## Facts

- The U.S. Army Corps of Engineers issued a Clean Water Act (CWA) § 404 permit authorizing discharge of fill into jurisdictional wetlands in Pasco County, Florida, for the Cypress Creek Town Center commercial development.
- The Corps prepared an environmental assessment supporting permit issuance and evaluated the project under the CWA § 404(b)(1) Guidelines.
- Because the area contained listed species, the permit also implicated the Endangered Species Act (ESA), including potential effects on the wood stork and the eastern indigo snake.
- Environmental organizations challenged the permit, alleging (1) the Corps failed to identify and select a practicable, less damaging alternative under the CWA, and (2) the Corps’ ESA analysis and mitigation were inadequate for both species.
- The district court granted summary judgment to the Corps and other defendants.
- On appeal, the D.C. Circuit reviewed the permit decision under the Administrative Procedure Act’s arbitrary-and-capricious standard.

## Issues

1. Whether the Corps violated the CWA § 404(b)(1) Guidelines by issuing the permit despite a practicable alternative with less adverse effect on the aquatic ecosystem.
2. Whether the Corps’ ESA analysis and mitigation for the wood stork were arbitrary and capricious or otherwise unlawful.
3. Whether the Corps’ ESA analysis and permit conditions adequately addressed risks to the eastern indigo snake.

## Decision

- The court affirmed the permit decision as to the CWA alternatives analysis, holding the Corps reasonably evaluated practicable alternatives and adequately explained why no less damaging practicable alternative satisfied the project purpose.
- The court affirmed as to the ESA claim involving the wood stork, concluding the agency record supported the Corps’ determination that mitigation and consultation measures avoided jeopardy.
- The court remanded as to the ESA claim involving the eastern indigo snake, holding the Corps failed to adopt or ensure adequate, enforceable protective measures for the species.
- Disposition: affirmed in part and remanded in part.

## Legal Principles

- Under the CWA § 404(b)(1) Guidelines, the Corps may not issue a § 404 permit if a practicable alternative exists that would have less adverse effect on the aquatic ecosystem, unless that alternative has other significant adverse environmental consequences.
- Under the APA, a court upholds an agency action if the agency applied the correct legal standards, considered relevant factors required by statute and regulation, and provided a reasoned explanation supported by the administrative record.
- Under the ESA, federal agencies must ensure their actions are not likely to jeopardize listed species and must rely on adequate consultation and concrete measures sufficient to address identified risks.
- A court may sustain an ESA analysis for one listed species while remanding for another where the record support and specificity of protective measures differ.

## Conclusion

The D.C. Circuit sustained the Corps’ § 404 permitting decision and its wood-stork ESA review, but required further agency action on remand because the Corps did not adequately ensure protective measures for the eastern indigo snake under the ESA.


Sierra Club v. Van Antwerp, 661 F.3d 1147 (D.C. Cir. 2011)