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Federal Project PermittingHow to Build Defensible Records and Win Permit AppealsWASHINGTON PUBLIC PORTS ASSOCIATIONSEPTEMBER 27, 2007: 

Federal Project Permitting How to Build Defensible Records and Win Permit Appeals WASHINGTON PUBLIC PORTS ASSOCIATION SEPTEMBER 27, 2007 Beth S. Ginsberg STOEL RIVES LLP

OVERVIEW: 

OVERVIEW How to Build Successful Federal Permitting Record That Can Survive Judicial Challenge Assumption: Port needs permit to perform in-water work Agency record What is it; how do you build and defend it? Substantive Law Overview Clean Water Act section 404 NEPA Endangered Species Act Litigation “Hot Spots” from cases I’ve recently handled 3rd Runway; Columbia River Channel Deepening; Snake River Dredging; FCRPS challenge

HOW TO BUILD A RECORD: 

HOW TO BUILD A RECORD Work with agency staff to provide technical and legal support Goal is to learn what Corps is thinking; assist in areas where Corps may have concern Act as Corps’ partner Learn of and respond to any opposition

HOW TO BUILD RECORD: 

HOW TO BUILD RECORD Must address legal requirements under all relevant statutes Avoid procedural pitfalls - e.g., administrative exhaustion: “Speak now or forever hold your peace” Must utilize official Corps public process to fullest extent Don’t be afraid to keep on commenting/building record outside official 30 days commenting period Know your audience: its not only Corps, but Court

HOW TO BUILD RECORD: 

HOW TO BUILD RECORD Consider use of Freedom of Information Act (“FOIA”) standing requests for controversial projects Goal is to smoke out opposition Respond to every opposing submittal Mini-litigation within administrative process

HOW TO BUILD RECORD: 

HOW TO BUILD RECORD Anticipate and rebut all legal and technical comments Hire experts Wetland permits, dredging permits raise significant environmental issues that are very scientifically oriented Experts can substantially bolster technical and legal adequacy of record Build Community Support (solicit friendly input)

SUBSTANTIVE LEGAL FRAMEWORK: 

SUBSTANTIVE LEGAL FRAMEWORK Understand statutory and regulatory framework In-water work frequently requires a Corps Section 10 permit (for piers, wharfs, navigation obstructions) For dredging and filling, need Clean Water Act Section 404 permit Will discuss what legal requirements are triggered by these permits

SUBSTANTIVE LEGAL FRAMEWORK CWA Section 404 Permit: 

SUBSTANTIVE LEGAL FRAMEWORK CWA Section 404 Permit Must satisfy EPA’s wetland regulations Prohibits significant degradation of waters Must satisfy Corps’ separate regulations Has broader “public interest” component Both agencies have jurisdiction over dredge and fill permits and EPA ultimately has veto power Strategy: Employ support of both agencies; ensure you address any concerns that either agency voices

SUBSTANTIVE LEGAL FRAMEWORK CWA Section 404 Permit: 

SUBSTANTIVE LEGAL FRAMEWORK CWA Section 404 Permit Must demonstrate that there is no practicable alternative to your project Goal of test is to determine if alternative exists that would be less destructive to wetlands Assumption that non-water dependent activities have a practicable alternative to proposed action e.g., 3rd Runway at SEATAC, (presumption applies) Runway obviously does not need to be built in water.

SUBSTANTIVE LEGAL FRAMEWORKCWA Section 404 : 

SUBSTANTIVE LEGAL FRAMEWORK CWA Section 404 Test is very time consuming and can be expensive (For third Runway, Port looked at and evaluated dozens of potential other sites which had less wetland, special aquatic resource sites impacts; process took years to accomplish) Construction of new marina infrastructure is water dependent; No legal assumption that practicable alternatives exist

SUBSTANTIVE LEGAL FRAMEWORKCWA Section 404: 

SUBSTANTIVE LEGAL FRAMEWORK CWA Section 404 Permit applicants must obtain Clean Water Act Section 401 certification Certification issued by Ecology must conclude that proposed dredge and fill project will not result in water quality violations (process can hold up or kill project) Third Runway litigation now establishes that certification, including completion of PCHB appeal of certification, must be concluded within 1 year of Corps’ publication of applicants’ JARPA (permit application)

SUBSTANTIVE LEGAL FRAMEWORKCWA Section 404: 

SUBSTANTIVE LEGAL FRAMEWORK CWA Section 404 Water quality certification plays key role in satisfying EPA/Corps regulations Analysis takes in depth look at chemical, biological effects of dredging and filling activities; and Weighs activity against water quality standards to ensure that aquatic resource is protected These regulations prohibit fill that causes water quality violations, or is toxic to aquatic life; Corps required to adopt 401 certification; there are exceptions

SUBSTANTIVE LEGAL FRAMEWORKCWA Section 404: 

SUBSTANTIVE LEGAL FRAMEWORK CWA Section 404 Example: Airport Communities Coalition v. Graves (SeaTac Third Runway Challenge) PCHB set stricter fill standards through CWA Section 401 appeal (finding fill criteria would harm aquatic life, violate water quality standards) Corps rejected PCHB standards as they were lower than natural background levels in Puget Sound; Port would have had to find fill to build runway cleaner than soils in surrounding area! Able to reject these because imposed beyond 1-year period

SUBSTANTIVE LEGAL FRAMEWORK CWA Section 404 : 

SUBSTANTIVE LEGAL FRAMEWORK CWA Section 404 In addition to federal and state water quality concerns Must also satisfy Corps’ “public interest review” Broad balancing of a number of public policy areas, including conservation, economics, aesthetics, environmental, historic properties, fish and wildlife values, flood hazards, land use issues and the needs and welfare of communities Can result in additional conditions; If Corps determines issuance of permit is contrary to public interest, permit must be denied.

SUBSTANTIVE LEGAL FRAMEWORKCWA Section 404: 

SUBSTANTIVE LEGAL FRAMEWORK CWA Section 404 Example: (3rd Runway case) – Corps alleged to have failed to properly take into account effects of 9/11 events – e.g. “dramatic drop in flights and reduction of airplane operations”; Airport opponents contended that terrorist attacks were so severe that 3rd runway was no longer needed at SEATAC

SUBSTANTIVE LEGAL FRAMEWORKCWA Section 404: 

SUBSTANTIVE LEGAL FRAMEWORK CWA Section 404 Court disagreed, deferring to FAA and Port’s expertise and explanation Runways were too close together; and Because poor weather, not aircraft operations and number of flights, were cause of huge delays at SEATAC. Practice tip: Courts strongly defer to applicant on project need and purpose (attacks on this basis not likely to succeed)

SUBSTANTIVE LEGAL FRAMEWORKCWA Section 404: 

SUBSTANTIVE LEGAL FRAMEWORK CWA Section 404 Mitigation - goals: “Avoid, minimize, compensate” Should be on site; offsite allowed in rare situations, Must replace same type of wetland or wetland function Mitigation goal: no net loss of wetland function Not an acreage by acreage evaluation; it’s a functional analysis

SUBSTANTIVE LEGAL FRAMEWORKNEPA: 

SUBSTANTIVE LEGAL FRAMEWORK NEPA NATIONAL ENVIRONMENTAL POLICY ACT (“NEPA”) NEPA compliance integral requirement of CWA Section 404 permit Basic Goal of Statute is Procedural Determine whether agency took “hard look” at significant environmental impacts likely to affect environment

SUBSTANTIVE LEGAL FRAMEWORK: 

SUBSTANTIVE LEGAL FRAMEWORK Goal - study potential environmental effects before taking action So potential negative effects can be avoided; Unlike SEPA, NEPA does not prescribe particular results, just the necessary process

SUBSTANTIVE LEGAL FRAMEWORK NEPA: 

SUBSTANTIVE LEGAL FRAMEWORK NEPA What process is mandated? Particular process mandated depends on the level of effects anticipated If no impacts - FONSI If not sure level of impacts, can perform more truncated Environmental Assessment (“EA”) (which is less comprehensive, less in-depth) to determine level of impact

SUBSTANTIVE LEGAL FRAMEWORKNEPA: 

SUBSTANTIVE LEGAL FRAMEWORK NEPA If EA demonstrates significant effects, must proceed to Environmental Impact Statement (“EIS”) Practice Tip- If controversial, likely to be challenged, proceed to EIS; best bet to avoid procedural defect

SUBSTANTIVE LEGAL FRAMEWORKNEPA: 

SUBSTANTIVE LEGAL FRAMEWORK NEPA All evaluations must look at direct, indirect, and cumulative impacts Effects analyzed must be reasonably foreseeable, not remote, speculative

SUBSTANTIVE LEGAL FRAMEWORKNEPA: 

SUBSTANTIVE LEGAL FRAMEWORK NEPA When must NEPA review be supplemented? Example: Third Runway Litigation Judge Rothstein held: New and conflicting information about aircraft operations, which did not change underlying environmental effects (footprint) or scope of impact, did not trigger need to supplement New information has to present a seriously different picture of likely environmental harms to trigger SEIS

SUBSTANTIVE LEGAL FRAMEWORKNEPA: 

SUBSTANTIVE LEGAL FRAMEWORK NEPA NEPA Practice Tip: Ports can be designated joint NEPA/SEPA co-lead agencies Allows hands-on approach - “seat at the table” Allows applicant to be more in control of shaping record Building record to ensure adequacy

SUBSTANTIVE LEGAL FRAMEWORKNEPA: 

SUBSTANTIVE LEGAL FRAMEWORK NEPA Most of NEPA litigation over cumulative effects Additive effects of action plus impacts from past, present and reasonably foreseeable future actions Can be individually minor, but collectively significant Must look at synergistic, additive effects of action

SUBSTANTIVE LEGAL FRAMEWORKNEPA: 

SUBSTANTIVE LEGAL FRAMEWORK NEPA Cumulative Effects Analysis Litigation Hot Spot Environmentalists pushing envelope Great way to defeat project Law requires quantitative and qualitative analyses

SUBSTANTIVE LEGAL FRAMEWORKNEPA: 

SUBSTANTIVE LEGAL FRAMEWORK NEPA NEPA Practice Tip - Evaluation must be geared to level of effect expected; No need to do in depth analysis cumulative effects if direct/indirect effects analysis demonstrates no affect Example – Channel Deepening Ninth Circuit upheld Corps’ cumulative effects determination on salinity issues; Since EIS concluded deepening has no effect on this, “detailed cataloguing of past projects’ impacts would not have “informed the analysis about alternatives for the project”

SUBSTANTIVE LEGAL FRAMEWORKNEPA: 

SUBSTANTIVE LEGAL FRAMEWORK NEPA NEPA Alternatives Analysis: Must analyze reasonable range of alternatives to proposed action – (including the “no action alternative) Goal is to determine whether there is alternative with lesser environmental impacts which still meets project purpose and need. Can screen out alternatives that don’t meet project purpose and need but should be transparent in doing so to avoid challenges

SUBSTANTIVE LEGAL FRAMEWORKNEPA: 

SUBSTANTIVE LEGAL FRAMEWORK NEPA Must look at alternatives that agency may not presently have authority for (Snake River Dredging ruling) - Corps required to consider in addition to dredging, Upstream sediment management practices, temporary reservoir drawdowns, increased flows to flush sediments downstream and slight loading strategies – all of which would reduce need for dredging but still accomplish policy objective.

SUBSTANTIVE LEGAL FRAMEWORKNEPA: 

SUBSTANTIVE LEGAL FRAMEWORK NEPA NEPA Practice Tip Get independent peer review of Corps’ scientific conclusions in highly controversial cases; Lends extra credibility to agency’s evaluation; Was key aspect allowing both District Court and Ninth Circuit to uphold Corps’ Channel Deepening decision

SUBSTANTIVE LEGAL FRAMEWORKESA: 

SUBSTANTIVE LEGAL FRAMEWORK ESA ENDANGERED SPECIES ACT (“ESA”) Section 7 consultation process Agency taking action must prepare Biological Assessment (“BA”) Goal: Determine if proposed agency action “may affect” listed species. If conclude no - no need to proceed to formal consultation When triggered? If there are listed species in action area

SUBSTANTIVE LEGAL FRAMEWORKESA: 

SUBSTANTIVE LEGAL FRAMEWORK ESA Practice Tip: Ports should apply for non-federal representative status To obtain ability to prepare the BA To comment on the Draft Biological Opinion To have seat at table during consultation No public process otherwise mandated. Not like NEPA: Ports, if not non-federal representative, closed out of process, and cannot influence substance of consultation.

SUBSTANTIVE LEGAL FRAMEWORKESA: 

SUBSTANTIVE LEGAL FRAMEWORK ESA ESA Formal Consultation Services (NOAA Fisheries or Fish and Wildlife Service or both) must prepare Biological Opinion (“BO”) BO determines whether project results in jeopardy to species, or adverse modification of species’ critical habitat Jeopardy means to engage in an activity that reasonably would be expected directly, or indirectly, to reduce appreciably the likelihood of survival or recovery of listed species in the wild by reducing the reproduction, numbers or distribution of that species.

SUBSTANTIVE LEGAL FRAMEWORKESA: 

SUBSTANTIVE LEGAL FRAMEWORK ESA ESA - Section 7(d) Prohibits action from going forward until BO is issued and consultation is complete; Functions as statutorily imposed injunction against taking action that could irreparably harm species

SUBSTANTIVE LEGAL FRAMEWORKESA: 

SUBSTANTIVE LEGAL FRAMEWORK ESA If project results in Jeopardy- Services must issue “reasonable and prudent alternatives” (“RPAs”) which if taken, would avoid jeopardy or adverse modification RPAs can be very costly; can significantly modify proposed action

SUBSTANTIVE LEGAL FRAMEWORKESA: 

SUBSTANTIVE LEGAL FRAMEWORK ESA ESA Practice Tip: Front-load proposed action to include mitigation to avoid jeopardy finding; If no jeopardy, can only impose “reasonable and prudent measures” Which are less costly (subject to minor modification rule) Which does not allow Services to change scope, duration, timing and location of project, and Cannot result in more than a “minor change” to project itself

SUBSTANTIVE LEGAL FRAMEWORKESA: 

SUBSTANTIVE LEGAL FRAMEWORK ESA BO will often include incidental take statement Allows permittee to incidentally kill listed species during course of project ITS must be quantified; Must allow Services to determine when ITS is being exceeded so that consultation can be re-initiated

SUBSTANTIVE LEGAL FRAMEWORKESA: 

SUBSTANTIVE LEGAL FRAMEWORK ESA ESA Litigation Hotspots: Incidental take statements Example - Snake River dredging case - court invalidated NMFS’ ITS Which failed to provide numeric value of authorized take, did not explain why that was not possible, and did not provide reasonable surrogate for numeric value; Goal is to allow Services to determine when to re-initiate Surrogate must tell Services when unacceptable level of take is occurring Imposition of work conditions and work window alone insufficient

SUBSTANTIVE LEGAL FRAMEWORKESA: 

SUBSTANTIVE LEGAL FRAMEWORK ESA Litigation Hotspot: “Best scientific and commercial information available” Examples: Channel Deepening - use of independent science board FCRPS case - use of collaborative sovereigns process - “reasonable way to ensure use of best available science” Need not have perfect information - so long as deficiencies documented - what’s “available”

SUBSTANTIVE LEGAL FRAMEWORKESA: 

SUBSTANTIVE LEGAL FRAMEWORK ESA ESA - Adverse modification of critical habitat Example - Snake River dredging judge found dredging substrate where salmon spawn constitutes adverse modification, even if salmon not there when Corps dredges. Court found that presence at particular time not the question. What is relevant is whether part of habitat will be destroyed making it less likely salmon will return.

SUBSTANTIVE LEGAL FRAMEWORKESA: 

SUBSTANTIVE LEGAL FRAMEWORK ESA ESA Litigation Hotspots: Mitigation must be “reasonably certain to occur” Example: Court in FCRPS case rejected Corps’ future promises to implement removable spillways weirs In absence of clear, definitive commitment to employ those devices - rejected Corps promises subject to congressional appropriation or future Corps budgets

HOW TO WIN PERMIT APPEAL: 

HOW TO WIN PERMIT APPEAL Scope of permit appeal: Review is “on the record”; deferential Based on “arbitrary capricious test” - action only overturned if arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law Court does not substitute its views for agency Employs very deferential standard - “presumption of regularity” Court must base review on record before agency at time of decision Prohibits “Monday morning quarterbacking” which includes post-decisional information designed to challenge correctness of decision

HOW TO WIN PERMIT APPEAL: 

HOW TO WIN PERMIT APPEAL Injunctions To preserve status quo pending decision on merits Easily obtained where plaintiff makes showing of harm to environmentally sensitive areas like wetlands/”waters of United States”; or when ESA species involved; or when NEPA violation alleged Courts balance (on sliding scale) likelihood of success on merits against possibility of irreparable injury

HOW TO WIN PERMIT APPEAL: 

HOW TO WIN PERMIT APPEAL Example: Snake River dredging. NMFS found no jeopardy for dredging operation; court said not same as finding no irreparable injury Found habitat would be adversely modified by dredging; which provided need for injunction Court found need for dredging in terms of navigation safety and economic concerns outweighed by environmental harm and procedural harm from series of NEPA violations.

HOW TO WIN PERMIT APPEAL: 

HOW TO WIN PERMIT APPEAL Practice Tip: Consider voluntarily staying permit use until merits resolved Avoids possibility of getting adverse ruling on “likelihood of success on merits’ which makes it difficult to overcome later when briefing the merits