Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 1 of 53
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`Karl G. Anuta (WSB No. 21346)
`Law Office of Karl G. Anuta, P.C.
`735 SW 1st Avenue, 2nd Floor
`Portland, OR 97204
`T: (503) 827-0320
`kga@integra.net
`Counsel for Plaintiff Coalition
`
`George A. Kimbrell (WSB No. 36050)
`Amy van Saun (pro hac vice)
`Center for Food Safety
`2009 NE Alberta Street, Suite 207
`Portland, OR 97211
`T: (971) 271-7372
`gkimbrell@centerforfoodsafety.org
`avansaun@centerforfoodsafety.org
`Counsel for Plaintiff CFS
`
`
`UNITED STATES DISTRICT COURT
`
`WESTERN DISTRICT OF WASHINGTON AT SEATTLE
`
`
`Case No. 2:21-cv-1685
`
`
`
`
`
`COMPLAINT
`
`
`(Environmental and Administrative
`Procedure Act Claims)
`
` COALITION TO PROTECT PUGET SOUND
`HABITAT, and CENTER FOR FOOD SAFETY,
`
`Plaintiffs,
`
`
`
`vs.
`
`
`U.S. ARMY CORPS OF ENGINEERS, an
`agency of the United States; LIEUTENANT
`GENERAL SCOTT A. SPELLMON, in his
`Official capacity as Chief of Engineers of the
`U.S. Army Corps of Engineers; COLONEL
`GEOFF VAN EPPS, in his Official Capacity as
`the Commander of the Northwestern Division of
`the U.S. Army Corps of Engineers; and
`COLONEL ALEXANDER L. BULLOCK, in his
`Official Capacity as Commander of the Seattle
`District of the U.S. Army Corps of Engineers,
`
`Defendants.
`
`COMPLAINT – 1
`Case No. 2:21-cv-1685
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`
`
`
`
`
`
`Law Office of Karl G. Anuta, P.C. Center for Food Safety
`735 SW 1st Ave., 2nd Floor
` 2009 NE Alberta St, Ste 207
`Portland, OR 97204
`
` Portland, OR 97211
`(503) 827-0320 (971) 271-7372
`
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`

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`Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 2 of 53
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`SUMMARY
`Washington state is home to unique and invaluable coastal ecosystems, which are
`1.
`unfortunately being threatened by the excessive expansion of industrial commercial shellfish
`aquaculture. This action presents as-applied and facial challenges to decisions of the United States
`Army Corps of Engineers (“the Corps”) authorizing commercial aquaculture operations in
`tidelands throughout Washington, including Puget Sound and Willapa Bay, under the 2021
`issuance of Nationwide Permit 48 (NWP 48) and through “Letters of Permission” (LOPs) under
`the Rivers and Harbors Act. These challenges are based on the Corps’ failure to comply with (1)
`the National Environmental Policy Act (NEPA); (2) the Clean Water Act (CWA); (3) the
`Endangered Species Act (ESA); (4) the Rivers and Harbors Act (RHA); and/or (5) the
`Administrative Procedure Act (APA), when authorizing such expansion.
`Defendants violated NEPA because they (1) improperly determined that activities
`2.
`authorized under NWP 48 would not significantly adversely affect the environment, and (2) failed
`to rest a Finding of No Significant Impact (FONSI) on an adequate Environmental Assessment,
`including a hard look at all direct, indirect, and cumulative impacts of shellfish aquaculture
`permitting—or alternatively to complete an Environmental Impact Statement (EIS) with proper
`NEPA analysis in it. Defendants violated the CWA in the issuance and administration of NWP 48
`by authorizing activities that result in more than minimal adverse environmental impacts and
`contribute to significant degradation of waters of the United States. Defendants violated RHA
`Section 10 and their own regulations by (1) failing to notify the public and provide opportunity to
`comment on LOPs, and (2) authorizing activities that result in more than minimal adverse
`environmental impacts. Defendants violated the ESA by failing to initiate consultation on 2021
`NWP 48 as required by Section 7. Defendants violated the APA by making arbitrary and
`capricious decisions not in accordance with the law.
`By initiating this action, Plaintiffs seek to:
`3.
`a) Obtain a declaration that the Corps violated (again) NEPA and its
`implementing regulations when it improperly found when issuing NWP 48 that
`
`COMPLAINT – 2
`Case No. 2:21-cv-1685
`
`
`
`
`
`
`
`Law Office of Karl G. Anuta, P.C. Center for Food Safety
`735 SW 1st Ave., 2nd Floor
` 2009 NE Alberta St, Ste 207
`Portland, OR 97204
`
` Portland, OR 97211
`(503) 827-0320 (971) 271-7372
`
`

`

`Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 3 of 53
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`activities in Puget Sound authorized under NWP 48 would not significantly
`adversely affect the environment, and decided not to prepare an EIS;
`b) Obtain a declaration that the Corps (again) violated the CWA and its
`implementing regulations when it issued NWP 48;
`c) Obtain a declaration that the Corps (again) violated the CWA and its
`implementing regulations when it failed to take required actions to ensure that
`activities authorized under NWP 48 would not have more than minimal adverse
`impacts on the environment or significantly degrade waters of the United States;
`d) Obtain a declaration that the Corps violated the CWA and RHA, including its
`own regulations, when it issued hundreds of LOPs to commercial shellfish
`activities previously authorized under NWP 48, despite those activities’ potentially
`significant individual or cumulative impacts on environmental values, and when
`the Corps knew or should have known that those activities would have
`encountered appreciable opposition;
`e) Obtain a declaration that the Corps violated the ESA and its implementing
`regulations when it issued NWP 48;
` Obtain an order vacating, setting aside, and/or remanding the Corps’ (1)
`f)
`authorizations of activities under NWP 48 since the 2021 issuance of that permit;
`and (2) the LOPs for projects previously authorized under NWP 48;
`g) Obtain an order enjoining the Corps from issuing any further authorizations
`under NWP 48 in Washington, and any further LOPs for projects previously
`authorized under NWP 48, until the Corps complies with NEPA by producing a
`new supplemental document; and/or complies with the ESA by completing
`consultation; and/or complies with the CWA by completing adequate effects
`analyses, to ensure that authorized activities will have minimal effects on the
`environment and comply with 33 U.S.C. § 1344(b)(1) and the regulations adopted
`under that law; and/or the RHA and the regulations for issuance of LOPs.
`
`COMPLAINT – 3
`Case No. 2:21-cv-1685
`
`
`
`
`
`
`
`Law Office of Karl G. Anuta, P.C. Center for Food Safety
`735 SW 1st Ave., 2nd Floor
` 2009 NE Alberta St, Ste 207
`Portland, OR 97204
`
` Portland, OR 97211
`(503) 827-0320 (971) 271-7372
`
`

`

`Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 4 of 53
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`JURISDICTION
`Jurisdiction is proper in this Court pursuant to 28 U.S.C. §§ 1331 (federal
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`question); § 1346(a)(2) (civil action against the United States); § 1361 (action to compel officer of
`the United States to perform his or her duty); § 2201 (authorizing declaratory relief); and § 2202
`(authorizing injunctive relief and any other “necessary and proper relief”), and 5 U.S.C. § 702
`(judicial review of agency action under the APA). This action arises under the laws of the United
`States, including the APA, 5 U.S.C. §§ 701–706; NEPA, 42 U.S.C. §§ 4321–4370m; ESA, 16
`U.S.C. §§ 1531–44; RHA, 33 U.S.C. § 403; and CWA, 33 U.S.C. § 1244. An actual, justiciable
`controversy exists between Plaintiff and Defendants. The requested relief is proper under 28
`U.S.C. §§ 2201 (declaratory relief) and § 2202 (injunctive relief), and 5 U.S.C. §§ 705 and § 706.
`VENUE
`Venue is proper in this Court pursuant to 28 U.S.C. § 1391(e). A substantial part of
`5.
`the events or omissions giving rise to the claims occurred within this District. The Seattle District
`of the U.S. Army Corps is the responsible for substantial portions of the actions and omissions
`giving rise to this case, and it is also located in within this District, in Seattle, King County,
`Washington. In addition, Plaintiffs have several members who reside in this District.
`PARTIES
`Plaintiff Coalition to Protect Puget Sound Habitat (“Coalition”) is a non-profit
`6.
`organization incorporated under the laws of the state of Washington. The Coalition is an alliance
`of interested citizens, environmentalists, scientists, and recreational users who reside on or near
`Puget Sound, and study, work to protect and recreate in the waters of Puget Sound. The
`Coalition’s mission is to protect the habitat of Puget Sound tidelands from the expansion of new
`intensive shellfish aquaculture methods and practice. The Coalition and its members are directly
`affected by the expansion of industrial aquaculture operations in both the coastal and nearshore
`areas of Puget Sound, and its impact on plants, animals, and ecological function. The expansion
`of these operations directly impairs the Coalition and its members’ personal, recreational, and
`aesthetic enjoyment of tidelands near their homes and other parts of Puget Sound. The Coalition
`
`COMPLAINT – 4
`Case No. 2:21-cv-1685
`
`
`
`
`
`
`
`Law Office of Karl G. Anuta, P.C. Center for Food Safety
`735 SW 1st Ave., 2nd Floor
` 2009 NE Alberta St, Ste 207
`Portland, OR 97204
`
` Portland, OR 97211
`(503) 827-0320 (971) 271-7372
`
`

`

`Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 5 of 53
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`and its members have repeatedly submitted comments raising these concerns to the Corps and/or
`other agencies before the Corps’ issuance of the 2012 NWP 48, the 2017 NWP 48, the 2021 NWP
`48, and the individual authorizations and/or LOPs at issue in this case. In addition, the Coalition
`previously brought a successful suit against the Corps for improper issuance of the 2017 NWP 48,
`challenging some of the same conduct at issue in this case, and obtained a favorable ruling on the
`merits and on remedy. The Coalition then successfully defended those rulings on appeal at the
`Ninth Circuit.
`The Coalition seeks to give a voice to citizens’ concerns about aquaculture and its
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`impact on the health and quality of the shoreline and waters of Puget Sound, as well as the flora
`and fauna that depend upon these irreplaceable resources. Members of the Coalition live in and/or
`use Puget Sound and are and will be directly and adversely affected by the rapid and massive
`expansion of the aquaculture industry of the type at issue under NWP 48 and under the new LOPs
`for previous NWP 48 projects. This type of expansion can potentially undermine the protection
`and enhancement of the quality of the waters of Puget Sound, as well as the many plant and
`marine species that depend upon those waters for food and habitat. As such, the industrialization
`of aquaculture that is being allowed by the Seattle District of the Corps interferes with the ability
`of the plaintiff’s members to enjoy and recreate in the waters of the Sound.
`The Coalition has representational standing to bring this action. The Defendants’
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`violations of the CWA, RHA, APA and NEPA have had an adverse impact on Plaintiff’s
`members’ ability to use and enjoy the waters of Puget Sound, and the Defendants’ actions have
`injured the health, recreational, environmental, aesthetic, commercial and/or other interests of
`Plaintiff’s members. These injuries are fairly traceable to the Defendants’ violations and are
`capable of redress by this Court.
`The Coalition also has organizational standing to bring this action. Plaintiff has
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`long been engaged in a variety of educational and advocacy efforts to call attention to and
`challenge the dramatic expansion of the commercial shellfish industry in Puget Sound, so as to try
`to improve water quality and ecological function in its waters. This has included filing of a
`
`COMPLAINT – 5
`Case No. 2:21-cv-1685
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`
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`
`
`
`
`Law Office of Karl G. Anuta, P.C. Center for Food Safety
`735 SW 1st Ave., 2nd Floor
` 2009 NE Alberta St, Ste 207
`Portland, OR 97204
`
` Portland, OR 97211
`(503) 827-0320 (971) 271-7372
`
`

`

`Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 6 of 53
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`Petition with the Corps in May 2015 to suspend or revoke NWP 48, which the Corps ignored. The
`Coalition then successfully sued the Corps to overturn the previous NWP 48 and its
`authorizations. The Defendants’ failures to comply with the requirements of the law, and the prior
`rulings of this court, have or will adversely affect Plaintiff’s abilities to fulfill its mission and
`purpose, and these injuries are fairly traceable to Defendants’ violations. These injuries are also
`capable of redress by this Court.
`Plaintiff Center for Food Safety (“CFS”) is a public interest nonprofit
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`organization whose mission is to empower people, support farmers, and protect the earth from the
`adverse impacts of industrial food production, including the adverse environmental and wildlife
`impacts of industrial shellfish operations. CFS has more than one million members across the
`country, including tens of thousands of members in Washington State. CFS has offices in
`Portland, Oregon; San Francisco, California; and Washington, D.C. CFS is a nationally
`recognized leader on the issue of industrial agriculture and its impacts to public health and the
`environment. Through science-based regulatory advocacy, public engagement, and
`groundbreaking litigation, CFS protects its members and the public from the harmful effects of
`industrial agriculture and promotes transparency and accountability in the food system. CFS also
`acts as a watchdog of the federal agencies tasked with regulating different aspects of food
`production, such as the Corps, which is the only federal agency with permitting authority over
`industrial shellfish operations. If necessary, CFS utilizes public education, public notice and
`comment, regulatory action, and litigation to ensure that federal agencies comply with their
`statutory mandates and other federal laws designed to prevent and reduce the harmful impacts of
`industrial agriculture.
`CFS has long had an aquaculture program, including numerous policy, scientific,
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`and legal staff, dedicated to addressing the adverse environmental and public health impacts of
`industrial aquaculture. CFS strives to improve oversight and regulation of aquaculture operations
`by promoting policy and cultural dialogue between regulatory agencies, policymakers, and
`legislators and affected groups, including residents, consumers, chefs, and environmental
`
`COMPLAINT – 6
`Case No. 2:21-cv-1685
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`
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`
`
`
`Law Office of Karl G. Anuta, P.C. Center for Food Safety
`735 SW 1st Ave., 2nd Floor
` 2009 NE Alberta St, Ste 207
`Portland, OR 97204
`
` Portland, OR 97211
`(503) 827-0320 (971) 271-7372
`
`

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`Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 7 of 53
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`advocates, to protect public health and the environment from industrial aquaculture, including
`specifically shellfish aquaculture, and to promote and protect more sustainable alternatives.
`Specifically, regarding the challenged action, in 2017, CFS actively engaged with
`12.
`the Corps on the proposed reissuance of NWP 48, including the submission of several comments
`urging the Corps to forgo adopting NWP 48, at least in its current form, and to protect the unique
`and essential aquatic ecosystems and shorelines in Washington. When the Corps issued 2017
`NWP 48, CFS brought a lawsuit in this Court challenging the Corps’ compliance with the CWA,
`NEPA, ESA, and the APA. Coal. to Protect Puget Sound Habitat v. U.S. Army Corps of Eng’rs,
`417 F. Supp. 3d 1354 (W.D. Wash. 2019). This Court vacated that permit and remanded to the
`Corps to comply with the CWA and NEPA, 466 F. Supp. 3d 1217 (W.D. Wash. 2020), and the
`Ninth Circuit affirmed. 843 F. App’x 77 (9th Cir. 2021). When the Corps first announced that it
`planned to reissue the NWP 48 in September 2020, CFS commented on the draft permit and again
`urged the Corps to follow CWA, NEPA, and the ESA, as well as this Court’s order. See
`Comments Submitted on Proposal to Reissue and Modify Nationwide Permits, COE-2020-0002
`(Nov. 16, 2020).
`CFS has representation and organizational standing. CFS has thousands of
`13.
`members who live, work, and recreate in areas affected by commercial shellfish aquaculture in
`Washington, including Willapa Bay and Puget Sound. Specifically, these members’ personal,
`economic, recreational, aesthetic, property, and other interests are harmed by the unchecked
`expansion of industrial shellfish activities in Washington’s tidelands, including the use of
`pesticides and plastics, and the conversion of shorelines and native vegetation to commercial
`shellfish growing beds and other aquaculture operations. In addition, CFS has long worked to
`prevent and reduce the harmful impacts of aquaculture. Because the Corps continues to fail to
`comply with federal law and judicial orders, CFS must divert substantial organizational resources
`that would have otherwise been used to improve other aspects of aquaculture, such as offshore
`and state finfish farming, to bring costly, resource-intensive regulatory and legal challenges
`against the Corps.
`
`COMPLAINT – 7
`Case No. 2:21-cv-1685
`
`
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`
`
`
`
`Law Office of Karl G. Anuta, P.C. Center for Food Safety
`735 SW 1st Ave., 2nd Floor
` 2009 NE Alberta St, Ste 207
`Portland, OR 97204
`
` Portland, OR 97211
`(503) 827-0320 (971) 271-7372
`
`

`

`Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 8 of 53
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`Defendant United Sates Army Corps of Engineers is an agency of the U.S.
`14.
`Department of Defense. The Corps has a District Office in Seattle, Washington. The Corps and its
`officers are responsible for the lawful execution of the CWA, NEPA, and the APA, as they
`pertain to dredge and fill activities of commercial shellfish aquaculture in coastal waters.
`Defendant Lieutenant General Scott A. Spellmon is the Commanding General
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`and Chief of Engineers of the Corps. Lieutenant General Spellmon is named as a defendant solely
`in his official capacity. The Commanding General and Chief of Engineers is charged with
`supervising and managing all Corps’ decisions and actions, including the evaluation of Corps’
`decisions and actions under NEPA and section 404 of the CWA. The Chief of Engineers is
`authorized to issue NWPs and charged with reviewing NWPs and proposing modifications,
`revocations, and reissuance, as well as preparing NEPA documents and Section 404(b)(1)
`Guidelines compliance analyses for proposed NWPs.
`Defendant Colonel Geoff Van Epps is the Commander and Division Engineer of
`16.
`the Northwestern Division of the Corps, which includes the Seattle District. Colonel Van Epps is
`named as a defendant solely in his official capacity. Division engineers are authorized to modify,
`suspend, or revoke NWP authorizations within their divisions, and are responsible for preparing
`supplemental documentation for modifications or revocations made as a result of their authority.
`Division engineers are also responsible for imposing regional conditions on NWPs at their
`discretion, and to prepare supplemental documentation for modifications or revocations made as a
`result of their authority. The Northwestern Division is responsible for a substantial portion of the
`actions or omissions at issue in this lawsuit, including regional effects analysis and determination
`that NWP 48, as well as the terms and conditions, all regional conditions, and limitations, and the
`finding that NWP 48 allegedly would (or would not) have only minimal and not significant
`effects on the aquatic environment here.
`Defendant Colonel Alexander L. Bullock is the Commander of the Seattle
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`District of the Corps. Colonel Bullock is named as a defendant solely in his official capacity.
`Under Corps regulations, district commanders are responsible for compliance with NEPA for
`
`COMPLAINT – 8
`Case No. 2:21-cv-1685
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`
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`Law Office of Karl G. Anuta, P.C. Center for Food Safety
`735 SW 1st Ave., 2nd Floor
` 2009 NE Alberta St, Ste 207
`Portland, OR 97204
`
` Portland, OR 97211
`(503) 827-0320 (971) 271-7372
`
`

`

`Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 9 of 53
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`I.
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`actions within district boundaries, and CWA § 404 permitting. The Seattle District is responsible
`for a substantial portion of the actions or omissions at issue in this lawsuit, including, but not
`limited to, the issuance of regional conditions for NWP 48 and supplemental analysis and findings
`in support of those conditions. The Seattle District Engineer is authorized to add, modify, or
`delete special conditions in permits, and to modify, suspend and revoke permits, such as regional
`permits or authorizations under NWP 48.
`LEGAL BACKGROUND
`ADMINISTRATIVE PROCEDURE ACT
`The APA authorizes any person who has been adversely affected by an agency
`18.
`action to seek judicial review of the action. 5 U.S.C. § 702. The APA provides a cause of action
`to challenge agency actions “made reviewable by statute,” or final actions “for which there is no
`other adequate remedy in a court.” Id. § 704. In addition, the APA provides standards for judicial
`review of agency action. The APA directs reviewing courts to “compel agency action [that is]
`unlawfully withheld or unreasonably delayed.” Id. § 706(1). The APA also directs courts to “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.” Id. § 706(1)(A).
`The APA provides a cause of action for challenging the Corps’ actions under
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`NEPA; section 404 of the CWA, 33 U.S.C. § 1344; and section 10 of the RHA, 33 U.S.C. § 403
`because “there is no other adequate remedy in a court” with respect to these actions. As a result,
`Plaintiffs’ claims arising under NEPA, the CWA, and the RHA are reviewable under the APA.
`CLEAN WATER ACT
`II.
`The purpose of the CWA is “to restore and maintain the chemical, physical, and
`20.
`biological integrity of the Nation’s waters.” 33 U.S.C. § 1251. To achieve this objective, section
`404 of the CWA establishes a program for regulating the discharge of dredge or fill material into
`waters of the United States, including wetlands. Id. § 1344. Section 404 requires a permit for
`discharges of dredged or fill material into waters of the United States. Section 404 authorizes the
`Secretary of the Corps, acting through the Chief of Engineers, to issue permits for the discharge
`
`COMPLAINT – 9
`Case No. 2:21-cv-1685
`
`
`
`
`
`
`
`Law Office of Karl G. Anuta, P.C. Center for Food Safety
`735 SW 1st Ave., 2nd Floor
` 2009 NE Alberta St, Ste 207
`Portland, OR 97204
`
` Portland, OR 97211
`(503) 827-0320 (971) 271-7372
`
`

`

`Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 10 of 53
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`of dredged or fill material into waters of the United States when certain conditions are met.
`Concurrent regulatory authority exists under section 10 of the RHA, 33 U.S.C. § 403.
`Under this program, the Corps must issue individual permits for proposed
`21.
`activities with potentially significant impacts. The Corps can issue a general permit for an entire
`category of activities on a regional or nationwide basis “if the Secretary determines that the
`activities in such category are similar in nature, will cause only minimal adverse environmental
`effects when performed separately, and will have only minimal cumulative adverse effect on the
`environment.” Id. § 1344(e)(1); see also 40 CFR § 230.7. A nationwide permit (NWP) is a
`general permit that authorizes specific activities across the country, unless a district or division
`commander revokes the NWP in a state or other geographic region. See 33 CFR § 330.1. If a
`proposed activity falls under an existing NWP, an applicant may request authorization under the
`existing NWP rather than applying for an individual permit. Id. §§ 320.1(a)(3), § 330.6(a).
`Before issuing any NWPs, the Corps must conduct analyses of compliance with
`22.
`Section 404(b)(1) Guidelines and prepare a statement of findings. See 40 CFR § 230.7(b). The
`Corps must deny a permit that does not comply with those Guidelines.
`Under Section 404(b)(1) Guidelines, developed in conjunction with the Secretary
`23.
`of the Army and published in 40 CFR § 230, cumulative impacts include “the changes in an
`aquatic ecosystem that are attributable to the collective effect of a number of individual
`discharges of dredged or fill material.” Section 404(b)(1) Guidelines require the Corps to predict
`cumulative effects by evaluating the number of individual discharges that already exist, and “the
`number of individual discharge activities likely to be regulated under a General permit until its
`expiration, including repetitions of individual discharge activities at a single location.”
`Section 404(b)(1) Guidelines prohibit the Corps from issuing a permit or NWP
`24.
`authorization if the discharge will cause or contribute to significant degradation of the waters of
`the United States. “Significant degradation” includes significantly adverse effects on fish,
`shellfish, wildlife, and special aquatic sites, as well as the life stages of aquatic life, and the
`diversity, productivity, and stability of aquatic ecosystems.
`
`COMPLAINT – 10
`Case No. 2:21-cv-1685
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`Law Office of Karl G. Anuta, P.C. Center for Food Safety
`735 SW 1st Ave., 2nd Floor
` 2009 NE Alberta St, Ste 207
`Portland, OR 97204
`
` Portland, OR 97211
`(503) 827-0320 (971) 271-7372
`
`

`

`Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 11 of 53
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`Section 404(b)(1) Guidelines, specifically 40 C.F.R. § 230.12(a)(3), prohibit the
`25.
`Corps from issuing a permit or an NWP authorization if:
`a) There is a practicable alternative to the proposed discharge that would have
`less adverse effect on the aquatic ecosystem, so long as such alternative does
`not have other significant adverse environmental consequences; or
`b) The proposed discharge will result in significant degradation of the aquatic
`ecosystem; or
`c) The proposed discharge does not include all appropriate and practicable
`measures to minimize potential harm to the aquatic ecosystem; or
`d) There does not exist sufficient information to make a reasonable judgment as
`to whether the proposed discharge will comply with the Guidelines.
`In addition, the Corps’ own “public interest review” rules prohibit the issuance of a
`26.
`Section 404 permit or an NWP authorization if it would be contrary to the public interest. 33
`C.F.R. § 320.4. In evaluating this issue, the Corps must weigh the benefits of a proposed project
`against its reasonably foreseeable detriments, considering all relevant factors and their cumulative
`impacts. Relevant factors include conservation, general environmental concerns, fish and wildlife
`values, water quality, and the general needs and welfare of the people.
`Under Corps regulations, a division engineer may modify, suspend, or revoke a
`27.
`NWP authorization by geographic area, class of activity, or class of waters within their division to
`address effects of authorized activities under Section 404(b)(1) Guidelines or any factor of the
`public interest or that otherwise may be more than minimal. Some NWPs, including NWP 48,
`require pre-construction notification (PCN) or application to the district engineer prior to
`undertaking covered activities.
`Upon receipt of a PCN or application, the district engineer must determine whether
`28.
`the activity will result in more than minimal individual or cumulative adverse environmental
`effects or may be contrary to the public interest. A district engineer must perform a case-by-case
`review of each PCN or application submitted under an NWP to make these determinations. In
`
`COMPLAINT – 11
`Case No. 2:21-cv-1685
`
`
`
`
`
`
`
`Law Office of Karl G. Anuta, P.C. Center for Food Safety
`735 SW 1st Ave., 2nd Floor
` 2009 NE Alberta St, Ste 207
`Portland, OR 97204
`
` Portland, OR 97211
`(503) 827-0320 (971) 271-7372
`
`

`

`Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 12 of 53
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`doing so, the district engineer must consider the environmental setting, the resources affected, the
`functions of affected resources, the degree to which resources perform those functions, the extent
`of loss of aquatic resource functions, the duration of adverse effects, the importance of lost
`aquatic resource functions, and required mitigation.
`29. When determining appropriate mitigation, a district engineer must consider its
`adequacy to ensure that adverse environmental effects are minimized. If a district engineer
`reviewing a PCN or application finds that a proposed activity would have more than minimal
`individual or cumulative adverse effects or is otherwise contrary to the public interest, the district
`engineer must either modify the NWP authorization to reduce or eliminate such effects or instruct
`the permittee to apply for a regional general permit (if one exists) or individual permit.
`III. RIVERS AND HARBORS ACT
`Under Section 10 of the RHA, 33 U.S.C. § 403, a Corps permit is required for
`30.
`work or structures affecting navigable waters of the United States.
`Under Corps regulations, specifically 33 C.F.R. § 320.2(b) and § 322, “[t]he
`31.
`construction of any structure in or over any navigable water of the United States, the excavating
`from or depositing of material in such waters, or the accomplishment of any other work affecting
`the course, location, condition, or capacity of such waters is unlawful unless the work has been
`recommended by the Chief of Engineers and authorized by the Secretary of the Army.”
`In cases where the district engineer determines that the proposed work or structure
`32.
`“would be minor, would not have significant individual or cumulative impacts on environmental
`values, and should encounter no appreciable opposition,” the Corps may issue a letter of
`permission (or LOP) “through an abbreviated processing procedure which includes coordination
`with Federal and state fish and wildlife agencies, as required by the Fish and Wildlife
`Coordination Act, and a public interest evaluation, but without the publishing of an individual
`public notice.” 33 C.F.R. § 325.2(e).
`IV. NATIONAL ENVIRONMENTAL POLICY ACT
`Pursuant to 42 U.S.C. §§ 4321–4370m, NEPA is our basic national charter for
`33.
`
`COMPLAINT – 12
`Case No. 2:21-cv-1685
`
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`
`
`
`
`Law Office of Karl G. Anuta, P.C. Center for Food Safety
`735 SW 1st Ave., 2nd Floor
` 2009 NE Alberta St, Ste 207
`Portland, OR 97204
`
` Portland, OR 97211
`(503) 827-0320 (971) 271-7372
`
`

`

`Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 13 of 53
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`protection of the environment. Regulations promulgated by the C