Sound Action v. U.S. Army Corps of Engineers

The federal district court for the Western District of Washington denied a U.S. Army Corps of Engineers motion to dismiss a claim that the Corps arbitrarily and capriciously limited its jurisdiction in the Seattle District under Section 404 of the Clean Water Act by deciding not to proceed with a recommended change to the high tide line boundary. The plaintiffs—three environmental advocacy groups—contended that shoreline armoring projects such as seawalls and bulkheads damage the Puget Sound ecosystem and that the Corps was unlawfully limiting its jurisdiction over such projects by using a mean higher high water (MHHW) boundary rather than the mean annual highest tide (MAHT). The plaintiffs alleged that harms associated with shoreline armoring projects would increase due to climate change, as sea levels rise and demand for armoring projects increases. They asserted that the Seattle District had adopted MHHW for the high tide line because it was the highest tidal elevation data available at the time the Clean Water Act was enacted, but that it was frequently exceeded and that data for higher tidal elevations, including MAHT, was now accessible. The court rejected the Corps’ argument that that a memo from the commander of the Corps’ Northwestern Division directing that the Seattle District “shift away from further consideration” of changing the jurisdictional boundary was a not a final agency action. The court found that the memo marked the consummation of the Corps’ decision-making on whether to maintain its use of MHHW as the boundary. The court also said the memo determined rights and obligations and gave rise to direct and appreciable legal consequences since it “indefinitely stopped” any consideration of a change to the boundary. In addition, the court found that the plaintiffs had adequately pleaded standing.