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Lakes v. United States Army Corps of Engineers

United States District Court, D. Maine

February 20, 2015

PROTECT OUR LAKES, et al., Plaintiffs,
v.
UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants.

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

JON D. LEVY, District Judge.

I. INTRODUCTION

This case surrounds the construction of a large wind farm in Aroostook and Penobscot counties (the "Oakfield Project"). Before building the project, Evergreen Wind Power II, LLC and Maine Genlead, LLC (collectively, "Evergreen") applied for a permit pursuant to § 404 of the Clean Water Act, 33 U.S.C.A. § 1251 et seq. (the "§ 404 permit"). In May 2013, the United States Army Corps of Engineers ("Corps") granted Evergreen the § 404 permit, authorizing it to permanently and temporarily fill certain wetlands and streams during construction of the Oakfield Project.

The plaintiffs in this action, Protect Our Lakes, the Forest Ecology Network, Donna Davidge, Peter Connelly, Gail Sewall Kennett, Cheryl Connelly, and Candace Rupley (collectively, "plaintiffs") are either individuals who live, work, recreate, or own property in the vicinity of the Oakfield Project, or environmental organizations whose members do the same. ECF No. 1 at 4-6. In October 2013, they filed their complaint against the Corps, Lieutenant General Thomas P. Bostick, the Department of the Interior, Secretary of the Interior Sally Jewell, and Corps project manager Leeann Neal (collectively, "federal defendants") alleging that the § 404 permitting decision violated several environmental statutes. ECF No. 1. The complaint seeks to vacate the permit. Id. at 14. This court granted Evergreen's motion to intervene in the case, ECF No. 12, and the parties have filed cross-motions for summary judgment, ECF No. 14; ECF No. 16; ECF No. 17. For the reasons discussed below, I grant the defendants' motions.

II. FACTUAL BACKGROUND

Because this case involves a challenge to a final administrative action, my review is limited to the administrative record. See 5 U.S.C.A. § 706; Camp v. Pitts, 411 U.S. 138, 142-43 (1973). I therefore make no findings of fact. However, I highlight portions of the record below.

The Oakfield Project, which expands upon an earlier proposal that was permitted but never built, is located in both Aroostook and Penobscot counties. R. 1: 174. It includes 50 wind turbines and an electric substation in the towns of Oakfield and T4R3 WELS, as well as 59 miles of 115 kilovolt power transmission line that traverses 12 different towns and townships. Id. The footprint of the project impacts several wildlife habitats, including those of the Atlantic salmon and the bald eagle. R. 1:186-189.

In June 2011, Evergreen applied to the Maine Department of Environmental Protection ("MDEP") for approval of the Oakfield Project. R 3:14. MDEP issued its approval in January 2012. R. 1:91-154. The approval considered potential impacts to bald eagles, Atlantic salmon, and other species, and determined that the project would not unreasonably harm wildlife or fisheries. R. 1:116-119.

Concurrently, Evergreen applied for a § 404 permit from the Corps. R. 3:1. Such a permit is required because construction of the Oakfield Project will involve the permanent fill of 2.57 acres of wetlands and the temporary fill of 24.3 acres of streams and wetlands. R. 1:183. The Corps issued a public notice of Evergreen's permit application on September 20, 2011, and opened a public comment period. R. 7:109. As part of the comment period, the National Marine Fisheries Service ("NMFS") provided recommendations for permit conditions related to the Oakfield Project's potential impacts on Atlantic salmon, which the Corps adopted. R. 7:71, 1:181. The Environmental Protection Agency also responded during the comment period, indicating that it had no objections to the issuance of a § 404 permit. R. 1:179.

During this period, the Corps also initiated informal consultation with the United States Fish and Wildlife Service ("USFWS") regarding potential impacts to Atlantic salmon and Canada lynx, pursuant to the Endangered Species Act ("ESA"), 16 U.S.C.A. § 1531 et seq. R. 6:497-501. The Corps subsequently determined that the Oakfield Project was "unlikely to adversely affect" listed species. R. 6:501. The Corps requested that the USFWS concur in this determination, and the USFWS issued its letter of concurrence on January 23, 2013. R. 6:14-32.

Additionally, the Corps prepared an environmental impact assessment, and evaluated the project against the relevant Clean Water Act guidelines. R. 1:174-204. Following these internal evaluations, inter-agency consultations, and public comment, the Corps concluded that issuing the § 404 permit would comply with Clean Water Act guidelines and would not be contrary to the public interest. R. 1:203-204. The Corps issued a § 404 permit to Evergreen on May 13, 2013. R. 1:15.

III. DISCUSSION

Because my review is limited to the administrative record, there are no genuine issues of material fact. See Maine v. Norton, 257 F.Supp.2d 357, 363 (D. Me. 2003). Accordingly, "[s]ummary judgment is an appropriate procedure for resolving a challenge to a federal agency's administrative decision[.]" Id. The parties have cross-motioned for summary judgment on each of the plaintiffs' claims, namely, that the Corps violated the Clean Water Act, the Endangered Species Act, the Migratory Bird Treaty Act, 16 U.S.C.A. § 703 et seq., and the Bald and Golden Eagle Protection Act, 16 U.S.C.A. § 668 et seq. ...


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