El Puente v. U.S. Army Corps of Engineers ( 2023 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
EL PUENTE, et al.,
Plaintiffs,
v. Civil Action No. 1:22-cv-02430 (CJN)
U.S. ARMY CORPS OF ENGINEERS, et
al.,
Defendants.
MEMORANDUM OPINION
The U.S. Army Corps of Engineers approved the San Juan Harbor Navigation
Improvements Project in response to the House of Representative’s request to consider and
develop navigation improvements that might increase the Harbor’s safety, security, and efficiency.
The Project involves deepening and widening current shipping channels by dredging and then
disposing of the dredged material in a designated ocean disposal site. Plaintiffs, a cohort of
environmental groups, contend that the government violated various federal environmental laws
in approving the Project. For the reasons discussed below, the Court rejects those challenges,
denies Plaintiffs’ Motion for Summary Judgment, ECF No. 20, and grants Defendants’ Cross-
Motion for Summary Judgment, ECF No. 22.
I. BACKGROUND
A. Statutory Background
Plaintiffs El Puente, CORALations, and the Center for Biological Diversity (hereinafter
“El Puente”) challenge the government’s approval of the Project under the Clean Water Act, the
1
National Environmental Policy Act, and the Endangered Species Act. The Court therefore begins
a with brief overview of these statutes and the government’s obligations relating to the Project.
The Clean Water Act (CWA) is “the principal federal law regulating water pollution in the
United States.” Sackett v. Env’t Prot. Agency, 143 S. Ct. 1322, 1329 (2023) (citing 33 U.S.C.
§ 1251 et seq.). It “prohibits ‘the discharge of any pollutant’ into ‘navigable waters,’” id. at 1330(quoting 33 U.S.C. §§ 1311(a), 1362(12)(A)), and is jointly enforced by the EPA and the Army
Corps of Engineers, id. Section 404 of the CWA sets forth a framework for the regulation of the
discharge of dredged or fill material into “navigable waters”—or “waters of the United States,
including the territorial seas.” See 33 U.S.C. §§ 1344, 1362(7). That section allows the Corps to
issue permits for the discharge of dredged or fill material into the waters of the United States when
certain conditions are met. See 33 U.S.C. § 1344; 40 C.F.R. §§ 230 et seq.
A related statute—the Marine Protection, Research and Sanctuaries Act (MPRSA)—
governs the discharge of dredged material into ocean waters. See 33 U.S.C. §§ 1402(b), 1411(b).
The MPRSA generally prohibits the dumping of dredged material into territorial seas or ocean
waters within twelve nautical miles from territorial seas without a permit, see id. §§ 1411, 1413(a),
although the Corps may issue regulations about dredged materials in lieu of the permit procedure,
id. § 1413(e). The MPRSA also empowers the EPA to designate certain ocean dumping sites or
Ocean Dredged Material Disposal Sites (hereinafter “Ocean Disposal Sites”). See id. § 1412(a).
By regulation, the dumping of dredged material into territorial seas is governed by the MPRSA,
while the dumping of fill material into territorial seas is governed by the CWA. See 40 C.F.R.
§ 230.2(b).
The National Environmental Policy Act (NEPA) is an “essentially procedural” statute that
is designed to ensure that agencies make “fully-informed and well-considered decision[s]”
2
regarding environmental impacts of federal projects. See Vt. Yankee Nuclear Power Corp. v. Nat.
Res. Def. Council, Inc., 435 U.S. 519, 558 (1978); accord Am. Rivers v. Fed. Energy Regul.
Comm’n, 895 F.3d 32, 49 (D.C. Cir. 2018) (“NEPA’s primary function is ‘information-forcing,’
compelling federal agencies to take a hard and honest look at the environmental consequences of
their decisions.” (citations omitted)). “To that end, the statute requires that each agency assess the
environmental consequences of major federal actions by following certain procedures during the
decision-making process.” Ctr. for Biological Diversity v. U.S. Dep’t of Interior, 563 F.3d 466,
474 (D.C. Cir. 2009) (quotations omitted) (alterations adopted).
NEPA requires agencies to prepare an environmental impact statement for all “major
Federal actions significantly affecting the quality of the human environment.” 42 U.S.C.
§ 4332(C). But if an agency is “unsure whether its proposed action will have significant
environmental impacts, it may first prepare an [environmental assessment].” Env’t Def. Ctr. v.
Bureau of Ocean Energy Mgmt., 36 F.4th 850, 872 (9th Cir. 2022) (quotation omitted). An
environmental assessment is a “‘concise, public document’ providing ‘sufficient evidence and
analysis’ for the agency to determine ‘whether to prepare an environmental impact statement.’”
Id. (quoting 40 C.F.R. § 1508.9(a)(1)). It is not meant to replace an environmental impact
statement, but rather is “intended to help an agency decide if an [environmental impact statement]
is warranted.” Id. If, after conducting an environmental assessment, the agency determines that
an environmental impact statement is not required, the agency must issue a “finding of no
significant impact” and briefly explain its reasoning. See 40 C.F.R. § 1508.9.
The Endangered Species Act (ESA) protects endangered and threatened species and their
critical habitats. Under this statute, an agency is “required to ensure that any action undertaken by
the agency ‘is not likely to jeopardize the continued existence of any endangered species or
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threatened species or result in the destruction or adverse modification’ of critical animal habitats.”
Ctr. for Biological Diversity, 563 F.3d at 474 (quoting 16 U.S.C. § 1536(a)(2)). For “major
construction activities,” an agency is required to prepare a biological assessment to “evaluate the
potential effects of the action on listed and proposed species and designated and proposed critical
habitat” and to determine whether any of those species or habitats are “likely to be adversely
affected by the action.” 50 C.F.R. § 402.12(a)‒(b). Agencies are required to fulfill these
requirements “us[ing] the best scientific and commercial data available.” 16 U.S.C. § 1536(a)(2).
Under the ESA, “[i]f an agency concludes that its action ‘may affect’ a listed species or
critical habitat, then the agency must pursue either formal or informal consultation” with the
National Marine Fisheries Service or the Fish and Wildlife Service (depending on the species or
habitat). See Ctr. for Biological Diversity, 563 F.3d at 474‒75 (citing 50 C.F.R. §§ 402.13,
402.14). Informal consultation entails correspondence between the agency proposing government
action and the relevant wildlife agency to determine whether the action “may affect listed species
or critical habitat” and therefore requires formal consultation. See 50 C.F.R. §§ 402.13(a),
402.14(a). “During informal consultation, the [wildlife agency] may suggest modifications to the
action that the [f]ederal agency and any applicant could implement to avoid the likelihood of
adverse effects to listed species or critical habitat.” Id. § 402.13(b). If the wildlife agency
determines that the action is not likely to adversely affect the listed species or critical habitat, it
generally provides a written concurrence and ends consultation. See id. §§ 402.13(c); see also
402.14(b)(1) (defining an exception to the formal consultation requirement when a federal action
is “not likely to adversely affect any listed species or critical habitat”). Formal consultation, in
turn, requires a more thorough evaluation and “culminates in the wildlife agency issuing a
‘biological opinion’” in which “the wildlife agency comprehensively examines the proposed
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action’s anticipated effect on listed species and critical habitat.” Shafer & Freeman Lakes Env’t
Conservation Corp. v. Fed. Energy Regul. Comm’n, 992 F.3d 1071, 1079 (D.C. Cir. 2021) (citing
16 U.S.C. § 1536(b); 50 C.F.R. § 402.14).
B. Factual Background
The San Juan Harbor is located on Puerto Rico’s northern coast and is home to the
territory’s largest port. See Answer ¶ 1, ECF No. 14. The Harbor “requires periodic maintenance
dredging” every five to seven years “to maintain authorized depths.” USACE_000067. Since
1975, the dredged material has been deposited in an Ocean Disposal Site approximately 2.2
nautical miles north-northwest of the entrance to the Harbor. Id. The dredged material is
transported from the Harbor to the Ocean Disposal Site using “scows” that all “leak to some
extent.” USACE_000178; see also USACE_000091.
In 2006, the U.S. House of Representatives tasked the Secretary of the Army with
determining the feasibility of improving navigation in the Harbor to “increase security, safety, and
efficiency.” See USACE_000032, 54. Thereafter, the Corps conducted a study and identified
three primary navigation problems in the Harbor: “difficult wind and wave conditions, limited
channel and turning basin widths, and insufficient [f]ederal channel depths.” USACE_000033.
The Corps determined that these problems created several concerns for vessels using the Harbor.
Restrictive channel depths required petroleum tankers to “light load,” resulting in “additional
transits to provide the required quantities of gasoline, jet fuel, diesel fuel, and other petroleum
products for the island” and forcing vessel operators to forego potential “cost savings from the
economies of scale associated with existing and larger ships drafting deeper.” Id. Current channel
widths limited access of larger petroleum tankers, including those used for liquid natural gas
(LNG). Id. And cruise ships struggled to maneuver or turn, “increasing transit time within the
harbor.” Id.5
Before recommending a plan for the Project, the Corps engaged in a variety of
environmental analyses and procedural processes. The Court details only the steps relevant to El
Puente’s claims here.
1. NEPA and CWA Analysis
In the fall of 2015, the Corps published a letter of intent to prepare a feasibility study and
an environmental impact statement regarding potential navigation improvements in the Harbor.
See USACE_007577. The Corps subsequently held a scoping meeting, solicited views and
comments from the public and experts, and coordinated with other agencies. See USACE_000201.
The Corps issued a draft environmental assessment and requested public comments in August
2017. USACE_000191. During the public comment period, Hurricanes Irma and Maria hit Puerto
Rico. See USACE_002530; Answer ¶ 71.
In August 2018, the Corps published its finalized Environmental Assessment.
USACE_000028‒217. The Assessment addressed the comments, explained the Corps’s analyses
of the various environmental issues, and recommended proceeding with the Project. See
USACE_000206.
The Project involves deepening, widening, and expanding several channels in the Harbor.
USACE_000034. It includes a “base plan” for the disposal of 2.2 million cubic yards of dredged
material into an existing Ocean Disposal Site about two miles offshore, as well as options to place
the dredged material elsewhere (such as Condado Lagoon) if there would be a “beneficial use” for
such materials. See USACE_000034, 136. Pursuant to the MPRSA, the Corps applied the Site
Management and Monitoring Plan developed in 2011 for disposal into the Ocean Disposal Site.
USACE_013099‒148.
According to the Corps, the Project is not aimed at increasing the Harbor’s capacity, but at
enabling the Harbor to handle current traffic more efficiently. USACE_000153. The Corps
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concluded that the “entire project is economically justified,” as the estimated cost of the Project is
approximately $54 million, while projected net benefits are $60 million if Puerto Rico converts
two San-Juan area power plants from diesel fuel to liquified natural gas (LNG) and $2 million if
Puerto Rico continues to rely on diesel fuel. USACE_000034‒35. The Corps also explained the
“uncertainty surrounding the anticipated conversion” of the two San Juan power plants to LNG.
USAACE_000038, 151‒52.
The Corps engaged in various environmental analyses, including regarding environmental
justice, air pollution, and the impact on corals. With respect to environmental justice, the Corps
analyzed the population within a one-mile radius of the Project site and found that population
density of minorities in that radius was lower than the rest of San Juan and that the percent of
households living under the poverty line in that area was about the same as households in the
surrounding areas. USACE_022648. The Corps concluded that “no group of people would bear
a disproportionately higher share of adverse environmental consequences resulting from the
proposed work.” USACE_000196.
As for air quality, the Corps analyzed the potential effects of the Project using EPA’s
Compilation of Air Pollutant Emission Factors: AP-42 tool and concluded that the difference
between future without-project and with-project vessel emissions was minimal (0–10%).
USACE_000180. The Corps acknowledged that emissions could be expected for the duration of
the Project, but concluded that those emissions would be offset by the long-term decrease in
emissions once the Project improved navigation of commercial vessels and “facilitate[d] newer,
larger, cleaner, more efficient vessels to reach the port.” Id.For corals, the Corps completed an informal consultation with the National Marine
Fisheries Service, see infra at Part I(B)(2)(a), considered the direct effects of dredging and disposal
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on the corals, and assessed the indirect effects using a 150-meter estimated indirect impact zone.
See USACE_000167. The 150-meter zone was chosen “based on a review of the results of in-
water coral sedimentation monitoring associated with the 1980-81 Port Everglades deepening
project . . . and Key West dredging project in 2004.” Id.The Corps also considered risks to historic and cultural resources. The Corps found that
“[e]rosion of San Juan Harbor shorelines is controlled predominantly by wind waves and tidal
currents” and that “[t]he relative infrequency of cargo vessel wakes compared with wind waves
makes them a minor factor contributing to shoreline changes and erosion.” USACE_000184. The
Corps concluded that, because the Project would result in fewer cargo vessels in the Harbor, “all
of the deepening alternatives would generally result in lower impacts to shorelines and existing
protective revetments” and thus “no adverse impacts to historical properties, including Castillo de
San Felipe del Morro, are anticipated.” Id. (emphasis added). For similar reasons, the Corps
concluded that there would be no adverse effect to the viewshed of historic properties because the
Project is expected to result in fewer total ships in the Harbor. See id.The Corps analyzed the potential seabed damage and the impact of the Project on vessel
collisions in the Harbor. The Corps determined that the expected effects of the Project on benthic
life would be the same as during maintenance dredging, USACE_000134, and, after considering
six scientific studies, concluded that although “initial loss of benthic resources [is] likely, quick
recovery between six months . . . to two years . . . is expected.” USACE_000168. The Corps
explained that the Harbor “is known to have many groundings, allisions[,] and collisions” and that
the “entrance channel also presents significant navigational challenges including bar channel
winds and waves causing ships to roll and heel and winds, waves[,] and currents in the entrance
channel caus[ing] ships to alter their speed resulting in squat and sinkage”; the Project, the Corps
8
concluded, “will help improve these conditions for vessels transiting the entrance channel.” See
USACE_003456.
Finally, the Corps looked at the cumulative impact of the Project with “past, present, and
reasonably foreseeable actions” in the same area, see Grand Canyon Tr. v. Fed. Aviation Admin.,
290 F.3d 339, 345 (D.C. Cir. 2002), and alternatives to the Project’s proposed parameters. The
Corps considered the Project in light of the U.S. Coast Guard’s plan for the expansion of another
part of the San Juan Bay—Anchorage Area F—and concluded that the cumulative effects on
benthic resources would be minimal. See USACE_000189. The Corps further concluded that “the
net contribution to cumulative adverse impacts due to the proposed project and the overall
cumulative adverse impact will be appropriately minimized based on” efforts to avoid and mitigate
environmental impacts and federal and state permitting requirements for the proposed and
potential future actions. Id. The Corps considered three potential beneficial-use sites as alternative
disposal sites to the Ocean Disposal Site, see USACE_000141‒42, and “100 possible deepening
and widening alternatives” which it narrowed down to seven by considering technical constraints,
completeness, effectiveness, efficiency, and acceptability, see USACE_000125‒26, 128. The
Corps also considered a “no action” alternative, USACE_000121, but determined that taking no
action would result in a “greater increase in ship transits, . . . result[ing] in greater risk to threatened
and endangered species, and more air pollution,” USACE_000131.
2. ESA Analysis
a. Corals
As required by Section 7 of the ESA, the Corps submitted a Biological Assessment in July
2017 to the National Marine Fisheries Service, requesting formal consultation for certain species
and informal consultation as to others, including seven listed corals. See NMFS_00177, 200. The
Corps concluded in the Biological Assessment that the Project “may affect, but is not likely to
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adversely affect listed corals in the project area.” NMFS_00237. According to the Corps, “[a]ll
seven of the listed corals are found in the Caribbean and have the potential to be found on the
hardbottom habitats near and surrounding the entrance to San Juan Harbor.” NMFS_00207.
Although there is a designated critical habitat for elkhorn and staghorn corals around the Puerto
Rican coast, the Corps explained that “the portion of the harbor that is inside San Juan Bay is not
[designated critical habitat] for” those species. NMFS_00211. Additionally, the designated
critical habitat is “at least 1,700 feet to the west of the entrance channel and approximately 3,000
feet” from the “closest area to be dredged.” NMFS_00235‒36. And there was not a designated
critical habitat for the other five species of corals. NMFS_00220.
The Corps acknowledged that, in general, dredging “may affect light penetration into the
water column as a result of turbidity, and may also result in burial from sedimentation, which can
destabilize the benthic community.” NMFS_00232. But the Corps explained that the “corals that
may have recruited to the rock areas to the east and west of the channel entrance are [already]
exposed to very high levels of background sedimentation” and therefore “are more tolerant to these
conditions than those located in clearer, less turbid waters.” NMFS_00237. The Corps also
explained why the “temporary effects to corals associated with dredging” experienced in a recent
dredging project in Miami wouldn’t necessarily occur in San Juan Harbor, in part because the
corals in Miami “were located immediately adjacent to the channel.” NMFS_00235. Additionally,
the Corps explained that “while the potential exists for sedimentation from the project to be carried
out of the [Harbor] on an outgoing tide and deposited on the [designated critical habitat], it will
likely be a very low volume of material, as only the smallest of grain sizes will remain in the water
column for that distance.” NMFS_00236. The Corps concluded that disposing of the dredged
materials in the Ocean Disposal Site “will have no effect on the listed corals” or the designated
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critical habitat. NMFS_00239. And the Corps explained that turbidity monitoring is required for
all its projects. NMFS_00238.
In May 2018, the National Marine Fisheries Service issued a written concurrence that the
Project was not likely to adversely affect the listed corals or their critical habitat. NMFS_00019‒
22. The Fisheries Service explained that because no listed corals were found within the dredging
area, the Project would not result in the direct removal of listed corals. NMFS_00020. As to
indirect effects, the type of sediment in the Harbor—as well as the turbidity monitoring plan
limiting project-related turbidity to 7 NTU 1 or less above background levels and implementing
adaptive-management measures—led the Fisheries Service to conclude that any effects on corals
would be “discountable.” NMFS_00020‒21. And for the designated critical habitat “2,500 [feet]
north of the dredging area and adjacent to the disposal routes,” the Fisheries Service concluded
that with the implementation of the turbidity monitoring plan, the effects would also be
“discountable.” NMFS_00021‒22.
b. Manatees
The Corps also submitted a Biological Assessment to the Fish and Wildlife Service and
requested informal consultation as to the Antillean manatee in August 2017. FWS_01349. The
Corps concluded that the Project may affect, but was not likely to adversely affect, manatees.
FWS_01349‒50. The Corps acknowledged that the Antillean manatee “inhabits the coastal waters
of Puerto Rico, and has been documented both feeding and traveling in the San Juan Bay and
Harbor,” where seagrass and other submerged aquatic vegetation grows. FWS_01364. But the
Corps concluded that the Project would have “negligible effects on manatee foraging habitat”
because the mangrove wetlands and submerged aquatic vegetation were too far from the dredging
1
“NTU,” or “Nephelometric Turbidity Units,” is a measure of cloudiness. See Pls.’ Mot. at 28.
11
area to experience direct or indirect effects. See FWS_01365. The Corps also concluded that the
Project would result in fewer ships calling to port by allowing both larger ships and fully-loaded
ships to reach the port, which would, in turn, “reduce the potential for vessel strikes to manatees.”
Id. During the dredging and disposal operations, “observers would be required to monitor for the
presence of Antillean manatees” and “operations would be shut[ ]down should a manatee come
within 50-feet or closer to in-water operations.” Id.; see also FWS_1366‒67 (identifying other
environmental commitments that would be in place to reduce the potential effects of the dredging
project on manatees).
In June 2018, the Fish and Wildlife Service issued a written concurrence that the Project
was not likely to adversely affect manatees. FWS_0047‒51. The Wildlife Service’s concurrence
included a Coordination Action Report for the Project that included specific measures to address
potential effects on manatees and their habitat. FWS_00047. For example, the Project must have
a “protective species watch plan”; all in-water activities must be shut down if a manatee comes
within 50 feet of the active construction site during daytime hours or within 75 feet during
nighttime construction; certain lights will be used during nighttime dredging to permit the
continued observation of manatees; and all vessels in shallow waters must operate at “no
wake/idle” speed. FWS_00048‒49.
3. Project Authorization
The Project was recommended by the Chief of Engineers in August 2018.
USACE_000004‒08. Congress authorized the Project in October 2018. See America’s Water
Infrastructure Act of 2018, Pub. L. No. 115-270, 132 Stat. 3765. The Corps finally approved the
Project in November 2018 with a finding that it would have no significant impact to the human
environment, and therefore an environmental impact statement would not be required.
USACE_000001‒03.
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A few events have occurred since authorization. First, in November 2020, the National
Marine Fisheries Service proposed a critical habitat for certain threatened corals in the Caribbean. 2
Endangered and Threatened Species; Critical Habitat for the Threatened Caribbean Corals, 85 Fed.
Reg. 76,302 (Nov. 27, 2020). The Corps did not re-initiate consultation with the National Marine
Fisheries Service to consider the effects of the Project on the newly proposed critical habitat. See
Defs.’ Reply at 43‒44, ECF No. 29. Second, in January 2023, the Corps supplemented its
environmental assessment and clarified that during initial construction, the Corps will deposit
dredged material only in the Ocean Disposal Site and not in Condado Lagoon. USACE_024449.
The Supplemental Environmental Assessment also explained that in response to public comments,
the Corps expanded its environmental justice analysis area to a five-mile radius and still concluded
that the Project “will not have disproportionately high or adverse impacts on low income or
minority communities.” USACE_024688‒89.
C. Procedural History
El Puente sued the Corps, the National Marine Fisheries Service, the Fish and Wildlife
Service, and other federal defendants in August 2022. See Compl., ECF No. 1. El Puente later
filed a Motion for Summary Judgment, ECF No. 20, 3 and the government responded with a Cross-
Motion for Summary Judgment, ECF No. 22. The Court held a hearing on the motions on June 5,
2023.
2
The parties dispute whether this proposed habitat overlaps with the Project’s dredging sites.
Compare Pls.’ Mot. at 53, with Defs.’ Cross-Mot. at 59.
3
El Puente’s complaint includes nine claims for relief but it seeks summary judgment only as to
seven of them. Compare Compl. with Pls.’ Mot.
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II. LEGAL STANDARDS
Summary judgment shall be granted “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a).
Under the Administrative Procedure Act, a “reviewing court shall . . . hold unlawful and
set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). An agency is
required to “examine the relevant data and articulate a satisfactory explanation for its action.”
Motor Vehicle Mfrs. Ass’n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
An agency decision is arbitrary and capricious if the agency “entirely failed to consider an
important aspect of the problem” or “offered an explanation for its decision that runs counter to
the evidence before the agency.” Id. In reviewing that explanation, the court “must consider
whether the decision was based on a consideration of the relevant factors and whether there has
been a clear error of judgment.” Id. (quotation omitted). The scope of this review is “narrow” and
the reviewing court “is not to substitute its judgment for that of the agency.” Id.NEPA requires agencies to “take a ‘hard look’ at the reasonably foreseeable impacts of a
proposed major federal action.” Indian River Cnty. v. U.S. Dep’t of Transp., 945 F.3d 515, 533
(D.C. Cir. 2019) (internal citation omitted). And when consulting on the impacts of an agency
action on a listed species and their critical habitat, the ESA requires agencies to “use the best
scientific and commercial data available.” 16 U.S.C. § 1536(a)(2).
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III. ANALYSIS
A. The Corps and the Wildlife Agencies Complied With the Endangered Species Act.
1. The National Marine Fisheries Service Reasonably Concluded That
the Project Is Not Likely to Adversely Affect the Listed Corals.
El Puente argues that the National Marine Fisheries Service’s determination that the Project
was not likely to adversely affect ESA-listed corals was arbitrary and capricious. See Pls.’ Mot.
at 42; accord Compl. at ¶¶ 150‒55 (Count 5). El Puente claims that the Fisheries Service
“anticipated that each of the . . . Project’s 977 scow trips” could leak up to “[o]ne foot of loss per
trip, or more,” leading to a significant amount of sediment leakage. Pls.’ Mot. at 44 (citing
USACE_001647‒48, 1709). El Puente urges that the monitoring plan is not specific enough to
avoid formal consultation, and also that the plan will provide insufficient protection to the listed
corals. See id. at 46. El Puente also criticizes the Fisheries Service’s reliance on “outdated and
generic measures from 2011 that failed to prevent leaking scows in Miami,” id. at 47, and contends
that the Fisheries Service erred in failing adequately to consider the results of the Port of Miami
dredging project, id. at 44, 48.
The Court concludes that the Fisheries Service’s not-likely-to-adversely-affect
determination was not arbitrary and capricious. The Fisheries Service used the best-available
science, considered all the relevant factors, and made no clear errors of judgment.
To start, El Puente misreads the record as to the estimated scow leakage per trip. The
government did not predict “[o]ne foot of loss per trip, or more” for the scows, but rather warned
that “[o]ne foot of loss per trip, or more, could amount to a significant amount of sediment on the
reef there.” USACE_001709 (emphasis added). El Puente points to no evidence of a predicted or
expected loss amount of a foot or more per trip, and the Court has not been able to find such
evidence in the administrative record.
15
Additionally, the monitoring plan is not just “a plan to make a mitigation plan to avoid
formal consultation.” See Pls.’ Mot. at 46. Instead, the plan contains specific guardrails, such as
the limit of 7 NTU above background before mitigation measures are triggered; the placement of
“turbidity monitoring stations adjacent to ESA-listed corals” and “at the edges of the designated
critical habitat for elkhorn and staghorn corals near the disposal vessel transit route”; and the
requirement that the monitoring plan include adaptive management measures should turbidity
exceed 7 NTU above background. NMFS_00011‒12. That turbidity limit was chosen based on
the background turbidity levels in the Harbor, scientific studies indicating that “[t]olerance of
corals to elevated suspended sediment varies from reef to reef, and depends on background
turbidity conditions and hydrodynamic setting,” see USACE_017470, past dredging projects
where the Corps successfully limited turbidity to the Puerto Rican limit of 10 NTU above
background and the turbidity variance during construction “rarely exceeded 5 NTU,”
USACE_001718, and several scientific studies, see, e.g., NMFS_00693‒700 (Fourney &
Figueiredo study). 4
4
El Puente relies on a 2017 Fourney & Figueiredo study to contend that “the proposed trigger for
management at 7 NTUs above background will not prevent coral harm” and “[t]o avoid deleterious
effects, the maximum allowable turbidity near coral reefs during short-term construction events
should be 7 NTU or less.” Pls.’ Mot. at 46. But that study is not as straightforward as El Puente
makes it seem. See NMFS_00693‒700. The suggested turbidity limit of 7 NTU in the study was
both responsive to potential ocean warming above current temperatures and limited to
anthropogenic, as opposed to natural, sedimentation, even though natural sedimentation
contributes to the total turbidity level. Id. Importantly, the study—which demonstrated that
natural sedimentation “aided the survival of corals recruits”—only considered ideal levels of
anthropogenic sedimentation without any natural sedimentation. See NMFS_00698. It is also not
clear that the study’s suggested limit maps on to the corals in San Juan Harbor, which are tolerant
of high background levels of turbidity. See, e.g., USACE_001718 (background turbidity of 9.81
NTU in 2007 and 7.01 in 2017 during past dredging projects). Therefore, although the study has
some import for determining ideal turbidity limits at current temperatures, it was not a clear error
in judgment for the Fisheries Service to decline to adopt the 7 NTU total limit suggested by the
study.
16
The Fisheries Service also did not act arbitrarily or capriciously in relying on the 2011 Site
Management and Monitoring Plan developed by the Corps and EPA for the Ocean Disposal Site.
The Corps and the EPA are required to prepare such a plan every ten years by statute, see 33 U.S.C.
§ 1412(c)(3), and so the 2011 Plan was the operative plan at the time that the Fisheries Service
issued its concurrence in 2018, see NMFS_00113, 118.
Finally, the Fisheries Service’s consideration of data and information from the Port of
Miami dredging project was not arbitrary and capricious. The Fisheries Service did consider the
Port of Miami project during the initial ESA consultation about corals. 5 But it determined that
there were reasons to believe that dredging in San Juan would not have the same results as in
Miami. First, the two locations have materially different geographies. The Port of Miami project
involved a “very long outer entrance channel” extending into the open ocean and a “strong velocity
current which can have speed up to 4.9 knots” running south to north that can carry sediments far
beyond the dredging area. NMFS_00001‒02 (2022 Memorandum). The San Juan Harbor, on the
other hand, “lacks a long entrance channel” and “is not subjected to the same hydrodynamic
processes . . . which can lead to sediment being carried long distances from the dredging area.”
NMFS_00002. Second, there is “significantly less material to be dredged at San Juan Harbor”—
about one third of the material dredged from the Port of Miami—“and it is of a different
composition.” NMFS_00001‒02 Third, the Port of Miami project used rock-chopping methods
that create fine sediment known to cause greater harm to corals, and these methods will not be
5
See, e.g., USACE_001709 (“The scows themselves have sensors on them that indicate if there is
leakage. . . . We’ll indicate quantities and if there is a loss. We did see that in Miami. It was
looked at very carefully and considered as we were moving forward. We took some scows offline
and determined if there was something keeping them from closing. Based on conditions out there
we will implement lessons learned from Miami and follow up on what the sensors indicate.”);
NMFS_00172 (“NMFS is concerned about the statements and conclusions drawn in the
B[iological] A[ssessment] based on the reports from the Port of Miami project.”).
17
used in the Harbor. See id. In sum, the government neither “entirely failed to consider an
important aspect of the problem” nor “offered an explanation for its decision that runs counter to
the evidence.” See State Farm, 463 U.S. at 43. 6
2. The Fish and Wildlife Service Reasonably Concluded That the Project
Is Not Likely to Adversely Affect the Antillean Manatee.
El Puente argues that, in providing its concurrence that the Project is not likely to adversely
affect the Antillean manatee, the Fish and Wildlife Service failed to sufficiently consider the
impacts of noise pollution, vessel strikes, and seagrass destruction. Pls.’ Mot. at 49‒51; accord
Compl. at ¶¶ 156‒59 (Count 6). El Puente further argues that the predicted decrease in vessel
traffic following completion of the Project did not excuse the Wildlife Service from analyzing
vessel-manatee collisions, as “larger-capacity, larger-sized vessels are more deadly for manatees.”
Pls.’ Reply at 50 (citing USACE_026941), ECF No. 26. And El Puente similarly contends that
the Wildlife Service was not excused from considering the Project’s impacts to seagrass just
because the Harbor is not a significant source of seagrass. Id. at 51.
Again, the Wildlife Service’s determination was not arbitrary and capricious. El Puente
has not identified an important factor that the Wildlife Service failed to consider or a clear error in
judgment. The administrative record instead reflects that the Wildlife Service reasonably
concluded that the Project will ultimately result in less vessel traffic (and thus fewer manatee
strikes), as well as a commitment to protect manatees during construction. See FWS_01365‒67.
The study cited by El Puente to assert that “larger-capacity, larger-sized vessels are more deadly
6
The Fisheries Service’s 2022 Memorandum outlining the reasons to treat the Harbor differently
than the Port of Miami is not a post-hoc rationalization. Instead, it memorializes the determination
that the 2019 Miami study—which was published after ESA consultation about the corals—did
not require re-initiation of consultation between the Corps and the Fisheries Service, see
NMFS_00001‒02. El Puente does not argue in its Motion for Summary Judgment that the failure
to re-initiate consultation was unlawful.
18
for manatees” was published after the Wildlife Service issued its concurrence and therefore was
not in the record considered by the agency. See Defs.’ Reply at 41 n.15 (citing USACE_026941).7
The administrative record also reflects that the Wildlife Service considered the Project’s effects
on seagrass and determined that the effects on manatee foraging habitat would be “negligible.”
FWS_01365. And the noise pollution threshold identified by El Puente does not apply to animals
within the purview of the Wildlife Service. USACE_006239 (technical guidance specifying that
it “does not pertain to marine mammal species under the []FWS’s jurisdiction (e.g., walrus, polar
bears, manatees, sea otters)”). 8
3. The Corps Was Not Required to Confer With the National Marine
Fisheries Service On the Proposed Critical Habitat.
El Puente also argues that the Corps unlawfully failed to confer with the Fisheries Service
on a proposed critical habitat for five threatened corals in Puerto Rico. Pls.’ Mot. at 52; Compl. at
¶¶ 162‒166 (Count 7). In particular, in November 2020—two years after the Fisheries Service
issued its written concurrence that the Project was not likely to adversely affect the listed corals or
their critical habitat—the Fisheries Service proposed a rule that would designate approximately
7
The study also does not support El Puente’s argument that the Corps’s decision was unreasonable.
The study explains that “[i]ncreased boating activity and boat density have been predictably linked
to higher probability of manatee-boat collisions,” which is consistent with the government’s
conclusion that decreased vessel traffic will be safer for manatees, even if the vessels are larger.
See USACE_026941. And the study explains that manatees are “acutely at risk from vessels in
shallow water” and so the “use of deep water routes by construction-associated vessels whenever
possible also reduce risks to manatees,” suggesting that the deeper channels post-construction will
make the Harbor safer for manatees in the future. See id. In other words, the study, taken as a
whole, would not have rendered the Corps’s decision unreasonable, even if it had been published
before the concurrence was issued.
8
El Puente argues that because the Services’ concurrences were flawed, it was unlawful for the
Corps to rely on them. Pls.’ Mot. at 52; accord Compl. at ¶¶ 167‒68 (Count 8). The Court
disagrees: because the concurrences were not arbitrary and capricious, it was lawful for the Corps
to rely on them.
19
15,000 square kilometers of the Caribbean as a designated critical habitat for certain corals. 85
Fed. Reg. 76,302. El Puente acknowledges that the proposed rule was published after the
concurrence, but argues that the Corps was required to confer with the Fisheries Service on the
impacts to the critical habitat because the Service “continued to consult on impacts to endangered
species through 2021.” Pls.’ Mot. at 54.
The Court disagrees. Because the proposed rule was published long after the Fisheries
Service’s concurrence was issued and consultation was terminated, see 50 C.F.R. §§ 402.14(m)(1)
(formal consultation), 402.13(c) (informal consultation), the Corps was only required to confer
with the Fisheries Service if the proposed rule triggered what is known as re-initiation, see id.§ 402.16(a). But proposals to designate critical habitats do not trigger a requirement to re-initiate
consultation, id., and so the Corps acted lawfully.
B. The Corps Complied With the National Environmental Policy Act.
El Puente claims both that the Corps’s Environmental Assessment is inadequate under
NEPA and that NEPA independently required the Corps to complete an environmental impact
statement. Pls.’ Mot. at 12, 38; accord Compl. at ¶¶ 133‒42 (Counts 1 & 2).
1. The Environmental Assessment Was Adequate Under NEPA.
With respect to the Environmental Assessment, El Puente contends that it was inadequate
because the Corps failed to take a “hard look” at (1) connected actions, particularly new LNG
infrastructure that may be built in the Harbor and potential additional dredging; (2) environmental
justice communities; (3) air pollution; (4) impacts to corals; (5) risks to historic resources; (6)
seabed damage and risks of oil spills and LNG accidents; (7) cumulative impacts; and (8) a
reasonable range of alternatives. See Pls.’ Mot. at 13. Because the Corps adequately considered
all these environmental considerations, the Court concludes that the Environmental Assessment
was adequate.
20
Starting with connected actions, it is undisputed that an agency must consider “connected
actions” in its NEPA review. 40 C.F.R. § 1508.25(a)(1). Actions are “connected” if, among other
things, they “[c]annot or will not proceed unless other actions are taken previously or
simultaneously” or they are “interdependent parts of a larger action and depend on the larger action
for their justification.” Id. § 1508.25(a)(1)(ii)‒(iii). Courts consider several factors to determine
whether actions are “connected,” including “whether one project will serve a significant purpose
even if a second related project is not built” and the “commercial and financial viability of a project
when considered in isolation from other actions.” City of Boston Delegation v. Fed. Energy Regul.
Comm’n, 897 F.3d 241, 252 (D.C. Cir. 2018) (quotations omitted).
In El Puente’s view, LNG infrastructure is a “connected action” in the context of the
Project—and thus the Corps was required to assess the environmental impact of that action. See
Pls.’ Mot. at 13‒16. More specifically, El Puente argues that “[t]he LNG infrastructure has no
independent utility without the dredging, which is necessary for most LNG tankers to navigate the
Bay.” Id. at 15. And El Puente asserts that “[b]oth projects were planned to be constructed around
the same time” and “require federal approvals.” Id.
The Corps did not improperly segment the Project from LNG infrastructure. To start,
potential LNG infrastructure in Puerto Rico is not a wholly federal affair. Although the conversion
of power plants to LNG would require approval from the Federal Energy Regulatory Commission,
whether an application is ever filed is in the hands of the Puerto Rico Electric Power Authority
(PREPA) and the private organizations partnering with PREPA. See USACE_001722. No such
application had been filed at the time of the Environmental Assessment, see USACE_000151, so
it could not have been considered a FERC project at that time. Because “[t]he connected-actions
doctrine does not require the aggregation of federal and non-federal actions,” see Big Bend
21
Conservation All. v. Fed. Energy Regul. Comm’n, 896 F.3d 418, 424 (D.C. Cir. 2018), the
possibility of LNG infrastructure did not need to be considered as a “connected action” to the
Project.
Puerto Rico’s conversion to LNG is also uncertain. Although PREPA did state that its
$350 million investment into LNG infrastructure would be dependent on the Project’s happening,
see USACE_001722, the Corps reasonably concluded that whether PREPA will move forward
with this conversion was subject to great “uncertainty” at the time of the Environmental
Assessment, see USACE_000038, 151. The Corps detailed this uncertainty in the Environmental
Assessment itself:
The combination of PREPA’s 2017 bankruptcy, frequent changes to
plans including a 2018 announcement by the Governor of Puerto
Rico calling for privatization of PREPA, and the damage caused by
Hurricanes Irma and Maria have created a climate of uncertainty
surrounding if and when the LNG investment and conversion will
occur.
USACE_000151; see also id. (“There is a level of uncertainty surrounding PREPA’s conversion
to LNG and the timing of the conversion.”). The Corps also decided that “[r]egardless of which
scenario actually occurs, the Recommended Plan remains the same, the exact same Federal
navigation improvements are proposed.” USACE_000152. “In view of the uncertainty
surrounding the [LNG infrastructure], and the difference in timing between the two projects, this
discussion suffices under NEPA.” See Minisink Residents for Env’t Pres. & Safety v. Fed. Energy
Regul. Comm’n, 762 F.3d 97, 113 (D.C. Cir. 2014).
To be sure, the Corps did discuss the possibility that Puerto Rico would convert some of
its energy usage to LNG in its consideration of whether to move forward with the Project. But the
Corps did so to ensure that the Project was economically justified. See USACE_000034‒35. In
particular, the Corps considered the economics of the Project with and without LNG conversion,
22
and concluded that the Project was economically justified either way. See id. Other references to
potential LNG benefits throughout the Environmental Assessment do not prove that the conversion
to LNG (and the construction of related infrastructure) is a connected action; LNG benefits were
never used as the sole justification or counterweight to potential negative effects of the Project,
and the Corps has no control over whether Puerto Rico ultimately decides to convert to LNG. See,
e.g., USACE_000033. The Corps therefore reasonably concluded that the Project will “serve a
significant purpose even if [the LNG infrastructure is] not built” and that the Project has
“commercial and financial viability . . . when considered in isolation.” See City of Boston
Delegation, 897 F.3d at 252. 9
As for potential effects of the Project on environmental justice communities, the Corps did
take a “hard look” at the question—twice. The Corps first looked at the environmental justice
factors within a one-mile radius of the project site; later, in response to public comments, the Corps
analyzed the question using a five-mile radius. See USACE_022648, 24688‒89. El Puente argues
that the supplemental analysis was limited to a consideration of the effects of dredging Condado
Lagoon, but that analysis itself makes clear that the Corps was considering the environmental-
justice effects of the entire project. See USACE_024688 (“Public comment from the 2021 draft
9
For similar reasons, the Court rejects El Puente’s “dredging begets more dredging” arguments
about Anchorage Area F and additional dredging at the docks. The Coast Guard is considering
additional dredging in Anchorage Area F “for safety purposes as a safety area for ships
experiencing mechanical failures or other emergencies.” USACE_000067. If the Coast Guard
decides to further dredge Anchorage Area F, the Coast Guard will have to engage in the rulemaking
process—which, as far as the record shows, has not begun—and comply with its own legal
obligations. See id. The Corps considered the possibility of such dredging in its cumulative effects
analysis, USACE_000189, but the uncertainty, timeline, and independent purpose of that potential
project lead this Court to conclude that it is not a “connected action” to the San Juan Harbor
Project. See City of Boston Delegation, 897 F.3d at 252. Likewise, the potential additional
dredging at the docks by “private parties,” see Pls.’ Mot. at 17, would not be federal actions and
therefore are excluded from the connected-action analysis, Big Bend Conservation All., 896 F.3d
at 424.
23
SEA requested additional EJ analysis. Therefore, the area evaluated for this Project was extended
to 5-miles, which should encompass all potential project effects to surrounding communities.”).
El Puente also contends that the timing of the hurricanes limited public participation in the process,
but has proffered no evidence of late-submitted comments that weren’t considered by the
government or of any request to extend the comment period. See Defs.’ Cross-Mot. at 24.
The Corps also adequately considered the Project’s potential impacts on air quality. El
Puente argues that the Corps’s comparative analysis was unreasonable and that the Corps should
have instead disclosed and analyzed the aggregate air emissions and their effects on health. Pls.’
Mot. at 22‒23; accord id. at 23 (“NEPA requires disclosure of cumulative pollution impacts; an
incremental comparison is insufficient.” (citing Grand Canyon Tr., 290 F.3d at 345–46)). But the
cases on which El Puente relies do not undermine the Corps’s decision to do a comparative
analysis. In Grand Canyon Trust v. Federal Aviation Administration, the Court of Appeals
rejected the use of an incremental analysis where the agency claimed that the new airport would
only contribute a 2% increase in overflights near Zion Park, but failed to consider whether that 2%
increase would “significantly affect” the quality of human environment. 290 F.3d at 345‒46
(alteration adopted). Here, in contrast, the Corps did consider whether the increase in air pollutants
would “significantly impact” the quality of the human environment. In particular, the Corps
predicted that if all other operations in the Harbor remained the same, the Project would cause a
vessel emissions increase of 0–10%, but that the Project “will also facilitate newer, larger, cleaner,
and more efficient vessels to reach the port.” USACE_000180. As the Corps put it, because “large
vessel access to the port terminals will not be restricted, some of the non-monetary benefits of the
proposed action include reduced and less concentrated air emissions, noise, and vessel traffic.”
24
USACE_000187. 10 These newer, cleaner vessels include but are not limited to LNG vessels, and
with respect to LNG vessels, the Corps further predicted that “future conversion of the Power
Plants from bunker or diesel fuel oil to LNG will improve the air quality of the harbor and also
offset any additional emissions from the future commerce therein.” USACE_000180. The Corps
also noted that the area “experiences nearly constant trade winds and sea breezes,”
USACE_000180, analyzed the project under the Clean Air Act regulations, and determined that
the Project “would not exceed de minimis . . . levels of direct or indirect emissions of a criteria
pollutant or its precursors,” USACE_000181. This analysis satisfied the Corps’s obligations under
NEPA.
WildEarth Guardians v. Zinke is also inapposite. There, the Court determined that the U.S.
Bureau of Land Management failed to quantify predicted aggregate greenhouse gas emissions that
would result from reasonably foreseeable future drilling projects on leased parcels of land. 368 F.
Supp. 3d 41, 71 (D.D.C. 2019). Here, in contrast, the Corps did consider the effects of potential
future projects by considering the possibility that Puerto Rico would convert to LNG, which it
reasonably concluded would result in lower emissions. See USACE_000180; see also WildEarth
Guardians v. Bernhardt, 502 F. Supp. 3d 237, 248‒49 (D.D.C. 2020) (same).
As for corals, as discussed above, the Corps thoroughly considered the potential impacts
of the Project in consultation with the Fisheries Service. See supra Part III(A)(1). El Puente
complains that the 150-meter impact zone used by the Corps was unreasonably small, relied on
outdated data, and ignored the results of the Port of Miami project on corals. Pls.’ Mot. at 25‒28.
10
More specifically, based on the same consumption of petroleum “commodities per year,” the
Corps predicts a “reduction in the number of vessels used to transport petroleum products each
year,” id., and thus that “total air emissions within the harbor and at each terminal would decrease
in a given year as a result of the harbor widening and deepening,” id.
25
But again, the Corps meaningfully and reasonably differentiated the Miami project and therefore
did not act unreasonably by relying on other past projects that occurred in locations more like the
Harbor. See supra Part III(A)(1).
As for the Project’s potential effect on historic and cultural resources, El Puente contends
that the Corps failed to consider the effect that larger (even if fewer) ships would have on erosion
and the Harbor’s viewshed. Pls.’ Mot. at 30‒32. El Puente also argues that the Corps should have
analyzed the “additive contribution of larger ship wakes” rather than “dismiss[ing] erosion from
ship wakes as negligible by comparing it to that caused from waves and wind.” Pls.’ Mot. at 31
(citing Grand Canyon Tr., 290 F.3d at 345). But the Corps did sufficiently consider these issues;
rather than merely engage in an incremental analysis, the Corps concluded that the Project would
“reduce the shoreline impact of vessel wakes by reducing the number of vessels and increasing the
range of tides during which vessels can transit the harbor.” USACE_000184. And the Corps
concluded that fewer, larger ships would not negatively impact the viewshed as compared to the
current vessel traffic in a Harbor already characterized by commercial and recreational vessel
traffic. See id. Without a “clear error of judgment,” the Court cannot “substitute its judgment for
that of the agency.” See State Farm, 463 U.S. at 43.
With respect to potential seabed damage and risks of oil spills and LNG accidents, El
Puente characterizes the Corps’s treatment of risks to benthic life as “flippant” and “cursory.” Pls.’
Mot. at 33. But to support its conclusion that “initial loss of benthic resources [is] likely, quick
recovery between six months . . . to two years . . . is expected,” the Corps cited six scientific studies
that supported the recovery time frame. See USACE_000168. El Puente also argues that the
environmental assessment “omits analysis of vessel traffic,” Pls.’ Mot. at 33, but the Corps detailed
why widening and deepening of the Harbor would improve the conditions that have historically
26
led to accidents. See USACE_003456 (explaining that the Harbor “is known to have many
groundings, allisions[,] and collisions” and that the “entrance channel also presents significant
navigational challenges including bar channel winds and waves causing ships to roll and heel and
winds, waves[,] and currents in the entrance channel cause ships to alter their speed resulting in
squat and sinkage” and that the Project “will help improve these conditions for vessels transiting
the entrance channel”). And El Puente does not identify what other occurrences—other than the
collisions, groundings, and allisions the government addressed—would constitute vessel
accidents.
Finally, contrary to El Puente’s contentions, the Corps took a “hard look” at the cumulative
impacts of the Project and reasonable alternatives. As detailed previously, the Corps considered
the Project in light of the U.S. Coast Guard’s plan for the expansion of Anchorage Area F and
concluded that the cumulative effects on benthic resources would be minimal. See
USACE_000189; supra n.9. The Corps also concluded that “the net contribution to cumulative
adverse impacts due to the proposed project and the overall cumulative adverse impact will be
appropriately minimized based on” efforts to avoid and mitigate environmental impacts and
federal and state permitting requirements for the proposed and potential future actions.
USACE_000189. And as for alternatives, the Corps considered three potential beneficial-use sites
as alternative disposal sites to the Ocean Disposal Site, see USACE_000141‒42, and “100 possible
deepening and widening alternatives” which it narrowed down to seven by considering technical
constraints, completeness, effectiveness, efficiency, and acceptability, see USACE_000125‒26,
128. The Corps also considered a “no action” alternative, USACE_000121, but determined that
taking no action would result in a “greater increase in ship transits, . . . result[ing] in greater risk
27
to threatened and endangered species, and more air pollution,” USACE_000131. These analyses
were sufficiently “hard looks” at the relevant factors.
2. NEPA Did Not Separately Require an Environmental Impact
Statement.
As explained above, NEPA requires agencies to prepare an environmental impact
statement for all “major Federal actions significantly affecting the quality of the human
environment.” 42 U.S.C. § 4332(C). “Whether a project has significant environmental impacts,
thus triggering the need to produce an [environmental impact statement], depends on its ‘context’
(region, locality) and ‘intensity’ (‘severity of impact’).” Nat’l Parks Conservation Ass’n v.
Semonite, 916 F.3d 1075, 1082 (D.C. Cir. 2019), amended on reh’g on other grounds by 925 F.3d
500 (D.C. Cir. 2019) (quoting 40 C.F.R. § 1508.27). Intensity, in turn, requires the consideration
of ten enumerated factors that “should be considered,” including the “degree to which the proposed
action affects public health or safety.” See 40 C.F.R. § 1508.27(b), (b)(2). Actions that will not
“significantly affect[] the quality of the human environment” require only an environmental
assessment. See Env’t Def. Ctr., 36 F.4th at 872 (quotation omitted).
El Puente argues that NEPA required the preparation of an environmental impact statement
because the Project may have a significant impact on the quality of the human environment. Pls.’
Mot. at 38. El Puente highlights the context of the Project—the San Juan Bay Estuary and San
Juan National Historic Site—and four “intensity factors”—public health and safety, proximity to
numerous historic and cultural resources, threats to threatened and endangered species, and
cumulative effects. Id. at 38‒42. More specifically, El Puente argues that public health and safety
will be adversely affected by the air pollution and the risk of oil and LNG accidents, that the
Project’s location is close to historic landmarks, that the Project includes dredging that injures and
28
kills sea turtles, corals, and manatees, and that the cumulative effects from other federal actions in
San Juan Bay exacerbate the effects from the Project. Id.
The Court’s role here is “limited,” “designed primarily to ensure that no arguably
significant consequences have been ignored.” Semonite, 916 F.3d at 1082 (quoting Myersville
Citizens for a Rural Cmty., Inc. v. Fed. Energy Regul. Comm’n, 783 F.3d 1301, 1322 (D.C. Cir.
2015)). To determine whether the Corps’s decision was arbitrary and capricious, the Court asks
“whether the Corps is ‘able to make a convincing case for its finding’ of no significant impact.”
Id. (quoting Sierra Club v. U.S. Dep’t of Transp., 753 F.2d 120, 127 (D.C. Cir. 1985)).
El Puente has not identified any intensity factors that the Corps failed to consider. Instead,
El Puente argues that, in considering several intensity factors, the Corps should have weighed
certain evidence more heavily. See Pls.’ Mot. at 39‒42. The Court is unpersuaded.
As explained above, the Corps took a hard look at potential air pollution and safety risks
from the Project, effects on historic resources, and cumulative impacts. See supra Part III(B)(1).
Likewise, the Corps thoroughly considered the impacts on endangered species, engaged in formal
and informal consultation as required, and reasonably determined that the effects on corals and
manatees would not be significant. See supra Part III(A). As to sea turtles, the National Marine
Fisheries Service concluded after formal consultation that the Project “may adversely affect but is
not likely to jeopardize the continued existence of green, loggerhead, and hawksbill sea turtles.”
NMFS_00004. But “NEPA regulations direct the agency to consider the degree of adverse effect
on a species, not the impact on individuals of that species,” Env’t Prot. Info. Ctr. v. U.S. Forest
Serv., 451 F.3d 1005, 1011 (9th Cir. 2006), and it was not arbitrary and capricious for the agencies
to “determine that although there will be some effect on individual” animals, the Project “will not
29
cause a significant adverse effect on the species and require an [environmental impact statement],”
see id.Finally, the Corps was not bound by its original statement that it would prepare an
environmental impact statement. See USACE_007577. The announcement that the Corps was
initiating all the environmental procedural requirements for the Project did not lock the Corps into
an environmental impact statement, as agencies are permitted to first prepare an environmental
assessment if the agency is “unsure whether its proposed action will have significant
environmental impacts.” See Env’t Def. Ctr., 36 F.4th at 872. And there is no evidence that the
Corps had originally decided that such an impact may occur when it made its original
announcement.
C. The Corps Complied With the Clean Water Act.
El Puente argues that the Corps failed to comply with the requirements of the CWA. See
Pls.’ Mot. at 9; accord Compl. at ¶¶ 145‒49 (Count 4). 11 According to El Puente, the Corps
violated the guidelines for section 404(b)(1) of the CWA by failing to “consider or analyze less
environmentally damaging alternatives, such as a smaller project footprint or another Project
design that would avoid or minimize discharges of dredged material and impacts to aquatic habitat
and species, including corals.” Pls.’ Reply at 4‒5. El Puente further argues that the Corps
“violated the Clean Water Act’s requirements to avoid and minimize damage to corals from its
dredging, transport, and disposal activities.” Id. at 5‒6 (citing 40 C.F.R. § 230.10(c)‒(d)).
But as noted above, the record shows that the Corps considered “100 possible deepening
and widening alternatives” which it narrowed down to seven by considering technical constraints,
11
El Puente originally contended that the Corps were required to prepare an environmental impact
statement by the plain language of the CWA, see Pls.’ Mot. at 9 (citing 33 U.S.C. § 1344(r)), but
this argument was later abandoned. See Defs.’ Reply at 1.
30
completeness, effectiveness, efficiency, and acceptability. See USACE_000125‒26, 128. The
Corps also considered a “no action” alternative, USACE_000121, but determined that taking no
action would result in “greater increase in ship transits, . . . result[ing] in greater risk to threatened
and endangered species, and more air pollution,” USACE_000131. The Corps also considered
multiple alternatives for where to deposit the dredged material, including Condado Lagoon, but
decided for the initial construction that all material would be placed in the Ocean Disposal Site.
USACE_000140‒43, 24449. The Corps completed a CWA Section 404 analysis for the disposal
alternatives. See USACE_001110‒24. The Biological Assessment regarding corals shows that
the Corps properly considered the potential effects on corals from dredging, transport, and
disposal. See NMFS_00229‒39. And the Court notes that El Puente does not challenge the
Corps’s compliance with the MPRSA for the disposal in the ODMDS.
CONCLUSION
For the forgoing reasons, the Court grants the Defendants’ Cross-Motion and denies
Plaintiffs’ Motion. An appropriate order will accompany this opinion.
DATE: July 24, 2023
CARL J. NICHOLS
United States District Judge
31