Snoqualmie Valley Preservation v. USACE

“Although NWP 17 [72 Fed. Reg. at 11,184] is the only general permit specifically referencing hydropower projects, no language contained therein prevents the [U.S. Army Corps of Engineers] from applying other permits to hydropower projects that meet those other permits’ standards.”

Puget Sound Energy, Inc. (“PSE”) planned modifications to a hydroelectric power plant at Snoqualmie Falls to relieve flooding. PSE pursued verification from the U.S. Army Corps of Engineers (“Corps”) through general nationwide permits (“NWPs”) that would allow PSE to discharge certain fill materials into the Snoqualmie River. In 2009, the Corps sent a Verification Letter and a Decision Document, confirming that the project fell within NWPs 3a, 33, and 39, and would have “minimal individual and cumulative impacts.” The Snoqualmie Valley Preservation Alliance (“Alliance”), formed by property owners downstream, filed suit against the Corps, arguing, inter alia, that “the Corps violated the [Clean Water Act (‘CWA’)] in authorizing discharges under the [NWPs] rather than requiring an individual permit.” PSE intervened, and the district court granted summary judgment in favor of the Corps and PSE. On appeal, the Court noted that it could only set aside an agency’s decision if the agency “entirely failed to consider an important aspect of the problem,” or did not “articulate a rational connection between the facts found and the conclusions made.” The Court found that “[t]he Alliance’s argument that hydropower projects can only be authorized under NWP [17], or otherwise must undergo the individual permitting process, is not supported by the regulation.” In deferring to the Corps’s interpretation and application of its own regulations, the Court concluded that the Corps’s decision was consistent with its regulation and practices. Thus, it did not err in verifying that the proposed activity was within NWPs 3 and 39. The Corps was sufficiently articulate in providing reasons for authorization in the Verification Letter, and the Court declined to require greater analysis. AFFIRMED.