`
`
`
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`EL PUENTE,
`
`CORALATIONS,
`
`CENTER FOR BIOLOGICAL DIVERSITY,
`378 N. Main Ave.
`Tucson, AZ 85702,
`
`
`
`
`
`Case No.: 22-2430
`
`
`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF
`
`
`
`
`
`Case 1:22-cv-02430 Document 1 Filed 08/16/22 Page 1 of 47
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`
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
`
`Plaintiffs,
`
`v.
`
`
`U.S. ARMY CORPS OF ENGINEERS,
`441 G St. NW
`Washington, DC 20314,
`LIEUTENANT GENERAL SCOTT A.
`SPELLMON, Chief of Engineers
`and Commanding General, Army
`Corps of Engineers,
`441 G St. NW
`Washington, DC 20314,
`GINA RAIMONDO, Secretary of Commerce,
`1401 Constitution Ave, NW
`Washington, D.C. 20230,
`NATIONAL MARINE FISHERIES
`SERVICE,
`1315 East-West Highway
`Silver Spring, MD 20910-3225,
`DEBRA HAALAND, Secretary of Interior
`1849 C Street NW
`Washington, DC 20240,
`U.S. FISH AND WILDLIFE SERVICE
`1849 C Street NW
`Washington, DC 20240,
`
`
`
`Defendants.
`
`
`

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`Case 1:22-cv-02430 Document 1 Filed 08/16/22 Page 2 of 47
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`INTRODUCTION
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`1.
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`San Juan Bay on Puerto Rico’s northern coast serves important cultural,
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`ecological, economic, and historical functions for the region. On the shores of the bay are
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`densely populated neighborhoods and Puerto Rico’s largest port. Congress recognized San Juan
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`Bay as an estuary of “national significance,” see 33 U.S.C. § 1330, with ecological values that
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`support fisheries, tourism, wildlife, and protection against tropical storms. Two historic
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`landmarks span the inlet of San Juan Bay—Castillo de San Felipe del Morro (El Morro) and
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`Fortín San Juan de la Cruz (El Cañuelo)—which are preserved for their heritage and cultural
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`values.
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`2.
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`Now, an expansive federal dredging project threatens to harm San Juan Bay,
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`nearby communities, and El Morro.
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`3.
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`The U.S. Army Corps of Engineers’ ill-conceived San Juan Bay Dredging Project
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`will deepen and widen shipping channels for massive vessels. The primary purpose of dredging
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`is for larger tankers of liquified natural gas (LNG) and petroleum to transit the bay.
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`4.
`
`In 2015, the Corps announced it would prepare an Environmental Impact
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`Statement for the project, but it ultimately finalized a less robust Environmental Assessment that
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`ignored a full array of environmental impacts. In August 2018, the Corps erroneously determined
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`that the San Juan Bay Dredging Project would have no significant environmental impacts.
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`5.
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`The Corps’ environmental review omitted analysis of environmental damage from
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`LNG tanker traffic, a new LNG import terminal, and fossil fuel imports. Near the port,
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`overburdened environmental justice communities in Puerto Nuevo, Guaynabo, and Cataño will
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`be exposed to risks from LNG explosions, oil spills, and pollution. The Corps failed to examine
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`the health impacts of breathing smog, particulate matter, mercury, and hazardous air pollution.
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`The LNG tankers would deliver the highly volatile fuel to a newly constructed LNG import
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`Case 1:22-cv-02430 Document 1 Filed 08/16/22 Page 3 of 47
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`terminal that threatens the safety and health of residents. The Dredging Project increases LNG
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`imports to fuel power plants whose emissions will worsen air pollution and climate change.
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`6.
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`The Corps ignored how its decision locked in a fossil fuel pathway for Puerto
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`Rico. While the Corps planned the San Juan Bay Dredging Project, Hurricanes Irma and Maria
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`wiped out power and services throughout Puerto Rico. As it recovered, strong support grew for
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`Puerto Rico to transition its energy utilities away from imported fossil fuels—including
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`enactment of a law requiring 100 percent renewable energy by 2050. The Dredging Project
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`impairs this transition and hampers a move away from fossil fuels.
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`7.
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`The Corps’ Environmental Assessment also overlooked and underestimated other
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`environmental damage from the Dredging Project.
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`8.
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`For example, the Environmental Assessment failed to evaluate the impacts of its
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`plan to enlarge the dredging footprint by 15 acres and transport the dredged materials to
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`Condado Lagoon Estuarine Reserve. Disposing dredged materials in Condado Lagoon threatens
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`to contaminate and degrade this reserve.
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`9.
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`The Environmental Assessment also discounted harms to historic landmarks and
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`cultural resources like El Morro, which is part of a World Heritage Site, and Old San Juan.
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`10.
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`Additionally, the Environmental Assessment ignored damage to infrastructure,
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`water quality, and coral reefs from sediment. It ignored, for example, the effects of dumping
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`more than two million cubic yards of dredged material in the ocean.
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`11.
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`Sediment will also degrade critical habitat and kill corals that are protected under
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`the Endangered Species Act and provide coastal storm protection to San Juan. The Corps
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`claimed there would be no damage to corals from dredging but arbitrarily limited its analysis of
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`impacts to a 150-meter zone. However, a similar Corps’ dredging project in Florida killed a half-
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`million corals with damage extending as far as 3,000 meters—20 times that zone.
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`12.
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`Compounding these problems, the Corps, the National Marine Fisheries Service
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`(NMFS), and the Fish and Wildlife Service (FWS) failed to consult adequately on the impacts of
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`the Dredging Project on endangered and threatened species, in violation of the Endangered
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`Species Act (ESA).
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`13.
`
`Plaintiffs El Puente, CORALations, and the Center for Biological Diversity bring
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`this action challenging the Corps’ actions under the National Environmental Policy Act (NEPA),
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`42 U.S.C. §§ 4321 et seq.; the ESA, 16 U.S.C. §§ 1531–44; and the Administrative Procedure
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`Act (APA), 5 U.S.C. § 702.
`
`14.
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`Plaintiffs seek an order from this court vacating the Corps’ invalid environmental
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`documents and ordering completion of ESA consultation on endangered and threatened species.
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`Plaintiffs also seek an order requiring the Corps prepare a supplemental Environmental
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`Assessment or full Environmental Impact Statement that provides a complete analysis of the
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`Dredging Project’s impacts and considers alternatives and robust environmental safeguards.
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`Pending completion of the ESA and NEPA documents, Plaintiffs seek to enjoin the Corps from
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`soliciting bids for the Dredging Project, entering into dredging contracts, or any further
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`implementation of the Dredging Project.
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`JURISDICTION & VENUE
`
`15.
`
`The Court has jurisdiction over this matter under the ESA’s jurisdictional
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`provision, 16 U.S.C. § 1540(g), and 28 U.S.C. § 1331, because this case presents a federal
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`question under the laws of the United States. An actual, justiciable controversy now exists
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`between Plaintiffs and Defendants, and the requested relief is proper under 28 U.S.C. §§ 2201–
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`2202,5 U.S.C. §§ 701–706, and 16 U.S.C. § 1540(g).
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`16.
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`Venue in this Court is proper under 28 U.S.C. § 1391. This action is brought
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`against an agency of the United States and officers of the United States acting in their official
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`capacities, and Defendants the Corps, Department of Commerce, and Department of Interior are
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`headquartered in the District of Columbia.
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`17.
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`Plaintiffs provided 60-days’ notice of intent to file this suit pursuant to the citizen
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`suit provision of the ESA, 16 U.S.C. § 1540(g), by letter to Defendants dated June 13, 2022.
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`Defendants have not taken action to remedy their continuing violations by the date of this
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`complaint’s filing. Therefore, an actual controversy exists between the parties under 28 U.S.C.
`
`§ 2201.
`
`PARTIES
`
`18.
`
`El Puente de Williamsburg, Inc. is a nonprofit organization with offices in Puerto
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`Rico and Brooklyn, New York. In New York, El Puente founded the Community Alliance for the
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`Environment and co-founded the New York City Environmental Justice Alliance. Its Puerto Rico
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`program, Latino Climate Action Network, is comprised of a group of Puerto Rican residents
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`concerned about the impacts of air pollution and climate change in Puerto Rico. In 2013, El
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`Puente lead a campaign that fostered the Governor’s signature on five Executive Orders in
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`support of climate mitigation and adaptation that, taken collectively, lead all stateside governors’
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`actions regarding climate change policy and paved the way for the approval of Act 33-2019, the
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`Puerto Rico Climate Change, Mitigation, Adaptation, and Resiliency Act. El Puente seeks to
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`build community sustainability through strategies to mitigate and plan for climate change. The
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`organization works with communities affected by Hurricane Maria and other environmental
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`crises by providing support and resources, including supplies and efforts to transform
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`communities to sustainable solar energy. Through community organizing and policy advocacy,
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`El Puente promotes environmental justice and climate change preparedness and prevention. El
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`Puente has long made efforts to address planning for climate change, sea level rise, food security,
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`water availability, and the impacts of power generation on climate change. The San Juan Bay
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`Dredging Project further entrenches the Puerto Rican energy system’s reliance on fossil fuels,
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`which El Puente actively worked against.
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`19.
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`El Puente brings this action on behalf of itself and its members, many of whom
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`live near or regularly visit San Juan Bay. Some El Puente members are residents of the
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`communities closest to the port and LNG terminal facilities, including the Sabana and Amelia
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`Barrios of the Municipality of Guaynabo. Barrio Sabana borders Puerto Nuevo Bay, opposite the
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`site of the LNG terminal, placing homes and families within 500 meters of the terminal’s
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`operations. The risks of an oil spill or LNG tanker accident occurring are of grave concern to the
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`residents of the Barrio Sabana and El Puente members. El Puente’s mission and work is
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`frustrated by the San Juan Bay Dredging Project. El Puente’s members’ enjoyment of their
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`neighborhoods, coast, and bay are adversely affected by the vessels, port activities, traffic, fossil
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`fuel refining, and power generation. El Puente and its members have also suffered informational
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`and procedural harms from the federal government’s actions and omissions.
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`20.
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`For example, one of El Puente’s members is an anthropologist who grew up and
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`currently lives in San Juan, close to the San Juan Bay and the Condado Lagoon. Since childhood
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`he has regularly visited these areas for recreation and work. His enjoyment of these areas, which
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`includes things like, photography, walking, swimming, sailing, eating out, and visiting friends
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`among other activities, are affected by the continuing deterioration of the air quality in Cataño
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`and the changes in the landscape from a culturally astonishing and ecologically diverse space to
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`a polluted and industrialized one. The smell of the fossil-fueled related activities in the
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`neighborhoods closest to the plants causes him respiratory discomfort, nausea, and headaches.
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`Case 1:22-cv-02430 Document 1 Filed 08/16/22 Page 7 of 47
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`Increasing the importation of LNG will only increase these harms, forcing him to change his
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`lifestyle to avoid the affected areas. He has also been a consultant and member of the Scientific
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`and Technical Advisory Committee of the San Juan Bay National Estuary Program. Therefore,
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`the project’s impacts on Condado Lagoon and the species that are part of this ecosystem harm his
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`interests in it, especially after all the efforts to clean the lagoon and bring it back to a healthy
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`state. As an anthropologist interested in the conservation of Puerto Rican heritage and cultural
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`landscapes, the Dredging Project impairs those interests from its potential to harm underwater
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`and coastal resources due to the dredging activities themselves and the erosion caused by the
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`larger vessels. His informational and procedural interests were also frustrated because he, even
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`as a resident of San Juan, lacked adequate information about the project and its potential impacts.
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`The size and significance of this project should have had more public participation and
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`discussion because San Juan Bay is the most important port in Puerto Rico and whatever
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`happens there affects the economy, tourism, food security, and energy of the entire island
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`territory. Finally, as a resident of Puerto Rico, he finds this project goes against federal and local
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`public policy regarding climate change and Puerto Rico’s goal of transitioning entirely to
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`renewable energy. Increasing LNG imports also goes completely against the national goal to
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`reduce fossil fuels.
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`21.
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`CORALations is an award-winning coral reef conservation organization based on
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`the island of Culebra, Puerto Rico. The nonprofit organization was founded in San Juan, Puerto
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`Rico, in 1995. CORALations maintains an annual membership base of about 500 people
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`throughout Puerto Rico, including fishermen and others concerned with water quality and
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`conservation of the archipelago’s environment. CORALations’ mission has three components: to
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`conserve, nurture, and educate. In the interest of conservation, CORALations comments on the
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`sustainability of proposed development projects in the coastal zone, litigates coastal clean water
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`issues, and comments on endangered species and fisheries legislation. Through past clean water
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`litigation, CORALations was responsible for the implementation of stricter clean water standards
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`for all of Puerto Rico’s waters as well as the implementation of an overdue anti-degradation
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`policy. CORALations has a longstanding interest in coral conservation, including partnering on
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`the first successful staghorn coral farming and transplantation project to enhance coral
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`conservation in U.S. Caribbean waters. CORALations also conducts surveys and research about
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`coastal development, coral reef ecosystem health, and water quality in Puerto Rico.
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`CORALations conducts extensive educational outreach efforts in Puerto Rico, including an
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`ocean explorers group (Exploradores Marinos) and educational summer camp.
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`22.
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`CORALations brings this action on behalf of itself and its members, some of
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`whom live in San Juan or visit San Juan Bay estuary for enjoyment of the natural environment.
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`Members of CORALations have viewed, studied, and enjoyed elkhorn and staghorn corals and
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`their habitat on numerous occasions, and intend to do so again in the future. They are concerned
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`over the degraded status of the coral reef system in Puerto Rico, including the dwindling amount
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`of habitat available for growth of elkhorn and staghorn corals. CORALations’ members have
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`visited San Juan Bay, the coast, and Condado Lagoon for research, observation, and enjoyment
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`of corals, reef fish, seagrasses, manatees, and other wildlife in the estuary. They regularly engage
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`in activities in the areas affected by the San Juan Bay Dredging Project. CORALations and its
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`members depend on public disclosure of information and opportunities to participate in decisions
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`about federal activities that impact Puerto Rico’s corals and the marine environment.
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`23.
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`For example, one of CORALations’ members has an apartment in Old San Juan.
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`She has academic, professional, recreational, and conservation interests in coral reefs and the
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`Case 1:22-cv-02430 Document 1 Filed 08/16/22 Page 9 of 47
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`human communities that depend on them. She has a degree in zoology and professional
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`experience in forensic and environmental toxicology. She is motivated in part to conserve local
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`reefs by researching the larval fish and corals that reefs can provide to damaged and depleted
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`reefs hundreds of miles away. She works with fishermen to protect their joint interests in healthy
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`coral reefs and abundant reef fish, including by partnering on projects to farm corals for later
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`out-planting to help replenish natural reefs. Her interests in fisheries and coral reef habitat are
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`harmed by the Dredging Project. Her work interests and support of fishermen, who depend on
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`natural resources for their sustenance, will be adversely impacted by dredging, pollution, and
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`vessel traffic. The environmental effects from the LNG terminal and shipping diminish the health
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`and natural resources of the fisheries and habitat she works to protect. This Dredging Project
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`highlights for her the Corps’ failure to achieve sustainable coastal zone management objectives,
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`including those related to water quality and social justice. She is particularly harmed by the
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`Corps’ plan to dump dredge waste in the designated estuarine reserve area of Condado Lagoon.
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`Her interests in coral health and social justice are injured by the Corps’ failure to consider
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`alternatives to dumping dredge waste in Condado Lagoon and the ocean.
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`24.
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`Plaintiff Center for Biological Diversity is a nonprofit organization that advocates
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`for the protection of threatened and endangered species and their habitats. The Center’s mission
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`also includes protecting air quality, water quality, and public health. The Center’s Oceans
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`Program focuses specifically on conserving marine ecosystems and seeks to ensure that
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`imperiled species such as marine mammals, sea turtles, sea birds, invertebrates, and fish are
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`properly protected, including from threats from pollution, vessel traffic, and habitat destruction.
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`The Center has more than 89,000 members, including members who live in Puerto Rico. The
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`Center has a longstanding interest in the conservation of threatened corals, manatees, and sea
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`turtles in Puerto Rico, including efforts to protect them under the ESA. For example, the Center
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`petitioned to protect elkhorn and staghorn corals under the Act, and it also has undertaken legal
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`work to secure critical habitat protections and recovery plans for corals. The Center has also
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`worked to protect habitat for other Caribbean wildlife and to reduce the risks to whales from
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`vessel noise and ship strikes.
`
`25.
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`The Center brings this action on behalf of itself and its members, some of whom
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`live near or regularly visit San Juan Bay and Puerto Rico’s coast to observe wildlife, boat, swim,
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`snorkel, beachcomb, sightsee, and take pictures. Center members derive recreational and
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`aesthetic enjoyment from their activities in these areas. Their enjoyment depends on the health
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`and condition of the environment and wildlife that migrate through and live in the area—corals,
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`whales, sea turtles, sea birds, manatees, and fish. They also benefit from the beauty of the San
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`Juan Bay Estuary, its habitat, and clean air and water.
`
`26.
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`For example, one Center member lives on the outskirts of San Juan and is harmed
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`by the San Juan Bay Dredging Project and its impacts on wildlife and their habitat. He advocates
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`for wildlife and has interests in the conservation and restoration of the San Juan Bay estuary. He
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`is an avid bird watcher and goes to the San Juan Bay estuary to observe birds — including the
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`Caribbean roseate tern that preys on estuary fish. This summer, he will go to San Juan Bay to
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`bird watch and look for other wildlife, and he plans to regularly return in the future. He enjoys
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`the natural beauty of the San Juan Bay estuary, its mangroves, and its fish and bird habitat. This
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`member also has an affinity for manatees, and although he has yet to see a rare manatee in San
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`Juan Bay, he knows they inhabit the estuary and hopes to see one there. The Dredging Project
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`will suspend sediment and contaminants in the Bay that harm the Center member’s interests in
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`the estuary’s birds and their prey; manatees; and other wildlife. In the past, he has witnessed the
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`harmful impacts of water pollution on Puerto Rico’s birds and wildlife, and such the loss of
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`animals has caused him profound sorrow. The loss of water quality and habitat that will be
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`caused by the San Juan Bay Dredging Project thus injures the Center member’s interests in the
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`estuary’s wildlife.
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`27.
`
`Plaintiffs commented on the Corps’ notice of its intent to prepare an
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`Environmental Impact Statement and Draft Environmental Assessment for the San Juan Bay
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`Dredging Project. The comments described concerns about the environmental effects of the
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`proposal—including adverse impacts of dredging and vessels on wildlife, water quality, and
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`pollution—and highlighted deficiencies of the environmental review. Plaintiffs’ and their
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`members’ interests have been, are, and will be directly, adversely, and irreparably affected by the
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`Defendants’ violations of law. They have also suffered procedural and informational injuries
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`from Defendants’ actions and inactions. If Defendants had properly considered the
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`environmental impacts from the Dredging Project as NEPA, ESA, and CWA require, they may
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`have decided not to pursue the project or required measures that mitigate its harms, better
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`preserving the public health, wildlife, water quality, recreation, and enjoyment in which
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`Plaintiffs have interests. Plaintiffs’ members will continue to be harmed by Defendants’ unlawful
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`actions until and unless this Court provides the relief prayed for in this Complaint.
`
`28.
`
`Defendant U.S. Army Corps of Engineers is a United States agency that regulates
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`dredging activities in the navigable waters of the United States. It is the lead federal agency for
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`the San Juan Bay Dredging Project. The Corps prepared the Environmental Assessment and
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`Finding of No Significant Impact for the project. The Corps is responsible for its compliance
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`with federal environmental laws, including NEPA, the Clean Water Act, and APA.
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`29.
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`Defendant Lieutenant General Scott A. Spellmon is sued in his official capacity as
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`the Chief of Engineers and Commanding General of the U.S. Army Corps of Engineers.
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`Lieutenant General Spellmon is the federal official with the ultimate authority and responsibility
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`for ensuring the Corps’ compliance with federal environmental laws, including NEPA, the Clean
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`Water Act, ESA, and APA, and he has authority to grant the relief requested in this complaint.
`
`30.
`
`Defendant Gina Raimondo is the Secretary of the Department of Commerce and
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`is sued in her official capacity. The Commerce Department is responsible for conserving most
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`marine species under the ESA. Secretary Raimondo is the official ultimately responsible under
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`federal law for ensuring that the actions and management decisions of the Commerce
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`Department and its agencies comply with all applicable laws and regulations, including the ESA
`
`and APA.
`
`31.
`
`Defendant National Marine Fisheries Service is an agency of the Department of
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`Commerce. NMFS is the agency to which the Secretary of Commerce has delegated the
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`authority to conserve most endangered and threatened marine species under the ESA.
`
`32.
`
`Defendant Debra Haaland is the Secretary of the Department of the Interior and is
`
`sued in her official capacity. The Interior Department is responsible for conserving most
`
`terrestrial and freshwater species under the ESA. Secretary is the official ultimately responsible
`
`under federal law for ensuring that the actions and management decisions of the Interior
`
`Department and its agencies comply with all applicable laws and regulations, including the ESA
`
`and APA.
`
`33.
`
`Defendant Fish and Wildlife Service is an agency of the Department of the
`
`Interior. FWS is the agency to which the Secretary of the Interior has delegated the authority to
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`conserve most endangered and threatened terrestrial and freshwater species under the ESA.
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`STATUTORY BACKGROUND
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`National Environmental Policy Act (NEPA)
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`34.
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`NEPA is the nation’s “basic national charter for protection of the environment,”
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`seeking to “insure that environmental information is available to public officials and citizens
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`before decisions are made and before actions are taken.” 40 C.F.R. § 1500.1(a)–(b) (2018).1
`
`35.
`
`NEPA mandates that federal agencies prepare an Environmental Impact
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`Statement (EIS) for all “major Federal actions significantly affecting the quality of the human
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`environment.” 42 U.S.C. § 4332(2)(C). NEPA requires that agencies take a “hard look” at the
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`environmental impacts of their actions.
`
`36.
`
`The environmental review must discuss a proposed action’s direct, indirect, and
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`cumulative effects. 40 C.F.R. §§ 1502.16, 1508.9(b). It must include a reasonable range of
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`alternatives, 42 U.S.C. § 4332(2)(C)(iii), (E); 40 C.F.R. § 1508.9(b), and provide “a clear basis
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`for choice among options by the decisionmaker and the public.” 40 C.F.R. § 1502.14.
`
`37.
`
`Additionally, connected actions must be considered together. 40 C.F.R.
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`§ 1508.25(a)(1). Actions are connected if they “[c]annot or will not proceed unless other actions
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`are taken previously or simultaneously,” or are “interdependent parts of a larger action and
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`depend on the larger action for their justification.” 40 C.F.R. § 1508.25(a)(1).
`
`38.
`
`Federal agencies must consider environmental justice in their activities under
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`NEPA. Exec. Order 12898, Federal Actions to Address Environmental Justice in Minority
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`Populations and Low-Income Populations, 59 Fed. Reg. 7629 (Feb. 16, 1994).
`
`
`
` 1
`
` All NEPA regulations cited herein are to the 2018 edition of the Code of Federal Regulations
`that was in effect when the Corps issued its Environmental Assessment and Finding of No
`Significant Impact for this project.
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`39.
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`An agency may prepare an Environmental Assessment to determine whether the
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`environmental impact of a proposed action may be “significant” and thus warrant preparation of
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`an EIS. 40 C.F.R. §§ 1501.3, 1501.4(b)–(c).
`
`40.
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`An agency’s Environmental Assessment must discuss the need for the proposal,
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`alternatives, and the environmental impacts of the proposed action and its alternatives. 40 C.F.R.
`
`§ 1508.9. The Environmental Assessment must analyze not only the direct impacts of a proposed
`
`action, but also its indirect and cumulative impacts. Id. §§ 1508.7, 1508.8, 1508.25. The direct
`
`effects of an action are those effects “which are caused by the action and occur at the same time
`
`and place.” Id. § 1508.8(a). The indirect effects of an action are those effects “which are caused
`
`by the action and are later in time or farther removed in distance, but are still reasonably
`
`foreseeable.” Id. § 1508.8(b). Cumulative impacts are the result of any past, present, or future
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`actions that are reasonably certain to occur. Id. § 1508.7. NEPA requires an analysis of all
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`reasonable alternatives, even those not within the jurisdiction of the lead agency.Id. § 1502.14.
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`The existence of a viable but unexamined alternative in an Environmental Assessment renders it
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`inadequate.
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`41.
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`Actions with an impact on public health, endangered species, or unique
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`geographic areas, or the presence of other factors may indicate that a project’s impacts are
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`significant and warrant an EIS. 40 C.F.R. § 1508.27(b). An agency may only issue a Finding of
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`No Significant Impact for actions with absolutely no significant effects. See 40 C.F.R. § 1508.13.
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`If an action may have a significant effect on the environment, or if there are substantial questions
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`as to whether it may, an EIS must be prepared. 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1502.3.
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`42.
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`NEPA requires that an agency “shall” supplement its environmental analysis
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`when the “agency makes substantial changes in the proposed action that are relevant to
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`environmental concerns” or “[t]here are significant new circumstances or information relevant to
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`environmental concerns and bearing on the proposed action or its impacts.” 40 C.F.R.
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`§ 1502.9(d)(1).
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`Clean Water Act
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`43.
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`Congress passed the Clean Water Act, 33 U.S.C. § 1251 et seq., “to restore and
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`maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C.
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`§ 1251(a). Congress added the National Estuary Program to the Act to identify “nationally
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`significant estuaries that are threatened by pollution, development, or overuse” and promote their
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`conservation and management because “maintaining the health and ecological integrity of these
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`estuaries is in the national interest.” 33 U.S.C. § 1330 note (1987) (Water Quality Act, Pub. L.
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`No. 100–4, §317(a), 101 Stat. 61).
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`44.
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`The Clean Water Act prohibits the discharge of dredged material into waters of
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`the United States unless the discharge complies with the requirements in Section 404 of the Act.
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`33 U.S.C. §§ 1311(a), 1344; see 33 C.F.R. § 336.1(a) (Section 404 of the Act “governs the
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`discharge of dredged or fill material into waters of the U.S.”).
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`45.
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`For federal dredging projects sponsored by the Corps and authorized by Congress,
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`the Corps does not need to issue itself a 404 permit if it demonstrates in an Environmental
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`Impact Statement submitted to Congress that the project will comply with the Section 404(b)(1)
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`Guidelines. 33 U.S.C. § 1344(r). The 404(b)(1) Guidelines are statutorily required regulations
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`that set the environmental criteria for evaluating and permitting discharges of dredged materials.
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`33 U.S.C. § 1344(b)(1).
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`46.
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`The 404(b)(1) Guidelines prohibit the discharge of dredged material “if there is a
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`practicable alternative to the proposed discharge which would have less adverse impact on the
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`aquatic ecosystem.” 40 C.F.R. § 230.10(a).
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`47.
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`The 404(b)(1) Guidelines mandate that “no discharge of dredged or fill material
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`shall be permitted which will cause or contribute to significant degradation of the waters of the
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`United States.” 40 C.F.R. § 230.10(c). Effects contributing to significant degradation include
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`adverse effects on human health or welfare; special aquatic sites; life stages of aquatic life and
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`other water dependent wildlife; aquatic ecosystem diversity, productivity, and stability; and
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`recreational, aesthetic, and economic values. Id.
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`48.
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`The Corps must make findings that any discharge complies with the 404(b)(1)
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`Guidelines while taking several factors into consideration, including suspension of particles and
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`contaminants; harm to threatened or endangered species; adverse effects on wildlife and prey;
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`smothering or other harm to seagrass beds and coral reefs; and impacts to fisheries, recreation,
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`and aesthetics. 40 C.F.R. Part 230.
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`49.
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`The 404(b)(1) Guidelines require the Corps to take steps to “minimize potential
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`adverse impacts of the discharge on the aquatic ecosystem,” 40 C.F.R.. § 230.10(d), including
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`inter alia, “locating and confining the discharge to minimize smothering of organisms,” id.
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`§ 230.70(a), containing the discharge to prevent sources of pollution, id. § 230.72(c), and
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`avoiding disposal sites with unique habitats. Id. § 230.75(c).
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`Endangered Species Act
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`50.
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`The ESA’s purpose is “to provide a means whereby the ecosystems upon which
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`endangered species and threatened species depend may be conserved, [and] to provide a program
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`for the conservation of such endangered species and threatened species.” 16 U.S.C. § 1531(b).
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`51.
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`Toward those goals, section 7(a)(2) requires that every federal agency “insure that
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`[its] action is . . . not likely to jeopardize the continued existence” of threatened or endangered
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`species or result in the destruction or adverse modification of their critical habitat. 16 U.S.C.
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`§ 1536(a)(2); 50 C.F.R. § 402.14.
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`52.
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`The term “endangered species” means any species which is in danger of
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`extinction throughout all or a significant portion of its range. 16 U.S.C. § 1532(6). The term
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`“threatened species” means any species which is likely to become an endangered species within
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`the foreseeable future throughout all or a significant portion of its range