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City Club of New York v. United States Army Corps of Engineers

United States District Court, S.D. New York

March 23, 2017

THE CITY CLUB OF NEW YORK, et al., Plaintiffs,
v.
UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants.

          OPINION AND ORDER

          LORNA G. SCHOFIELD, UNITED STATE DISTRICT JUDGE.

         Plaintiffs The City Club of New York, Robert Buchanan and Tom Fox (collectively, “Plaintiffs”) move for summary judgment on their claims that Defendant United States Army Corps of Engineers (“USACE” or “Corps”) violated the Clean Water Act (“CWA”), 33 U.S.C. § 1251 et seq., and the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., by approving a permit modification authorizing the construction of a pier in the Hudson River that would serve as a park and performance space (the “Permit”). Defendants USACE, David A. Caldwell, Hudson River Park Trust (“Trust”) and PIER55, INC. (collectively, “Defendants”) oppose Plaintiffs' motion and cross-move for summary judgment. For the following reasons, Plaintiffs' motion is granted and Defendants' motion is denied.

          I. BACKGROUND

         the following facts are taken from the certified administrative record in this case.

         In 1998, the New York State Legislature passed the Hudson River Park Act, which created the Hudson River Park (“Park”), an approximately five-mile long park along the Hudson River. See N.Y. Unconsol. Law §§ 1646(a)-(c), 1648. The Park consists of waterfront property, the Hudson River itself, landfill and a number of usable and unusable piers between Battery Park City and 59th Street. See Id. § 1643(e). The Act also designated the area of the Hudson River within the Park as the Hudson River Park Estuarine Sanctuary (“Estuarine Sanctuary”). See Id. § 1648(1). The Estuarine Sanctuary is managed to provide for (1) conservation of the area's marine resources, (2) “environmental education and research, ” (3) public recreational use of the water, (4) authorized commercial maritime uses and (5) other water dependent uses permitted by the Act. Id. § 1648(2).

         Defendant Trust is a public benefit corporation charged with developing and administering the Park. See Id. §§ 1645(1), 1646. In February 2015, the Trust filed an application with Defendant USACE seeking permission to pour approximately 411 square feet of flowable concrete into tubular piles placed in the Hudson River in order to create a new pier near the site of the now-defunct Pier 54.

         The proposed pier, Pier 55, would be an approximately 2.75-acre elevated structure consisting of green space and performance venues for the purpose of enhancing the public's enjoyment of the Hudson River. Pier 55 would provide a replacement for the functions served by Pier 54, which was the most frequently programmed pier in the Park, and which frequently hosted movies and concerts for thousands of attendees. Pier 55 would have three performance spaces, accommodating several thousand people. The Trust intends that Pier 55 would provide a diversity of performance environments and create spaces for both relaxation and cultural events.

         After receiving the Trust's request for a permit modification to construct Pier 55, the Corps published notice of the proposed project and accepted public comments. Plaintiffs submitted comments opposing the construction of Pier 55, including a comment urging the Corps to subject the proposal to greater scrutiny because it would be located in a “special aquatic site.” In response, the Corps stated that the Estuarine Sanctuary is not a special aquatic site within the meaning of Environmental Protection Agency (“EPA”) regulations because it is designed to serve four park purposes rather than being “managed principally for the preservation and use of fish and wildlife resources.”

          The Corps also undertook an environmental analysis of the Pier 55 proposal. In its resulting Environmental Assessment, 404(b)(1) Guidelines Evaluation and Statement of Findings for the Permit (“Statement of Findings”), the Corps provides three statements of purpose for the project. First, the Corps notes that the Trust's stated purpose for Pier 55 is to “utilize the Hudson River waterfront for the public benefit by reestablishing public access and providing additional public open space resources and cultural space within the Hudson River State Park . . . .” Second, the Corps provides its own definition of the project's basic purpose, which it determines to be “provid[ing] a vegetated pier platform within Hudson River State Park with an amphitheater and public restrooms; and to continue to provide safe public access pier structures within Hudson River State Park.” Third, the Corps defines the project's overall purpose as “reconstruct[ing] a deteriorated pier in a nearby location with a different, more environmentally beneficial structure . . . to provide open space parkland to allow for educational opportunities and low-cost entertainment to the public.”

         Based on the project's basic purpose, the Corps determined that Pier 55 is water dependent, i.e., “it requires access to or siting in water.” Based on its water dependency determination and the project's overall purpose, the agency evaluated six alternatives to the Trust's proposal. Each alternative involves the construction of a pier in or near the proposed location of Pier 55. Ultimately, the Corps determined that these six alternatives were “not practicable based on considerations of cost, existing technology, and logistics in light of overall project purposes.” On April 25, 2016, USACE issued the Permit. Plaintiffs timely appealed the Corps' decision to this Court.

         II. STANDARD OF REVIEW

         Summary judgment is generally appropriate where the record before the court establishes that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Where, as here, “a court is called upon to review agency action under the [APA], the question presented is a legal one which the district court can resolve on the agency record on a motion for summary judgment.” Cty. of Westchester v. U.S. Dep't of Hous. & Urban Dev., 116 F.Supp.3d 251, 275-76 (S.D.N.Y. 2015), aff'd, 802 F.3d 413 (2d Cir. 2015) (quoting Univ. Med. Ctr. of S. Nevada v. Shalala, 173 F.3d 438, 440 n.3 (D.C. Cir. 1999)) (internal quotation marks and ellipses omitted).

         “In reviewing the validity of a decision by the Corps to issue a permit under the [CWA], a court should, as provided by the [APA], uphold the decision unless it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'” Sierra Club v. U.S. Army Corps of Eng'rs, 701 F.2d 1011, 1032 (2d Cir. 1983) (quoting 5 U.S.C. § 706(2)(A)). To determine whether an agency has violated this standard, a court considers whether the agency “relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Nat. Res. Def Council v. EPA, 808 F.3d 556, 569 (2d Cir. 2015) (citation omitted). The scope of review under this standard is narrow, and a court may not substitute its judgment for that of the agency. See, e.g., Cty. of Westchester v. U.S. Dep't of Hous. & Urban Dev., 802 F.3d 413, 430-31 (2d Cir. 2015).

         Although “highly deferential, ” the APA's standard of review “does not equate to no review.” Brodsky v. U.S. Nuclear Regulatory Comm'n , 704 F.3d 113, 119 (2d Cir. 2013). The court must be “satisfied from the record that the agency examined the relevant data and articulated a satisfactory explanation for its action.” Nat. Res. Def. Council, 808 F.3d at 569 (citation and ellipses omitted). An agency's action is lawful “only if it rests on a consideration of the relevant factors, ” Michigan v. EPA, 135 S.Ct. 2699, 2706 (2015) (internal quotation marks omitted), and “reveal[s] a rational connection between the facts found and the choice made.” Brodsky, 704 F.3d at 119 (citation omitted). Courts afford an agency's decision “greater deference regarding factual questions involving scientific matters in its area of technical expertise.” Nat. Res. Def. Council, 808 F.3d at 569; see also, e.g., Gonzalez v. Oregon, 546 U.S. 243, 257 (2006) (agency interpretation of regulation not entitled to same level of deference when agency paraphrases statutory language rather than relying upon its own expertise).

         III. DISCUSSION

         Plaintiffs argue that USACE violated the CWA and APA by unlawfully (1) defining the project's basic purpose too narrowly, (2) determining that Pier 55 is a water dependent project, (3) constraining its analysis of project alternatives and (4) determining that Pier 55 is in the public interest. For the reasons explained below, USACE violated the CWA and APA by defining the project's basic purpose too narrowly and by relying upon that unlawful basic purpose to determine that the proposed action is water dependent. As these failures are dispositive, the remainder of Plaintiffs' claims are not addressed.

         A. Section 404 Permits Under the Clean Water Act

         The CWA “prohibits the discharge of any pollutant, including dredged or fill materials, into the nation's navigable waters, except in compliance with the [CWA's] provisions Bersani v. EPA, 850 F.2d 36, 39 (2d Cir. 1988); accord 33 U.S.C. § 1311(a). Neither party disputes that the Hudson River is a “navigable water” or that the Trust's Pier 55 proposal would involve the discharge of dredged or fill materials.

         Section 404(a) of the CWA authorizes the Secretary of the Army, acting through the Corps, to issue permits for the discharge of dredged or fill material into navigable waters “after notice and opportunity for public hearings.” 33 U.S.C. § 1344(a). In making permitting decisions, the Corps must follow a set of guidelines developed by EPA in conjunction with the Secretary of the Army (the “404(b)(1) Guidelines” or “Guidelines”). See Id. § 1344(b); Bersani, 850 F.2d at 39. These Guidelines prohibit the Corps from granting a Section 404 permit “if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences.” 40 C.F.R. § 230.10(a). The Corps' own regulations further require the Corps to conduct a public interest review for ...


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