’s inflated assessment of market demand for
10108 NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS
timber from the Tongass National Forest “subverted NEPA’s
purpose of providing decision makers and the public with an
accurate assessment of the information relevant to evaluate”
the agency’s proposed action. Id. at 812. A similar finding is
required here: the agency’s economic analysis does not pro-
vide an accurate assessment of the costs and benefits of the
planned channel-deepening project because of its failure to
undertake analysis that could decrease the benefit-cost ratio.
A. Costs of Deep-Water Disposal, Coastal Erosion &
Mouth of the Columbia River Jetty Erosion
It is apparent that the agency’s analysis of the economic
costs associated with this project was insufficient. First off,
because the agency did not consider the impacts from coastal
erosion resulting from removing sand from the littoral system
and the impacts of channel deepening on the MCR jetties, it
follows that the economic analysis is similarly incomplete for
failing to consider the potential costs associated with jetty and
coastal erosion. In this regard, the agency’s analysis of costs
suffers from the same incompleteness as its analysis of the
cumulative effects of deep-water disposal.
The majority notes that the FSEIS nowhere finds that the
jetties at the Mouth of the Columbia River will be undermined
and will require repair as a result of the channel-deepening
project. That’s because it did not consider the probability of
erosion that would result from disposal outside the littoral
system. This is the very type of issue for which Niemi’s dec-
laration should have been admitted since it pointed out factors
which the agency did not consider but should have. The
Corps, without analysis of facts, says that channel deepening
will not undermine the jetties, but Niemi presents credible
evidence to the contrary, evidence that the Corps should have
considered. The correct path is to remand to the agency for a
complete examination of these potential costs.
As the majority concedes, the erosion damage from the
Corps’ past practices has been considerable. The Corps tells
NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS 10109
us it has changed its ways to minimize erosion from the MCR
dredging and the construction of the jetties. But it tells us
nowhere what steps it would take to control devastating ero-
sion that would occur if considerable dredge material is put in
the deep-sea site it has prepared to receive it. Nor has it sug-
gested the costs that would be involved.
B. Benefits to U.S. Economy and Lack of Multi-Port
Analysis
In addition to the fact that the Corps has understated costs
associated with the channel deepening project, the Corps
appears to have overstated the economic benefits of the chan-
nel deepening by (a) failing to adequately account for dis-
placement of shipping and trade from one American port to
another; (b) failing to consider what if any of the benefits
associated with channel deepening would accrue to the U.S.
economy; and (c) failing to undertake a multi-port analysis
that might well show no net benefit to the U.S. economy from
the channel deepening. The Corps’ analysis of the economic
benefits of the project, Exhibit M, explains the shipping of
various commodities (wheat, corn, barley, and soybeans) from
various Columbia River ports as well as the containerized
shipping trade. Appellant’s claim that the Corps has over-
stated these benefits, requires us to look closely at the Corps’
analysis — are there economic factors that the Corps should
have considered under NEPA? The record indicates that the
answer to this question is “yes.” The Corps neglected impor-
tant economic realities that undermine the benefit-cost ratio it
presents.
While the majority opinion is correct that Exhibit M of the
FSEIS has assumed some loss of containerized trade to the
ports of Puget Sound, Maj. Op. at 10098, there is evidence
that this loss may be far greater than the FSEIS estimated. The
Corps estimates that the channel deepening project will gener-
ate benefits of $18.8 million annually. Two-thirds of this total,
$11.7 million, comes from the Corps’ estimate of gain from
10110 NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS
the containerized shipping trade. However, two of the three
shipping lines that carry containerized cargo to the Port of
Portland have decided that they will no longer come to Port-
land, reducing by 2/3 the amount of containerized cargo com-
ing through Portland.
Consideration of this displacement of shipping from one
American port to another is missing in the agency’s analysis
and would decrease the net benefits associated with the chan-
nel deepening. In response, Federal Appellees respond that
the FSEIS’ economic analysis, Exhibit M, assumed a loss of
market share to Puget Sound and therefore that this issue has
been accounted for.2
Contrary to the finding of the majority opinion, the Corps’
failure to measure the net benefit to the U.S. economy from
the project is wrong. The Corps asserts that it is not required
to separate the benefits to foreign vessels from those to the
domestic economy. However, the Guidelines, that are manda-
tory on the Corps, provide that “the procedure for measuring
the beneficial contributions to national economic develop-
ment (NED) associated with the deep draft navigation features
2
The Port at Grays Harbor has recently expanded the rail loop at its
grain terminal, allowing for more efficient unloading of grain. In addition,
AGP, a midwestern soybean exporter, built a new terminal at the port. The
economic analysis undertaken by the Corps did not consider this expan-
sion which may cut traffic to both lower-Columbia and Puget Sound ports.
Port of Grays Harbor Grain Terminal Loop Track at http://www.wsdot.wa.
gov/Projects/Rail/grays_harbor/ (last visited June 26, 2006); see also
http://www.portofgraysharbor.com/ (last visited June 26, 2006). The Port
of Grays Harbor has the advantage of cutting short the many miles’ travel
in Puget Sound to the Ports of Seattle and Tacoma and the even longer
journey to the ports of the Columbia (Portland, Vancouver, and Kelama).
I wonder what to make of the fact that the proposal to dredge Portland’s
port on the Willamette River, where its docks are located, has been post-
poned indefinitely because of the toxicity of the Willamette. For the fore-
seeable future, large ships cannot go into Portland, except lightly loaded,
whether or not the Columbia is dredged. I suggest this should also be part
of the economic analysis of container ship traffic.
NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS 10111
of water resources plans and projects.” Economic and Envi-
ronmental Principles and Guidelines for Water and Related
Land Resources Implementation Studies, March 10, 1983,
available at http://www.iwr.usace.army.mil/iwr/pdf/p&g.pdf
(last visited April 13, 2006) at 58 (emphasis added). Appel-
lees’ argument that such an analysis is not required is incon-
sistent with the language of these Guidelines and with the
purposes of NEPA.
Appellant also argues that the Corps should have
undertaken a multi-port analysis as part of its economic analy-
sis. Such an analysis would provide insight into whether the
ships that the channel-deepening project is intended to bring
into Columbia River ports are already docking in another
American port. If this is the case, bringing those ships to the
Columbia provides no net benefit to the national economy.
Such a conclusion would undermine the Corps’ stated benefit-
cost ratio of $1.66 benefit for each dollar spent. The NED
Guidelines discussed above indicate that the agency should,
as a first step, “determine the economic study area.” This
includes consideration of “diversion from or to adjacent com-
petitive harbors as well as distribution via competing modes
of transport. . . . there should be adequate discussion of the
trade area relative to adjacent ports and any commonality that
might exist.” Id. at 62.
The Army Corps argues that its choice of methodology was
a reasoned one, that choosing a methodology that did not
employ a multi-port analysis did not change the outcome of
the economic analysis, and therefore that not doing one can-
not be arbitrary and capricious. See Comments on FSEIS from
Colonel Richard Hobernicht, Commander, Army Corps; Rob-
ert E. Willis, Army Corps; and Judy Grigg, Port of Longview
at 23 (Feb. 28, 2003) (responding to criticism that the agency
did not measure whether there was a benefit passed through
to the U.S. economy and did not do a multi-port analysis), id.
at 34-35 (explaining its choice of methodology: “The Corps
selected an analytical methodology that did not include a
10112 NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS
multi-port analysis because (1) it was not required by the
Principles and Guidelines; (2) the Corps concluded that such
an analysis would likely result in higher project benefits than
the method selected and, as a result, the substantial expense
of a multi-port analysis was not fiscally justifiable; and (3)
conducting such an analysis would require assumptions likely
to render the outcome overly speculative.”). These assertions
are unsupported anywhere in the record. Although the Corps’
Review Panel recommended that a multi-port analysis would
have been better methodology, the Panel found that such an
analysis would “be unlikely to tip the cost-benefit scales.”
Original Review Comments and Benefit Review Team Opin-
ions on Responses at 1 (Jan. 10, 2003). That Review Panel
endorsed the Corps’ economic analysis without the multi-port
analysis. The Corps insists that the court must defer to such
a methodological choice. Salmon River Concerned Citizens v.
Robertson, 32 F.3d 1346, 1359 (9th Cir. 1994). This argument
for deference would allow the agency to end-run NEPA’s
obligations to do an accurate economic analysis by allowing
the agency to choose a methodology that is clearly not the
more appropriate and then to hide behind that choice of meth-
odology by calling for deference to agency decision-making.
This is not what NEPA envisioned. While we certainly must
respect the agency’s technical decisions, where those deci-
sions enable the agency to ignore reality, we need not acqui-
esce.
C. Failure to Consider Niemi Declaration
Further, the district court erred in not fully informing itself
as to what critical information the Corps did not consider. The
district court abused its discretion in striking Ernest Niemi’s
declaration as impermissible extra-record material. Only by
considering it could it know what the Corps omitted. The
majority, as did the district court, relies on Asarco, Inc. v. U.S.
Envt’l. Protection Agency, 616 F.2d 1153 (9th Cir. 1980), as
the basis for its rejection. Both used the “rule” of Asarco as
NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS 10113
far too blunt an instrument. The rule expressed in Asarco and
subsequent cases is much more nuanced.
The Asarco court considered and weighed the several rules
that govern the “judicial review of agency action.” 616 F.2d
at 1159. “[A]gency action must be examined by scrutinizing
the administrative record at the time the agency made its deci-
sion.” Id. However, the court recognized that:
[I]t is both unrealistic and unwise to straitjacket the
reviewing court with the administrative record. It
will often be impossible, especially when highly
technical matters are involved, for the court to deter-
mine whether the agency took into consideration all
relevant factors unless it looks outside the record to
determine what matters the agency should have con-
sidered but did not. The court cannot adequately dis-
charge its duty to engage in a substantial inquiry if
it is required to take the agency’s word that it consid-
ered all relevant matters.
Id. (internal quotation marks omitted).
To reconcile these tensions, the court held the following:
If the reviewing court finds it necessary to go outside
the administrative record, it should consider evi-
dence relevant to the substantive merits of the
agency action only for background information . . .
or for the limited purposes of ascertaining whether
the agency considered all the relevant factors or fully
explicated its course of conduct or grounds of deci-
sion . . . . Consideration of the evidence to determine
the correctness or wisdom of the agency’s decision
is not permitted, even if the court has also examined
the administrative record. If the court determines that
the agency’s course of inquiry was insufficient or
inadequate, it should remand the matter to the
10114 NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS
agency for further consideration and not compensate
for the agency’s dereliction by undertaking its own
inquiry into the merits.
Id. (emphasis added).
Reaffirming Asarco in Love v. Thomas, 858 F.2d 1347 (9th
Cir. 1988), we stated: “The court may find it necessary to
review additional material to explain the basis of the agency’s
action and the factors the agency considered, ” and “the court
may consider, particularly in highly technical areas, substan-
tive evidence going to the merits of the agency’s action where
such evidence is necessary as background to determine the
sufficiency of the agency’s consideration.” Love, 858 F.2d at
1356.
In this case where our task is to determine whether the
agency undertook adequate fact-finding and analysis that
should have been part of its NEPA compliance, the question
is whether Niemi’s declaration constitutes either (a) back-
ground, explanatory information or (b) substantive evidence
needed to “determine the sufficiency of the agency’s consid-
eration.” Id. If it falls into either or both of these categories,
it should have been considered. Given the concern that the
agency did not undertake analysis of relevant considerations,
the information provided in Niemi’s declaration fits quite
cleanly into the second category. It is substantive evidence
that demonstrates the inadequacy of the agency’s inquiry,
pointing out factors that the agency should have considered
and did not. Had these factors been considered, substantial
revisions to the agency’s benefit-cost ratio of $1.66 in benefit
to $1 cost well could be in order. As long as it is not
employed to substitute the court’s substantive determination
for that of the agency, the Niemi declaration is exceedingly
useful to a thorough review of the agency’s economic analy-
sis. In a highly technical area, it sheds light on the sufficiency
of the analysis undertaken by the agency.
NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS 10115
The district court appropriately cited to the Asarco rule but
decided that the declaration had been offered to “determine
whether or not the FSEIS provides a misleading description
of the project’s potential impacts,” citing Mr. Niemi for that
impermissible purpose. Northwest Environmental Advocates
v. Nat’l Marine Fisheries Serv., No. C04-0666RSM, at 11-12
(June 15, 2005). What matters in applying Asarco’s rule is not
how the declarant views his extra-record testimony, but
rather, for what purpose the court should make use of it. The
district court was obligated to undertake a detailed review of
the agency’s analysis. Where the concern is whether the
agency considered all relevant factors in its NEPA analysis,
the failure to look outside of the record to Niemi’s declaration
in my view was a failure by the district court to engage in the
detailed inquiry required by the Administrative Procedure Act
and therefore was an abuse of discretion.
We should admit Niemi’s declaration to the extent it con-
tains evidence of the omissions and inaccuracies in the agen-
cy’s analysis and find that the agency’s failure to consider
likely costs and its probable overstatement of the project’s
benefits constitutes “[i]naccurate economic information”
within the meaning of Natural Resources Defense Council.
421 F.3d at 811.
II. CUMULATIVE EFFECTS ON COASTAL EROSION OF DEEP-
WATER DISPOSAL OF SPOILS FROM THE MOUTH OF THE COLUMBIA
RIVER DREDGING
A. The Majority’s Flawed Analysis of Cumulative
Impacts
The majority concludes that the Corps has adequately con-
sidered the cumulative impacts on coastal erosion of deep-
water disposal of sediment dredged as part of both the Mouth
of the Columbia River (MCR) Project and the channel-
deepening project at issue here. It bases its determination on
(1) the Corps’ assurance that it has considered those cumula-
10116 NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS
tive impacts; (2) the Corps’ treatment of deep-water disposal
as allowable, although the least preferred option; (3) changes
made to disposal practices for the Mouth of the Columbia
River Project to maximize the amount of sediment retained in
the littoral cell; and (4) plans to monitor and manage sediment
disposal in the future to prevent coastal erosion. Maj. Op. at
10083-88. The documents cited by the majority reveal that the
Corps has proposed a deep-water disposal site large enough
to receive all of the dredged material from both projects
although the Corps alleges it would prefer to keep material in
the littoral cell; that the agency plans not to employ the deep-
water disposal site for a large volume of dredge disposal
unless necessary. As the majority tells us, the record explains
the volume the Corps expects to dispose in deep water by ref-
erence to the expected capacity of Site E and the North Jetty
Site, both disposal sites within the littoral system, and the dis-
persion of material from those two sites. That is, the volume
of dredged material that the Corps plans to place in deep-
water disposal depends upon how much Site E and the North
Jetty Site can accommodate in any given year. If Site E and
the North Jetty Site do not disperse sediment as quickly as
anticipated, a clear possibility that the Corps acknowledges,
the volume of material that would be disposed in the deep-
water site would increase accordingly. This demonstrates that
the volume of material to be disposed in the deep-water site
is uncertain, dependent upon several variables. Despite this
uncertainty and the probability that the deep-water disposal
scenario will not play out as it hopes, the Corps has failed to
undertake broader cumulative-effects analysis that would
result from dumping significant volumes of sand into a deep-
water site outside the littoral cell.
The majority attempts to distinguish this case from our
decision in Klamath-Siskiyou Wildlands Center. v. Bureau of
Land Management, 387 F.3d 989 (9th Cir. 2004) that the
Bureau of Land Management did not sufficiently consider the
cumulative impacts of several timber sales. The majority finds
central to the holding in that case the fact that a single project
NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS 10117
was subdivided and those sub-parts were analyzed separately
from one another. Maj. Op. at 10089-90. In focusing on this
factor, the majority overlooks an important commonality
between Klamath-Siskiyou and this case: the Forest Service’s
cumulative effects analysis looked only at the effects of the
particular project at issue, failing to account for the “com-
bined effects that can be expected as a result of undertaking
[multiple timber sales] and other foreseeable projects, in addi-
tion to [the project at issue.]” Klamath-Siskiyou, 387 F.3d at
996. Although the majority opinion finds that the Corps’ anal-
ysis did look at the cumulative impacts of deep-sea disposal
of all material dredged from the Mouth of the Columbia River
Project, what it concluded was that it would be as devastating
as indeed it would. What it doesn’t do is detail what the ero-
sion would cause. Apparently, it thinks nothing could mitigate
it because the record is devoid of any such analysis.
B. The Army Corps’ Analysis and Appellant’s
Concerns
The Dredged Material Management Plan/Supplemental
Environmental Impact Statement (DMMP/SEIS), which con-
stitutes the no-action alternative in the Final Supplemental
Environmental Impact Statement (“FSEIS” or “Final Environ-
mental Impact Statement”), called for establishing a small
deep-water disposal site for 7.7 mcy (million cubic yards)
over 20 years. This plan was “intended to reduce rehandling
of material that currently erodes back into the navigation
channel.” Columbia River Dredged Material Management
Plan and Supplemental Environmental Impact Statement at 32
(June 1998). Deep-water disposal would occur outside the
zone where currents would bring dredged material back into
the navigation channels from whence it would ultimately have
to be dredged once again.
The 1999 Final Environmental Impact Statement expanded
the DMMP/SEIS proposal for deep-water disposal of dredge
spoils with the continued dredging associated with the Mouth
10118 NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS
of the Columbia River Project in mind. “Continued mainte-
nance of the MCR project is a necessary component for the
viability of not only the existing 40-foot navigation channel
but also to any proposed channel improvements.” Vol. I:
Main Report and Exhibits, Integrated Feasibility Report for
Channel Improvements and Environmental Impact Statement
(FEIS) at 1-2 (Aug. 1999). The four existing ocean disposal
sites for the Mouth of the Columbia River Project were deter-
mined to have “inadequate capacity.” Id. “The timing of this
long-term site selection process [for new ocean disposal sites]
and the need to identify suitable ocean disposal sites for con-
struction and long-term maintenance of proposed channel
improvements further established the need to address the
combined ocean disposal requirements in this document [the
FSEIS].” Id. This language in the Final Environmental Impact
Statement indicates that ocean disposal will be necessary for
both the disposal of materials dredged for the Mouth of the
Columbia River Project and either the maintenance of the 40-
foot depth of the channel or the deepening of the channel to
43 feet “as existing estuarine disposal sites reach capacity.”
FEIS, Exh. H at H-3.
To deepen the channel to 43 feet, over the next thirty years,
“total Project dredging quantity” will be “about 190 mcy [mil-
lion cubic yards] for the Project.” Biological Opinion at 12
(May 20, 2002). Without the deepening, simply maintaining
the channel at 40 feet (the no-action alternative spelled out in
the DMMP/SEIS) over the same time period, approximately
160 mcy would have to be dredged. Id. In its proposal for
additional ocean disposal sites, the Corps estimated volumes
of ocean disposal for both the Mouth of the Columbia River
Project and the channel-deepening or channel-maintenance
dredging.
MCR O&M3
Annual 50 Years
4.5 mcy 225 mcy
3
FEIS, Exh. H at H-6.
NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS 10119
40-foot O&M Total 40-foot Channel
1-20 Years 21-50 Years
8 mcy 12 mcy 20 mcy
Construction 43-foot O&M Total 43-foot
Channel
1-20 Years 21-50 Years
7 mcy 9 mcy 21 mcy 37 mcy
Although deep-water disposal, according to the Corps, is
not the first or most preferable option, see FSEIS, Exh. H at
H-6 (“Dredged material placed at [disposal sites closer to
shore] is expected to move out of the site and feed the littoral
system.”), these ocean disposal sites were selected because
the mouth of the Columbia River is “so dynamic.” Id. The
Corps’ preferred outcome is dependent (1) upon dredge vol-
umes to maintain both the Mouth of the Columbia River Proj-
ect and the channel deepening not exceeding expectations in
any given year and (2) the dredged materials put into near-
shore sites eroding at the rate anticipated. If either of these
expectations plays out at a different rate,4 there will be no
room for new dredge spoils to be dumped in littoral sites, id.,
and deep-water disposal would be necessary. Another way of
making this point is that, in any given year, the agency’s pre-
ferred outcome, littoral disposal of dredge spoils, is dependent
upon at least two factors, the uncertainty as to both of which
4
“[T]he quantity of dredged material that will be placed in proposed Site
E and the North Jetty Site is uncertain due to the dynamics of the sites.
Some quantity of dredged material will likely have to be placed in the pro-
posed Deep Water Site each year; this will result in some material being
permanently lost from the littoral zone.” FEIS, Exh. H at H-68.
10120 NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS
is acknowledged by the Corps. A “single Deep Water Site
was located and sized to accommodate almost a 5-year dis-
posal capacity (225 mcy).” Id. at H-7.
The Army Corps simply has failed to consider cumulative
impacts of the permanent removal of sand from the littoral
system from both the Mouth of the Columbia River and
channel-deepening or maintenance that is inevitable if there is
deep-water disposal. The agency should have considered the
cumulative impacts of removing at least 262 mcy (the total
amount of material to be dredged from both channel deepen-
ing and ongoing MCR dredging) to the deep-water site, not
just 70 mcy of sediment from channel deepening.
The Corps insists that it has considered the cumulative
impacts on coastal erosion of disposing of dredged material
from both the Mouth of the Columbia River Project and the
channel-deepening project. In evaluating the Corps’ conten-
tion, the majority focuses on two dynamics that potentially
drive coastal erosion: (1) the impacts associated with disposal
of sediment dredged from the MCR Project and the channel-
deepening project and (2) the potential changes in sediment
transport and river hydraulics caused by these two projects.
The Corps and majority opinion focus on Exhibit J to the
FSEIS and the 2003 FSEIS, as well as Exhibit H to the FEIS.
Neither addresses NWEA’s concern that the specific impacts
on coastal erosion of disposing of dredged material from both
the Mouth of the Columbia River Project and channel deepen-
ing in the deep-water disposal site remain unquantified and
essentially unknown.
Exhibit J is the agencies’ supplemental analysis in response
to Oregon and Washington’s initial refusal to certify the chan-
nel deepening project over concerns about sediment transport
and coastal erosion. Exhibit J is simply not adequate. The
Corps’ analysis in Exhibit J proceeds as follows. First, the
Corps considered “historic trends and changes in sediment
transport in the Columbia River System” and attributed
NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS 10121
decreased sediment transport down the Columbia River to the
dams upstream. This analysis appears to be sound. It is what
follows that is questionable. Next, the Corps “examined
whether the channel deepening project itself would affect sed-
iment transport.” Fed. App. Br. at 25. The Corps determined,
first, that dredging the channel will not reduce the sand avail-
able for transport because the surface area to be dredged is a
relatively small percentage of the entire riverbed (3.5%) and,
second, that because the riverbed has sand 100-400 feet deep,
the amount being dredged also represents an insignificant per-
centage. Then the Corps determined that the channel-
deepening project’s impacts on the Columbia River’s hydrau-
lics are “too small to measurably alter sand transport or
erosion/accretion in the river or estuary.” FSEIS, Exh. J at 2-
3. The Corps’ conclusion: “Because the Project will neither
reduce the sand available for transport nor alter the river’s
capacity to move sand, the Project will in turn have no impact
on the erosion or accretion of coastal beaches.” Fed. App. Br.
at 27.
Lastly, the Corps weighed whether consideration of other
actions’ impacts would alter its analysis of the impacts of the
channel deepening Project. This is the crucial part of the anal-
ysis. In its consideration of the cumulative impacts associated
with the Mouth of the Columbia River Project’s ongoing
dredging, the FSEIS relies on Exhibit J’s finding that “the
reduction in the Columbia River’s net sand discharge to the
MCR since the early 1900s is related to lower Columbia River
flood discharges and not the navigation channel or the MCR
jetties.” FSEIS at 6-72. The FSEIS finds that reduced accre-
tion of sand in the estuary is the result of the decreased sand
flow from the River, the result of upstream dams and con-
cludes that “[e]xcluding the historic effect of the MCR jetties,
navigation channel development and maintenance, including
maintenance of the MCR project, has not altered the estuary’s
overall accretion/erosion or bedload transport patterns.” Id. at
6-73. So far, so good. The agency’s analysis might be fine,
10122 NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS
except that its consideration of coastal erosion and sediment
transport issues stops here.
Appellees point out that Exhibit J explains how the Colum-
bia River and the currents at its mouth historically moved
sand downstream and distributed that sand along Washington
and Oregon’s coastlines. It also describes the give-and-take of
sand between the estuary and the mouth of the Columbia
River. It analyzes how the construction of dams upstream, jet-
ties downstream, and dredging the Columbia River changed
these patterns. This may all be true and important to the anal-
ysis as a whole, but it does not answer the critical question.
The difference between the analysis the Corps is obligated to
provide and that provided in Exhibit J is as follows:
As Exhibit J explains, historically, for the most part, dis-
posal of dredged sand largely occurred within the littoral sys-
tem. Although transport patterns were being altered, that is,
the way in which the sand was being moved around was
changing, and although less sand was being sent downstream
because of dams, once downstream the amount of sand in the
system remained fixed. By contrast, the record indicates that
near-shore and beach disposal are not a permanent solution
and that ocean disposal (outside of the littoral system) will
increasingly be employed. Increased ocean disposal means
that, unlike in the past, the amount of sand being moved
around near the mouth of the river will not remain fixed. Over
50 years, 262 mcy may be removed from the littoral system.
This permanent removal of material from the littoral system
is not the same as moving sand from one part of the littoral
system to another. Exhibit J does not address the effect of the
removal of sand from the littoral system. The agency nowhere
analyzes what happens when 262 mcy is removed from the
littoral system entirely, despite the fact that this is an antici-
pated possibility, verging on a probability.
The majority opinion accuses NWEA of relying on the
2003 FSEIS to establish its argument, when it is the 1999
NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS 10123
FEIS that contains the relevant analysis of cumulative
impacts. According to the majority, the FEIS, particularly
Exhibit H, demonstrates that the Corps was “aware of” the
serious impacts on coastal erosion of disposing of large quan-
tities or all material dredged from both the Mouth of the
Columbia River Project and the channel-deepening project in
the planned ocean disposal site. Maj. Op. at 10082-83. To
establish this, the majority references an alarming statement
from the 1999 FEIS:
If the deepwater site is used as intended5 (4.5 mcy of
MCR sand placed per year for 50 years), the implica-
tions on the littoral sediment budget at MCR and
adjacent coastal areas could be profound. . . . The
result of such a mass removal of littoral sand would
likely be adverse: Local and possible regional
coastal erosion may result. The stability of MCR jet-
ties may be reduced. . . .
(emphasis added).
The majority is correct — this statement does show that the
Corps “was fully aware of the potential erosion effects
entailed by deepwater disposal.” Maj. Op. at 10083. The
agency’s response, or lack thereof, to this possibility is very
troubling. The majority insists that Exhibit H contains a
detailed analysis of these potentially “profound” and “ad-
verse” effects. Not so. Exhibit H provides a recital of the pro-
cess that the Corps went through with other groups to narrow
5
The majority calls use of this term a “misnomer.” Maj. Op. at 10084.
The majority’s breezy dismissal of the Corps’ use of “intended” epito-
mizes the problems with the majority’s analysis: on the one hand the
Corps tells us that extensive use of the deepwater disposal site is a “worst-
case” scenario; on the other, it tells us that the “intended” use of the site
will lead to “adverse” effects. Which is it? The Corps’ inconsistency and
the ambiguity of its plans are at the heart of what troubles me so deeply
about this case, and the majority’s ready dismissal of those inconsistencies
is inconsistent with NEPA.
10124 NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS
the list of potential deep-water disposal sites and to select one
that the Corps would use. The majority finds that the lists of
possible conflicts (harms) associated with each potential
deep-water site (which the Army Corps calls “conflict matri-
ces”) provide thorough analyses of the advantages and disad-
vantages of each potential site. In fact, they are no more than
tables and checklists. Undertaken for each of the ten potential
deep-water sites, each matrix, such as it is, notes whether
there is a conflict, potential conflict, no conflict, or a benefi-
cial use for 27 specific characteristics of a site based on
eleven specific factors for ocean disposal site selection speci-
fied in 40 C.F.R. § 228.6 and five general criteria for the
selection of ocean disposal sites from 40 C.F.R. § 228.5.
FEIS, Exh. H at H-45-55. Among the specific site characteris-
tics being evaluated are unusual topography, physical sedi-
ment compatibility, commercial fisheries, critical habitat of
threatened or endangered species, and cumulative effects. For
example, the matrix for the proposed deep-water disposal site
notes a potential conflict with “potential for cumulative
effects,” with a check in the “potential conflict” box; a note
in the “comments” column indicates that use of this site could
have a “[p]otential affect from crab and other fishing as well
as disposal;” and a note as to the relevant regulatory factors
(4 and 7 of the eleven factors6 and c and d of the five general
criteria7). That’s it. Exhibit H does not dig deeper to quantify
6
Factor 4 is “types and quantities of waste proposed to be disposed and
proposed methods of release, including methods of packaging the waste,
if any.” Factor 7 is “existence and effects of present or previous discharges
and dumping in the area (including cumulative effects).” FEIS, Exh. H at
H-55.
7
Criteria c states that “[i]f at any time during or after disposal site evalu-
ation studies, it is determined that existing disposal sites presently
approved on an interim basis for ocean dumping do not meet criteria for
site selection set forth in Sections 228.5-228.6, the use of such sites will
be terminated as soon as suitable alternative disposal sites can be designat-
ed.” Criteria d states that “[t]he sizes of ocean disposal sites will be limited
in order to localize, for identification and control, any immediate adverse
impacts and to permit the implementation of effective monitoring and sur-
veillance programs to prevent adverse, long-range impacts. The size, con-
figuration, and location of any disposal site will be determined as part of
the disposal site evaluation or designation study.” FEIS, Exh. H at H-55.
NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS 10125
or elaborate these effects as to any of the 27 characteristics,
including “potential for cumulative effects.” This is the extent
of Exhibit H’s analysis of the cumulative impacts on coastal
erosion of disposing of large quantities or all dredged material
from the Mouth of the Columbia River Project and the
channel-deepening project in this deep-water site: “[p]otential
affect from crab and other fishing as well as disposal.”
We have rejected this kind of underwhelming specificity
before. In Klamath-Siskiyou, we held that tables that did not
“provide object quantification of the impacts” where the
tables noted only whether a certain factor would be “un-
changed,” “improved,” or “degraded,” were inadequate under
NEPA. 387 F.3d at 994. Great Basin Mine Watch v. Hawkins,
No. 04-16125, __ F.3d ___ (9th Cir. Aug. 1, 2006), draws on
Klamath-Siskiyou. In that case, the Bureau of Land Manage-
ment’s (BLM or Bureau) environmental impact statement,
noted, in a statement reminiscent of the Corps’ statements,
that “[t]here is a potential for cumulative effects from hazard-
ous air pollutants including compounds of arsenic, hydrogen
cyanide, manganese, propylene, and acid aerosols. . . .” The
extent of the Bureau’s analysis was a “generic map” and
“three tables that list existing and reasonably foreseeable
mines.” We held that the Bureau’s “somewhat alarming state-
ment was nowhere . . . supported by data broken down by
mine, or even by cumulative data.” Great Basin, No. 04-
16145, slip op. at 34-35. The same could be said here of the
Corps, which has told us that the “intended” use of the deep-
water disposal site could result in “profound” or “adverse”
coastal erosion impacts and then provides us only with check-
lists of factors and no data. Exhibit H does not adequately
address the cumulative impacts of coastal erosion, despite the
Corps’ and the majority’s efforts to argue that it does.
Bottom line: the majority finds that the “hard look” stan-
dard has been satisfied by the Corps’ assurance that, although
the FEIS and FSEIS both propose authorizing the deep-water
site for disposal of all MCR dredge, the Corps “presents this
10126 NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS
option only for ‘contingency planning purposes’ and as repre-
senting a ‘worst-case’ scenario.” Maj. Op. at 10085 (quoting
FSEIS, App. H at H-6). I strongly disagree with the majority’s
conclusion that the Corps discharged its obligations under
NEPA by expressing its preference to dispose of dredged
material at Site E and at the North Jetty Site, rather than at the
deep-water site, even though substantial evidence suggests
that those sites lack the required capacity. In so doing, the
majority has held that, because the deep-water disposal of all
materials dredged from the MCR project is a “worst-case”
scenario and because the agency has revised its disposal plans
and developed a management plan to minimize deep-water
disposal, the agency need not detail the impacts of that sce-
nario. By admitting it is a “worst-case” outcome, the Corps
admits it is a bad solution, but nowhere tells us just how bad
or if anything in the way of mitigation is possible.
C. Flaws in the Corps’ Compliance and the Majority
Analysis
The majority’s reasoning is inconsistent with the require-
ments placed on agencies by NEPA and by our case law inter-
preting NEPA. The “hard look” standard requires, not just
that the Corps express its preference not to reach a situation
in which all MCR dredge is disposed of in deep water, and
develop a management and monitoring plan intended to
accomplish this preference, but that the Corps analyze the
impacts of such a potential outcome, even if the Corps hopes
to avoid it.
Lands Council instructs that cumulative-effects analysis
under NEPA “requires the Final Environmental Impact State-
ment to analyze the impact of a proposed project in light of
that project’s interaction with the effects of past, current, and
reasonably foreseeable future projects.” Lands Council v.
Powell, 395 F.3d 1019, 1027 (9th Cir. 2005) (emphasis
added) (citing 40 C.F.R. § 1508.7). It is not “appropriate to
defer consideration of cumulative impacts to a future date.
NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS 10127
NEPA requires consideration of the potential impact of an
action before the action takes place.” Neighbors of Cuddy
Mountain v. United States Forest Serv., 137 F.3d 1372, 1380
(9th Cir. 1998) (emphasis in original) (internal quotation
marks and citation omitted). That the Army Corps has pro-
vided for deep-water disposal of all dredged material from the
Mouth of the Columbia River Project (even as a “worst-case”
scenario) and has sought authorization of a site with sufficient
capacity for this potential outcome demonstrates that such an
outcome is “reasonably foreseeable.” The impacts of disposal
of all dredged materials from the MCR Project and channel-
deepening into the deep-water site should, therefore, have
been analyzed under NEPA. The majority’s assertion that
because the Corps was aware of potentially adverse impacts
and tried to avoid them, it need not study or quantify those
impacts, is simply inconsistent with this standard.
The EIS must “include a useful analysis of the cumulative
impacts of past, present and future projects. This means a dis-
cussion and an analysis in sufficient depth and detail to assist
the decisionmaker in deciding whether, or how, to alter the
program to lessen cumulative impacts.” Muckleshoot Indian
Tribe v. United States Forest Serv., 177 F.3d 800, 809-10 (9th
Cir. 1999) (internal quotation marks and citations omitted). In
Muckleshoot, this court found that the agency’s cumulative
effects analysis “f[e]ll short” of the required “useful analysis”
where the agency “merely indicat[ed] the amount of land to
be exchanged, for example, and whether the land would be
subject to commercial harvest, followed by an optimistic con-
clusion.” Churchill County v. Norton, 276 F.3d 1060, 1080
(9th Cir. 2001) (citing Muckleshoot, 177 F.3d at 811). The
Army Corps’ analysis of the cumulative effects of deep-water
disposal of MCR Project and channel-deepening dredged
material is analogous to the analysis rejected by this court in
Muckleshoot. The Corps’ statement of a preference against
deep-water disposal is analogous to providing this court with
an “optimistic conclusion.” This does not constitute a “useful
analysis.”
10128 NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS
Although the majority asserts correctly that an agency need
not “engage in the most exhaustive environmental analysis
theoretically possible”; it just has to take a “hard look.” Maj.
Op. at 10090. Nonetheless, what is required to satisfy that
standard must be applied in a manner consistent with the pur-
pose of NEPA. Klamath-Siskiyou, 387 F.3d at 993 (citing
Churchill County, 276 F.3d at 1072). First off, it is important
to identify at what the agency must take a hard look. The
Army Corps asks us to find that the agency’s dismissal of a
highly likely consequence of its proposed project, without any
assessment of its consequences, satisfies the “hard look” stan-
dard. This is inconsistent with the mandate of NEPA, a statute
that requires agencies “to put on the table, for the deciding
agency’s and for the public’s view, a sufficiently detailed
statement of environmental impacts and alternatives so as to
permit informed decision making.” Id. at 1027. Here, the
Corps tells us that there won’t be a problem. Although the
agency admits the adverse consequences will be profound, it
hasn’t studied what will happen if the “worst-case” scenario
comes to pass, the Corps asks us to trust it. That is not the
standard. The Army Corps has failed to take the required
“hard look” at the cumulative impacts on coastal erosion of
dumping large quantities of the dredged materials from the
Mouth of the Columbia River and those from channel deepen-
ing into the proposed deep-water disposal site.
NEPA analysis must include an answer to the question
posed by Appellant: What would be the impact on coastal ero-
sion if all or substantial quantities of the material dredged
from the Mouth of the Columbia River Project and the
channel-deepening project were disposed of in the deep-water
site? NEPA requires the Corps to answer this question
because it is a “reasonably foreseeable” outcome. Talking
around that possible outcome, explaining why that is not the
preferred outcome, planning to minimize this outcome, all the
while taking steps that would bring this possibility to fruition,
make clear that the Corps has not met its obligations under
NEPA. We should remand for the agency to undertake further
NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS 10129
study. Instead, the majority allows channel deepening and
authorization of the deep-water disposal site to proceed, even
without an understanding of the cumulative effects on coastal
erosion of a “reasonably foreseeable” future project.
III. OTHER SIGNIFICANT IMPACTS OF CHANNEL DEEPENING:
TOXICITY AND SALINITY
NEPA requires the Army Corps to evaluate the direct and
indirect impacts of channel deepening and disposal of the
dredged material, considering all “relevant factors.” 40 C.F.R.
§§ 1502.16, 1508.8; Rybacheck v. U.S. Envtl. Prot. Agency,
904 F.2d 1276, 1284 (9th Cir. 1990).
A. Toxicity
Northwest Environmental Advocates challenges the suffi-
ciency of the Army Corps’ analysis of the effects of channel
deepening on the river’s toxicity.8 NWEA asserts that, in its
analysis of the impact of channel deepening on levels of tox-
ins in the Columbia River, the Corps failed to draw adequate
samples from the sides of the riverbed, which as the channel
8
The toxicity of the Columbia River is much in the news. The federal
government recently reached a limited agreement with a Canadian mining
company, Teck Cominco, that is believed to be responsible for a century’s
worth of pollution of the stretch of the Columbia between the Canadian
border and the Grand Coulee Dam. Although the agreement requires Teck
Cominco to fund a short-term study of human health and the environment
of Lake Roosevelt, tribal stakeholders and the State of Washington are
expressing reservations and concern that the agreement will allow Teck
Cominco to walk away from what they believe is the company’s obliga-
tion to pay for its pollution of the Columbia. Pollution Study Ordered:
Teck Cominco Pact Targets Fouling of Columbia, Karen Dorn Steele, The
Spokesman Review (June 3, 2006). In fact, this court just held that a law-
suit seeking to hold Teck Cominco liable under the Comprehensive Envi-
ronmental Response, Compensation, and Liability Act (CERCLA) could
proceed because, although Teck Cominco is a Canadian company, it
released hazardous substances into the United States. Pakootas v. Teck
Cominco Metals, Ltd., No. 05-35153 (9th Cir. July 3, 2006).
10130 NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS
is deepened may erode into the deepening channel, mobilizing
whatever toxins they contain. The majority holds that there is
no need to test sediments from the channel sides for two rea-
sons: (1) because they will not be affected by dredging, and
(2) because any material vulnerable to side-slope adjustment
is previously-dredged material which must be toxin free. The
record refutes this.
In its Biological Opinion, National Oceanic and Atmo-
spheric Administration (NOAA) Fisheries identified the
Columbia River’s toxicity to be “among the highest levels
measured in estuarine sites in Washington and Oregon.” Bio-
logical Opinion at 36. These high levels of toxicity, just short
of lethal, pose a serious threat to juvenile salmonids depen-
dent upon the estuary, not to mention the potential adverse
effects on humans and other species. The Army Corps
explained the problem of “side-slope adjustment” noting that
After the initial deepening the riverbed would begin
to adjust to the new channel depth. Riverbeds adja-
cent to the deeper dredge cuts will degrade as
bedload is deflected down the cut slope and into the
navigation channel. This process will continue for 5-
10 years before the side-slopes reach equilibrium
with the channel hydraulics. Sand eroded from these
sides will become part of the active bedload trans-
port on the riverbed.
FSEIS, Exh. J at 9.
By this process, channel deepening may re-suspend con-
taminants that had been isolated in the side slopes of the river-
bed. Despite this concern, the Army Corps failed to test the
toxicity of a sufficient number of sediment samples taken
from outside the navigation channel, analyzing primarily sam-
ples collected within the channel. The Corps, therefore, has
almost no data from which to analyze the impacts of side-
slope adjustment on the overall toxicity of the river during
NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS 10131
and after channel deepening; without that data, the Corps can-
not effectively analyze the impact of channel deepening not
only on juvenile salmonids dependent upon the estuary, but
other users of the river.
The Corps claims a database of 4,000 sediment samples
from the Columbia River system. However, there are several
problems with this database from the standpoint of an ade-
quate NEPA analysis. First, only 586 of the 4000 samples
have been tested for toxicity. Second, the sample set is very
old. Many samples pre-date the 40-foot channel depth. Only
40 samples, taken from just 4 sites, were taken later than
2000, and none of these are from side-slope areas.9
Salmon runs are at perilously low levels. The last thing that
salmon need is another ladder to climb, so to speak. The
Corps’ failure to thoroughly analyze toxicity in the side-slope
sediment renders its NEPA analysis incomplete — the agency
has not considered all “relevant factors” associated with the
direct and indirect impacts of channel deepening on river tox-
icity.
B. Salinity
Appellant also points to the Army Corps’ inadequate analy-
sis of the impacts of channel deepening on the salinity of the
Columbia River estuary. Salinity has a tremendous impact on
the estuary’s health. Like levels of toxins in the river, the
salinity of the estuary is a matter of vital importance to the
juvenile salmon which must rest and readjust in the estuary
before transitioning from fresh water to salt water in the
9
Following its assertion that side-slope sediment need not be tested, the
majority holds, in the alternative, that the Corp has in fact tested side-slope
sediments. It bases this holding on a pathetic sample size — two samples
from outside the navigation channel. To hold that two samples from out-
side the navigation channel, when dredging is planned for more than one
hundred miles of the Columbia, satisfies NEPA standards borders on the
absurd.
10132 NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS
ocean. The administrative record documents that deepening
the Columbia River channel over the past century and other
changes to the structure of the river have “likely caused the
largest changes in salinity intrusion and density stratification”
in the estuary. Salmon at River’s End: The Role of the Estu-
ary in the Decline and Recovery of Columbia River Salmon,
NMFS Technical Memorandum at 99 (2001).
At issue is the accuracy of the Army Corps’ models for
measuring impacts of channel deepening on salinity. Contrary
to the majority’s assertion, NWEA does present a “cogent
challenge” to the old model, the WES model, a challenge sup-
ported by the record. NOAA Fisheries warned the Corps not
to use its older salinity model because of the imprecision of
its measurements of salinity in the shallow areas that are
favored by salmonids:
The WES model used to evaluate change in salinity
intrusion was not validated nor designed to assess
impacts in the shallow, side channel habitat used by
salmon. In other words, an analysis is needed of
whether the model would predict current conditions
to determine credibility of its ability to predict future
conditions. WES was not asked to conduct such an
assessment, and commented that — if such valida-
tion were needed — a new model would have to be
developed.
Notes from NOAA Fisheries meeting to “Clarify Science
Issues for Columbia River Channel Deepening Project,” (Oct.
6, 2000).
Heeding this admonition, the Corps developed a new model
for measuring salinity, the Oregon Health and Sciences
University/Oregon Graduate Institute (OHSH/OGI) model.
NWEA argues that the Corps rushed development of this new
salinity model and used it only to evaluate the accuracy of the
older model. Furthermore, the Corps appears to have
NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS 10133
employed the new salinity model too hastily, before its accu-
racy had been verified. The developers of the model
expressed concern about reliance on its results given the
uncertainty surrounding them.10 However, the Corps relied on
the findings based on this highly uncertain new model to con-
clude that salinity would increase in the shallows by less than
.5 ppt (parts per thousand) and that this would have no
impact.
The district court apparently relied, not on evidence within
the record, but upon its own Google search about the Corps’
salinity model. The Corps relied upon a model admittedly
fraught with uncertainty to reach its conclusion that the chan-
nel deepening would produce no adverse impact on the sal-
monids from salinity in the estuaries. I suggest that studies
employing an older, inadequate model followed by complete
reliance on an untested model does not constitute the “hard
look” required by NEPA.
IV. CONCLUSION
Fundamentally, the majority takes an ostrich’s head-in-the-
sand approach to reviewing the agency’s analysis, settling for
the Corps’ explanation without undertaking the required
review of its decision making. It is true, we are not permitted
to substitute our judgment for the reasoned decision of the
agency. Neither, however, are we permitted to rubber-stamp
the agency’s decision of what factors must be considered and
what factors need not be considered without taking a detailed
look at whether the agency’s reasoning is sound. Here, it is
not.
10
Uncertainty as to the accuracy and adequacy of the model is com-
pounded by the impacts of climate change on the Pacific Ocean and
Columbia River — how will now-certain rising of sea level impact salinity
of the estuarine lower Columbia River? We don’t know because the Corps
has not considered this significant factor.
10134 NORTHWEST ENVIRONMENTAL ADVOCATES v. NMFS
The “hard look” here went awry. The Corps, as it must,
acknowledged profound consequences from erosion if large
quantities of sand are removed from the littoral system. Any-
one familiar with the Washington coastline has seen the dev-
astation from past erosion (consequences the Corps admits
were caused by its own past bad practices). The Corps
acknowledges that it has designated a deep-water disposal site
to hold huge quantities of dredge spoils, but has no plan of
mitigation if that site is used for its intended purpose. Nor
does the Corps analyze when and how much erosion is likely
to occur—only that it will be profound and devastating. Its
analysis of increased toxicity that may result from dredging is
completely inadequate, as is its analysis of possible changes
in salinity. Last, but certainly not least, the economic analysis
is highly suspect.
My bottom line is that the Corps has substantially more
work to do. Hence my dissent.