National Wildlife Federation v. United States Army Corps of Engineers

Opinion by Judge GOULD; Dissent by Judge McKEOWN

We must decide whether the United States Army Corps of Engineers (Corps) has met its obligation to comply with state water quality standards, as required by the Clean Water Act. Appellants National Wildlife Federation, Sierra Club, Idaho Rivers United, Inc., American Rivers, Pacific Coast Federation of Fishermen’s Associations, Institute for Fisheries Resources, Washington Wildlife Federation, and Idaho Wildlife Federation (collectively referred to as “NWF”) filed suit in the United States District Court for the District of Oregon, claiming that the Corps’s issuance of a May 2001 “Record of Consultation and Statement of Decision” (2001 ROD), regarding the Corps’s operation of four dams on the lower Snake River in the State of Washington, was arbitrary and capricious and contrary to law in violation of the Administrative Procedure Act (APA). The lawsuit claimed that the Corps had violated the APA because the 2001 ROD did not address properly the Corps’s obligations to comply with the State of Washington’s water quality standards for temperature, as required by the Clean Water Act’s incorporation of state water quality law. The…

dissenting:

Once the majority frames this case as a choice between compliance with the Clean Water Act (“CWA”) and tearing down the dams along the Snake and Columbia Rivers, the question answers itself. The trouble is that this formulation misstates the actual legal issue: whether evidence in the record supports the United States Army Corps of Engineers’ (“Corps”) decision that the sole cause of temperature excee-dences is the existence — and not operation — of the dams, and that, therefore, the *1181 Corps bears no obligation to comply with the CWA.

Even talking about removal of the dams is a lightning rod that we need not strike. Compliance with the CWA and the continued presence of the dams are not mutually exclusive options. But, in an effort to sidestep the CWA, the Corps hides behind removal of the dams and simply defaults on the real issue — compliance with water quality standards. Because the record is devoid of evidence addressing operational alternatives aimed at CWA compliance, the Corps’ decision does not comply with the Administrative Procedure Act (“APA”). I respectfully dissent because, in my view, the Corps’ failure to tackle the CWA issue head-on requires…