O'Reilly v. US Army Corps of Eng ( 2023 )

Case: 22-30608 Document: 00516928970 Page: 1 Date Filed: 10/12/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
October 12, 2023
No. 22-30608 Lyle W. Cayce
____________ Clerk
Loretto O’Reilly, Jr.; Healthy Gulf; Coalition for
Responsible Zoning; Sierra Club, Delta Chapter,
Plaintiffs—Appellants,
versus
All State Financial Company,
Intervenor—Appellee,
St. Tammany Parish Government,
Intervenor Plaintiff—Appellee,
United States Army Corps of Engineers; Scott A.
Spellmon, Lieutenant General,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:21-CV-1027
______________________________
Before Wiener, Graves, and Douglas, Circuit Judges.
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Per Curiam:*
All State Financial Company (“All State”) wishes to dredge and fill
24.58 acres of wetlands in St. Tammany Parish, Louisiana, to build a multi-
use commercial and residential development. The United States Army Corps
of Engineers (“Corps”) issued All State a permit to do so under § 404 of the
Clean Water Act (“CWA”), after determining that the project would have
no significant impact on the environment. Plaintiffs, residents of St.
Tammany and other concerned environmental groups, appeal the district
court’s affirmance of the Corps’ decision. Because the Corps’
Environmental Assessment (“EA”) fails to articulate a reasonable basis for
its Finding of No Significant Impact (“FONSI”), we reverse the district
court and remand to the Corps for further proceedings consistent with this
opinion.
I. STATUTORY FRAMEWORK
The National Environmental Policy Act (“NEPA”) imposes
procedural requirements on public agencies to ensure that they consider “the
environmental impact of their proposals and actions.” Dep’t of Transp. v.
Pub. Citizen, 541 U.S. 752, 757 (2004) (citing 42 U.S.C. § 4332). In
complying with its responsibilities under NEPA, an agency must first prepare
an EA to “briefly” determine the potential environmental impacts of a
proposed action. 40 C.F.R. § 1508.9.1 An EA is a “rough-cut, low-budget”
statement that evaluates whether the proposed action will “significantly
affect[] the quality of the human environment.” Sabine River Auth. v. U.S.
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
1
The Council on Environmental Quality (“CEQ”) published new rules in
September 2020, revising earlier NEPA regulations, but the decisions challenged here were
subject to the earlier version of the regulations. Thus, all citations to CEQ regulations
herein refer to the regulations codified at 40 C.F.R. pt. 1500 (2018).
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Dep’t of Interior, 951 F.2d 669, 676 (5th Cir. 1992) (quoting 42 U.S.C.
§ 4332(2)(C)). If it will, the agency must prepare a more detailed
Environmental Impact Statement (“EIS”), including, inter alia, information
on any adverse environmental effects of the project, “alternatives to the
proposed agency action,” and “any irreversible and irretrievable
commitments of Federal resources which would be involved in the proposed
action should it be implemented.” 42 U.S.C. § 4332(C). If, on the other
hand, the EA establishes that the action will not have a significant impact on
the environment, the agency instead issues a FONSI. 40 C.F.R. § 1508.13.
In determining whether to prepare an EIS or issue a FONSI, an agency
must take a “hard look” at the context and intensity of the project’s potential
impacts. Spiller v. White, 352 F.3d 235, 242 (5th Cir. 2003). Such impacts
include the direct, indirect, and cumulative effects of the action. 40 C.F.R.
§§ 1508.7-8. Considering the “context” of the effects requires that “the
significance of an action [] be analyzed in several contexts such as society as
a whole (human, national), the affected region, the affected interests, and the
locality.” 40 C.F.R. § 1508.27(a). “Intensity,” on the other hand, concerns
the “severity of the impact.” 40 C.F.R. § 1508.27(b). NEPA regulations list
ten factors that agencies should consider in evaluating the intensity of a
proposed project’s impacts.2 Id. If an agency “concludes that the preparation
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2
The ten listed factors are:
(1) Impacts that may be both beneficial and adverse. A significant effect
may exist even if the Federal agency believes that on balance the effect will
be beneficial.
(2) The degree to which the proposed action affects public health or safety.
(3) Unique characteristics of the geographic area such as proximity to
historic or cultural resources, park lands, prime farmlands, wetlands, wild
and scenic rivers, or ecologically critical areas.
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of an EIS is not required based on a FONSI, an aggrieved party may challenge
the decision in federal court under the Administrative Procedures Act.”
Sabine River, 951 F.2d at 677 (citing 5 U.S.C. § 706(2)(A)).
One type of federal action requiring NEPA review is the issuance of
permits under the CWA. Section 404 of the CWA authorizes the Corps to
issue permits for the dredging or filling of navigable waters, such as wetlands.
33 U.S.C. § 1344(a). NEPA mandates that the Corps complete an EA and
either prepare an EIS or issue a FONSI before granting a § 404 permit
application. See 33 C.F.R. § 230.7(a). Section 404 also has its own
requirements for analysis prior to issuing a permit, including examining the
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(4) The degree to which the effects on the quality of the human
environment are likely to be highly controversial.
(5) The degree to which the possible effects on the human environment
are highly uncertain or involve unique or unknown risks.
(6) The degree to which the action may establish a precedent for future
actions with significant effects or represents a decision in principle about a
future consideration.
(7) Whether the action is related to other actions with individually
insignificant but cumulatively significant impacts. Significance exists if it
is reasonable to anticipate a cumulatively significant impact on the
environment. Significance cannot be avoided by terming an action
temporary or by breaking it down into small component parts.
(8) The degree to which the action may adversely affect districts, sites,
highways, structures, or objects listed in or eligible for listing in the
National Register of Historic Places or may cause loss or destruction of
significant scientific, cultural, or historical resources.
(9) The degree to which the action may adversely affect an endangered or
threatened species or its habitat that has been determined to be critical
under the Endangered Species Act of 1973.
(10) Whether the action threatens a violation of Federal, State, or local law
or requirements imposed for the protection of the environment.
Spiller, 352 F.3d at 242 n.3 (quoting 40 C.F.R. § 1508.27(b)).
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cumulative impacts of the project on the aquatic environment and evaluating
the relevant “public interest” factors. See 33 C.F.R. pt. 320.
II. FACTUAL AND PROCEDURAL BACKGROUND
On February 6, 2018, Bruce Wainer of All State applied to the Corps
for a wetlands permit under § 404 of the CWA. All State sought permission
to begin work on the Timber Branch II project (“TB II”), a proposed multi-
use commercial and residential development located in Covington, a town in
St. Tammany Parish, Louisiana. The plans for TB II include a business
campus, a public utility facility, a restaurant, and an 80-home development.
Wainer owns the 200-acre tract within which TB II would be located.
TB II necessitated the Corps’ permission because it involves the
filling of jurisdictional wetlands. See 33 U.S.C. § 1344. The total acreage of
TB II, as described in the application, is 69.19 forested acres. Wetlands
comprise 24.58 of those acres. Those wetlands are adjacent to the (Little)
Tchefuncte River and the Timber Branch River, and are in a flood hazard
area. To develop the area, All State would need to fill the wetlands with
concrete.
In 2000, the former owner of that tract applied for a § 404 permit for
a project, also called Timber Branch II. The Corps granted that permit,
allowing for the dredging and filling of 39.54 acres of wetlands. However, the
district court enjoined that project, holding that the Corps abused its
discretion in issuing the permit without any “real analysis or data.” O’Reilly
v. U.S. Army Corps of Eng’rs, No. Civ.A. 04-940, 2004 WL 1794531, at *5
(E.D. La. Aug. 10, 2004). This court upheld the district court’s injunction,
agreeing that the Corps had failed to adequately explain its permit issuance
decision. O’Reilly v. U.S. Army Corps of Eng’rs, 477 F.3d 225, 234 (5th Cir.
2007). Specifically, we faulted the Corps for failing to explain how the noted
environmental impacts of the project would be insignificant or would be
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“reduced to insignificance by its prescribed mitigation measure.” Id. at 232.
The 2000 Timber Branch II project did not proceed after our decision.
We now return to the present permit. On March 19, 2018, the Corps
posted a link on its website to a public notice of All State’s permit application
for TB II, in accordance with the CWA. No public meeting or hearing was
requested to discuss the application, but the Corps received several
comments on the proposal. The United States Environmental Protection
Agency and the National Marine Fisheries Service submitted comments,
stating that they had no objection to the issuance of a § 404 permit as long as
the project satisfied the statute’s requirements. The Tulane Environmental
Law Clinic, on behalf of Hazel (Sinclair) Piazza, Loretto O’Reilly, and the
Gulf Restoration Net-work, submitted a comment requesting denial of TB II
as proposed. The Tulane Clinic expressed concerns about the high density of
development in the area, the drainage and flooding, and the project’s impacts
on wetlands, wildlife, traffic, noise, and water quality. The Tulane Clinic
further noted that TB II is substantially similar to the 2000 Timber Branch II
project. Because, in that case, this court enjoined the Corps from issuing a
§ 404 permit “until further orders of the district court consistent with this
opinion,” the Tulane Clinic contended that the Corps could not grant All
State’s present application. Other comments detailed further concerns about
the floodplain and storm drainage impacts of the project.
In November 2020, the Corps approved the permit application for TB
II, issuing Permit MVN-2018-0215-EPP to All State. Alongside the permit,
the Corps issued a 22-page Memorandum for Record (“MOR”),
representing the EA in support of the Corps’ issuance decision as required
by NEPA.3 The EA reviewed potential impacts of the project, evaluated
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3
The document is styled as a “Memorandum for Record,” and the subject line is
“Department of the Army Environmental Assessment and Statement of Findings for the
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practicable alternatives, and described the compensatory mitigation required
to offset any environmental effects. While the Corps did not itself respond to
the public comments it had received, it provided All State’s replies. The
Corps issued a FONSI, explaining that “the incremental contribution of [TB
II] to cumulative impacts . . . are not considered to be significant” and that
compensatory mitigation would “help offset the impacts to eliminate or
minimize the proposed activity’s incremental contribution to cumulative
effects.”
Plaintiffs filed this case in the U.S. District Court for the Eastern
District of Louisiana in May of 2021. Named as Defendants-Appellees were
the Corps and the Corps’ Chief of Engineers Lieutenant General Scott
Spellmon, in his official capacity. Plaintiffs sought declaratory and injunctive
relief under the Administrative Procedure Act (“APA”), NEPA, and the
CWA.4 Intervenor-Appellee All State and Intervenor Plaintiff-Appellee St.
Tammany Parish Government (“St. Tammany”) were granted permission
to intervene. Plaintiffs, All State, and the Corps filed cross-motions for
summary judgment. In August 2022, the district court granted summary
judgment in favor of the Corps and All State, holding that the TP II MOR did
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Above-Referenced Standard Individual Permit Application.” The document “constitutes
the Environmental Assessment, 404(b)(1) Guidelines Evaluation, as applicable, Public
Interest Review, and Statement of Findings.” Although it includes more than an EA—
notably, the CWA’s § 404 permit requirements as well as those under NEPA—we refer to
the MOR as an EA for ease.
4
Plaintiffs also disputed a permit that the Corps had granted for the Ochsner
Extension Road project, which is a concrete fill project in wetlands less than two miles from
the TB II area and in the same watershed. On appeal, Plaintiffs do not challenge the district
court’s decision to affirm the issuance of the Ochsner permit.
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not violate NEPA or the CWA.5 Plaintiffs filed a timely notice of appeal. Fed.
R. App. P. 4(a)(1)(B).
III. STANDARD OF REVIEW
This court reviews the district court’s grant of summary judgment de
novo, and applies the APA’s standard of review to the agency’s decision.
Shell Offshore Inc. v. Babbitt, 238 F.3d 622, 627 (5th Cir. 2001); Medina Cnty.
Env’t Action Ass’n v. STB, 602 F.3d 687, 699 (5th Cir. 2010). Under the APA,
an agency action may be set aside only when it is determined to be “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.”
5 U.S.C. § 706(2)(A). A decision is arbitrary and capricious when the agency
. . . has relied on factors which Congress had not intended it to
consider, entirely failed to consider an important aspect of the
problem, offered an explanation 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.
Fath v. Tex. Dep’t of Transp., 924 F.3d 132, 136 (5th Cir. 2018) (quoting Motor
Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).
“This is a demanding standard.” Atchafalaya Basinkeeper v. U.S.
Army Corps of Eng’rs, 894 F.3d 692, 697 (5th Cir. 2018). The district court is
not permitted to conduct a de novo review of the permitting decision and
ultimately substitute its own determination for that of agency’s. Avoyelles
Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 904 (5th Cir. 1983). As we
recently reiterated, however, a reviewing court “must ensure that the agency
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5
The district court also held that the Corps’ issuance of the TB II Permit did not
violate the Fifth Circuit’s 2007 injunction in the previous O’Reilly litigation. On appeal,
Plaintiffs do not challenge that decision, but instead contend that the earlier O’Reilly case
is informative, but not binding, in the instant matter.
8
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has acted within a zone of reasonableness and, in particular, has reasonably
considered the relevant issues and reasonably explained the decision.” Data
Mktg. P’ship, LP v. U.S. Dep’t of Labor, 45 F.4th 846, 855–56 (5th Cir. 2022)
(internal quotation marks and citation omitted). The agency must examine
the relevant data and articulate a satisfactory explanation for its action,
including a “rational connection between the facts found and the choice
made.” Atchafalaya Basinkeeper, 894 F.3d at 697 (quoting Motor Vehicle Mfrs.
Ass’n, 463 U.S. at 43).
IV. ANALYSIS
On appeal, Plaintiffs assert that the district court erred in upholding
the Corps’ decision. They contend that the EA failed to meaningfully
consider the potential impacts of TB II, including its cumulative effects, in
violation of both NEPA and the CWA.
A. Potential Direct and Indirect Impacts
The Corps issued a FONSI because it determined that TB II would
not have a significant impact on the environment. The EA includes tables
that summarize the Corps’ analysis of: (1) potential impacts on physical and
chemical characteristics in the aquatic ecosystem; (2) potential impacts on
biological characteristics in the aquatic ecosystem; (3) potential impacts on
special aquatic sites; (4) potential impacts on human use characteristics; and
(5) factual determinations of potential impacts. Each of those tables are
drawn from the regulations associated with § 404 of the CWA. See 40 C.F.R.
pt. 230. In those tables, the EA indicates whether TB II would have “no
effect,” a “negligible effect,” a “minor effect (short term),” a “minor effect
(long term),” or a “major effect” on the area. For example, in evaluating the
project’s potential impact on the biological characteristics of the aquatic
ecosystem, per 40 C.F.R. § 230.30, the Corps determined that the project
would have no impact on threatened and endangered species, a short-term
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minor impact on aquatic organisms, and a long-term minor impact on other
wildlife. In another example, the Corps checked off “minor effect (long
term)” for TB II’s impact on wetlands. In a one-sentence “discussion”
following that particular table, the EA states that “compensatory mitigation
should minimize negative impacts to wetland resources.”
Consistent with its responsibility under the CWA, the EA also
includes a Public Interest Review. The Corps again used a table to evaluate
the effects of TB II, running from “detrimental” to “beneficial,” on twenty-
one factors. Those factors cover a variety of considerations, including
conservation, flood hazards, floodplain values, safety, and energy needs. The
Corps concluded that the project would have a “neutral (mitigated)” impact
on wetlands, a “negligible” impact on flood hazards, and a “detrimental”
impact on recreation. The only discussion in that section states: “[t]opics
noted as detrimental in Table 9 [the Public Interest Review] will be short-
term and localized.”6
Plaintiffs challenged the EA’s conclusions on the significance of those
impacts, asserting that the Corps acted arbitrarily by “X-ing off” significance
determinations without explanation. The district court disagreed. It noted
that the Corps relied on a hydrological analysis submitted by All State in
assessing the significance of the project’s impacts, and chose not to credit the
opposing study offered by Plaintiffs from Dr. Tonja Koob. The district court
also emphasized that the ten intensity factors in the CEQ regulations are not
“categorical rules” that must be addressed separately and directly. The court
thus held that the Corps did not act arbitrarily by not making express
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6
Interestingly, the next page of the EA states that the “detrimental effects that the
proposed work is likely to have on the public and private use” are “minimal and
permanent.” (Emphasis added).
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significance findings for each factor in determining whether TB II’s potential
impacts were severe enough to warrant a full EIS.
We have repeatedly agreed that “mere perfunctory or conclusory
language will not be deemed to constitute an adequate record and cannot
serve to support the agency’s decision not to prepare an EIS.” O’Reilly, 477
F.3d at 231 (quoting Citizen Advocates for Responsible Expansion, Inc. (I-Care)
v. Dole, 770 F.2d 423, 434 (5th Cir. 1985)). An EA is intended to be a “rough-
cut, low-budget preliminary look at the environmental impact of a proposed
project,” but the Corps’ decision must still be reasonably supported. Sabine
River, 951 F.2d at 677 (internal citation omitted). This court must ensure that
the agency has “reasonably considered the relevant issues and reasonably
explained the decision.” Fed. Commc’n Comm’n v. Prometheus Radio Proj., 592
U.S. 1152, 1158 (2021) (emphasis added).
The Corps articulated no basis for its findings of significance. It failed
to explain, for example, why it determined that TB II would have a short-
term minor effect on aquatic organisms but a long-term minor effect on other
wildlife. That failure to make a “rational connection between the facts found
and the choice made” is a dereliction of the duty imposed by NEPA. Motor
Vehicles Mfrs. Ass’n, 463 U.S. at 43 (internal citation omitted). Although an
EA is intended to be short, it still must explain its reasoning. See id. The
deficient EA in the 2003 O’Reilly litigation was nearly twice the length of this
one, and included a paragraph about the significance of each physical impact.
Even that was insufficient under NEPA. O’Reilly, 477 F.3d at 232. Here, the
use of checkboxes without any comment or analysis is even less thorough and
does not meet the level of scrutiny required by NEPA. 7
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7
We do recognize that the EA is not entirely devoid of reasoning. In the table on
factual determinations, for example, the Corps checked off “minor effect (long term)” for
the project’s impact on aquatic ecosystem and organisms. In the five-sentence
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The district court reasoned that the Corps came to its determination
of significance by crediting All State’s expert’s analysis, which found that the
project will “actually decrease floodwater runoff,” instead of that of Dr.
Koob, which opined that the opposite would occur. This is an impermissible
post-hoc rationalization, not supported by the EA, which nowhere mentions
either study. See Motor Vehicles Mfrs. Ass’n, 463 U.S. at 50. Further, the
Corps is not permitted to “reflexively rubber stamp a statement prepared by
others.” Save Our Wetlands, Inc. v. Sands, 711 F.2d 634, 642 (5th Cir. 1983).
Nothing in the record suggests that the Corps either performed the required
independent evaluation of the applicant-submitted hydrologic study or
conducted its own research. See 40 C.F.R. § 1506.5(a) (“The agency shall
independently evaluate the information submitted and shall be responsible
for its accuracy.”). Similarly, the EA does not provide any response to public
comments; it includes only All State’s answers.8 The Corps was essentially
silent as to why it agreed with All State and decided to issue a FONSI.
By failing to explain how it determined TB II’s impacts would not rise
to the level of significant, the Corps “entirely failed to consider an important
aspect of the problem.” Motor Vehicles Mfrs. Ass’n, 463 U.S. at 43. The Corps
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“discussion” after the table, it noted that “[a]quatic organisms are typically motile and
would attempt to avoid the work areas.” That helps to explain why TB II’s effect on aquatic
organisms would not be major. On remand, the Corps must support its other findings with
similar explanations.
8
Agencies are not required to respond to each comment individually, but the
regulations contemplate some type of agency response. See 40 C.F.R. § 1503.4; see also
Nat’l Audubon Soc’y v. Dep’t of Navy, 422 F.3d 174, 185 (4th Cir. 2005) (interpreting
§ 1503.4 to mandate agency response); Mid States Coal. for Progress v. Surface Transp. Bd.,
345 F.3d 520, 537 (8th Cir. 2003) (same); Utahns for Better Transp. v. U.S. Dep’t of Transp.,
305 F.3d 1152, 1177 (10th Cir. 2003) (same). The EA as written prevents us from discerning
whether the Corps assessed and approved of All State’s responses to the comments or
simply “rubber stamp[ed]” them. Save Our Wetlands, 711 F.2d at 642.
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thus acted arbitrarily in relying on this EA to issue a FONSI. See O’Reilly,
477 F.3d at 234.
B. Cumulative Impacts
An action may individually affect the environment, directly or
indirectly, or many small actions may accumulate to make a larger impact.
Plaintiffs challenge the district court’s determination that the Corps’ FONSI
was not arbitrary and capricious for its failure to analyze not only TB II’s
individual impacts, but also the project’s cumulative effect on the
environment. We begin with a review of the statutory framework under
NEPA and the CWA, as both statutes require an analysis of the cumulative
impacts of an agency action.
NEPA defines cumulative impact as one that “results from the
incremental impact of the action when added to other past, present, and
reasonably foreseeable actions.” 40 C.F.R. § 1508.7. Cumulative impacts
“can result from individually minor but collectively significant actions taking
place over a period of time.” Id. The statute requires an agency to consider
cumulative impacts when assessing the severity of a proposed project’s
environmental effects, as well as the scope of the action’s impact. 40 C.F.R.
§§ 1508.25(a)(2), 1508.27(b)(7).
The CWA itself also requires consideration of cumulative effects
when making factual determinations about the impacts of the proposed
discharge of fill material on the aquatic environment. 40 C.F.R. § 230.11(g).
The Act defines cumulative impacts as environmental changes that “are
attributable to the collective effect of a number of individual discharges.” Id.It notes that “[a]lthough the impact of a particular discharge may constitute
a minor change in itself, the cumulative effect of numerous such piecemeal
changes can result in a major impairment of the water resources and interfere
with the productivity and water quality of existing aquatic ecosystems.” Id.13
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The TB II EA mentions cumulative impacts of the project in several
areas. First, within the table on “factual determinations,” as required by the
CWA, the Corps found that the project will have a long-term minor impact
on the “cumulative effects on the aquatic ecosystem.” Section 9 of the EA,
citing regulations from both the CWA and NEPA, purports to discuss “the
overall impacts that will result from [TB II], in relation to the overall impacts
from past, present, and reasonably foreseeable cumulative impacts in the
area.” The Corps defined the geographic and temporal scope for the
cumulative effects assessment, described the location of the project site, and
determined that “the incremental contribution of the proposed activity to
cumulative impacts on the area . . . are not considered to be significant.” The
district court held that this discussion was sufficient under the APA.
Although not mentioned in the district court’s decision on this point,
the parties’ current disagreement about cumulative impact analysis centers
on our decision in Atchafalaya Basinkeeper. There, we held that “a finding of
no incremental impact relieves an agency of the necessity of extensive and
ultimately uninformative discussion of cumulative effects pursuant to
[NEPA].” 894 F.3d at 704. This makes logical sense: as All State points out,
seven plus zero is still seven. When a project will not have any incremental
effect on the environment, it cannot contribute to a wider cumulative effect.
This is premised on the “rule of reason,” which “relieves agencies from
preparing exhaustive reports that would serve no purpose in light of NEPA’s
regulatory scheme as a whole.” Fath, 924 F.3d at 139 (internal quotation
marks and citation omitted).
Appellees maintain that the Corps was relieved of its responsibility to
conduct a cumulative impact analysis because the EA showed that TB II
would not have any significant effects on the environment. Putting aside our
earlier discussion of the arbitrary nature of the Corps’ individual significance
determination, Appellees confuse incremental impact and significant impact.
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NEPA requires consideration of cumulative impacts so as not to discount the
effect of the “incremental impact[] of the action when added to other[s].” 40
C.F.R. § 1508.7 (emphasis added). The EA determined that TB II would
result in some level of habitat loss, and in an increase in traffic and noise,
among other effects. Although such impacts were not anticipated to rise to
the level of significant, they are at least incremental, as they do exist. This
case is therefore distinguishable from Atchafalaya Basin, in which the EA
found no incremental impact at all. 894 F.3d at 703.
TB II is the very type of project that cumulative impact analysis is
intended to address. Without that important step, projects like TB II, which
result in a number of incremental impacts on the environment, could pile up
and lead to something significant, while escaping the eye of the Corps.9 The
Corps has fielded over eighty § 404 permit applications in the last five years
in an area within three miles of the TB II site. If each of those projects has
only an incremental environmental impact of 0.1 (an arbitrary small number
that represents the incremental anticipated impact of TB II), the Corps’
reasoning here would relieve it from its responsibility to conduct a
cumulative assessment. However, such analysis would be valuable since it
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9
While we used the words “incremental” and “significant” somewhat
interchangeably and perhaps imprecisely in our decision in Fath, in that case our policy
concerns were different. There, the proposed project involved overpasses in an already
highly-developed and highly-trafficked urban area. 924 F.3d at 139. This court determined
that engaging in a full cumulative assessment would “serve no purpose,” as the proposed
action would not “change the environmental status quo” of an already urban site. Id. at
139-40. That is not the case here, as All State is proposing to permanently fill 24.58 acres
of wetlands and develop what is still a natural environmental area. This case is more like
Fritiofson v. Alexander, in which we explained that the “unique and fragile nature of wetland
areas” means that incremental impacts are more likely to compound into a cumulatively
significant effect. 772 F.2d 1225, 1246 (5th Cir. 1985), abrogated on other grounds by Sabine
River, 951 F.2d 669. The “rule of reason” does not support a decision to forego cumulative
analysis here. Fath, 924 F.3d at 139.
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would reveal that, cumulatively, the projects have a significant effect on the
environment. While seven plus zero is still seven, seven plus eight (0.1 times
80) is fifteen.
The district court’s holding that the Corps did not need to conduct a
cumulative impact analysis was premised on a different line of reasoning, viz.,
that cumulative impact is one of ten “non-categorical factors” in the
regulations. While this may be true in the list of intensity factors in 40 C.F.R.
§ 1508.27, that is not the only regulation requiring cumulative analysis under
NEPA. The regulations also mandate consideration of cumulative impact
when addressing types and the scope of effects. See 40 C.F.R. §§ 1508.7,
1508.25(a)(2). And we have said that “agencies must consider each
cumulative impact of permitted actions.” Atchafalaya Basinkeeper, 894 F.3d
at 703 (emphasis added) (internal quotation marks omitted). Unless the
project will have no incremental environmental impacts whatsoever, as
discussed above, some amount of cumulative analysis is required.
Because the EA determined that TB II would have some level of
incremental impact on the environment, it was arbitrary and capricious for
the Corps to limit its cumulative impact analysis. See Fath, 924 F.3d at 140.
And the limited analysis that is included in the EA does not meet the
requirements of NEPA. A cumulative effects assessment must include
consideration of “past, present, and reasonably foreseeable future actions”
that have had or are expected to have impacts in the same geographic area.
40 C.F.R. § 1508.7. The EA does not mention any of those other actions. See
While the Corps is entitled to consider the effects of past actions “in the
aggregate” without mentioning specific individual past projects, the Corps
failed to do even that. See James L. Connaughton, Guidance on the
Consideration of Past Actions in Cumulative Effects Analysis (Mem.), COUNCIL
ON ENV’T QUALITY (June 24, 2005), https://ceq.doe.gov/docs/ceq-
regulations-and-guidance/regs/Guidance_on_CE.pdf. The EA nowhere
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refers to two past phenomena that constitute important context for the TB II
proposal: (1) the dozens of permits that the Corps has granted recently in the
Liberty Bayou-Tchefuncta area, and (2) the catastrophic 2016 flooding in St.
Tammany, both of which were raised by several public comments. The Corps
failed to consider how the incremental effects of the project might compound
these preexisting environmental concerns. Or, if it did, it did not adequately
document its analysis so that we could meaningfully review its decision. See
Motor Vehicles Mfrs. Ass’n, 463 U.S. at 43.
On the other hand, we are not persuaded that, as Plaintiffs argue, the
Corps acted arbitrarily or abused its discretion by failing to consider
reasonably foreseeable future actions in its cumulative assessment. A
reasonably foreseeable action is one that is “sufficiently likely to occur that a
person of ordinary prudence would take it into account in reaching a
decision.” City of Shoreacres v. Waterworth, 420 F.3d 440, 453 (5th Cir. 2005)
(citation omitted). Plaintiffs contend that the record shows that it is
reasonably foreseeable that the TB II project will be expanded to cover the
rest of Bruce Wainer’s land. In support of this contention, Plaintiffs offer two
affidavits from residents who represent that Wainer showed them his plans
to develop the rest of the site. Such evidence is not enough to establish that
future development is “sufficiently likely,” rather than merely a possibility.
City of Shoreacres, 420 F.3d at 453. Indeed, this court has found that future
development need not be considered in cumulative impact analyses when
permit applications have been filed but the Corps has not yet begun working
on an EIS, since the plans could still be “cancelled or drastically altered.”
Gulf Restoration Network v. U.S. Dep’t of Transp., 452 F.3d 362, 370 (5th Cir.
2006). Wainer’s alleged plans are far less established. The Corps did not
abuse its discretion in failing to specifically address those future actions.
A brief word is in order regarding the CWA, as Plaintiffs challenge the
Corps’ permitting decision under both NEPA and the CWA. We have
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determined that the Corps acted arbitrarily when it issued a FONSI without
conducting a sufficient analysis in the EA of TB II’s cumulative impacts – all
in violation of NEPA. As described above, the CWA has its own cumulative
assessment requirements beyond and apart from NEPA, focused on the
aquatic environment. The district court declined to consider the cumulative
effects of TB II under the CWA because it was “not persuaded that the
specific cumulative impacts concerns raised by Plaintiffs actually implicate
the CWA’s zone of interests.” We disagree. The CWA requires the Corps
to consider the “changes in an aquatic ecosystem that are attributable to the
collective effect of a number of individual discharges of dredged or fill
material.” 40 C.F.R. § 230.11(g)(1). Plaintiffs raised concerns about the
cumulative impact of the large number of § 404 permits issued in the area by
the Corps in recent years. That, in turn, permitted activity which has led to a
higher number of dredging or filling projects, rendering it directly related to
the CWA’s “zone of interests.”10
Under the APA, the Corps must adequately explain its decision
making, regardless of the statute under which its action is challenged. See
Ohio Valley Env’t Coalition v. Aracoma Coal Co., 556 F.3d 177, 209 (4th Cir.
2009) (reviewing cumulative analysis under both the CWA and NEPA). Just
as the analysis of potential impacts of TB II was deficient under NEPA, so
too are the considerations of the impacts on the aquatic ecosystem under the
CWA. The Corps must explain why it concluded that “[c]umulatively,
similar projects could have a long-term impact on the aquatic ecosystem.”
Without this “rational connection between the facts found and the choice
_____________________
10
Assuming the district court was referring to Plaintiffs’ central focus on flooding,
changes in the floodplain would certainly impact the area’s aquatic environment. And
Plaintiffs did in fact raise specific concerns about the impact of the project on water quality
and the habitat of aquatic wildlife.
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made,” this court cannot perform its duty in ensuring that the Corps’
decision was not “arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” Motor Vehicle Mfrs. Ass’n, 463 U.S. at 41, 43
(quoting 5 U.S.C. § 706(2)(A)).
V. CONCLUSION
We understand that an EA is intended to be a concise document. 40
C.F.R. § 1508.9(a). Yet it must also “provide sufficient evidence and
analysis” for determining whether to prepare an EIS or issue a FONSI. Id.Because the TB II EA lacks sufficient detail, we cannot say whether or not
the project will have a significant effect on the environment—it remains “an
open question.” Fritiofson, 772 F.2d at 1247 (quoting La. Wildlife Fed., Inc. v.
York, 761 F.2d 1044, 1053 (5th Cir. 1985)). We remand this case to the Corps
to reassess the significance of the instant project in light of this Court’s
opinion.
We therefore (1) REVERSE and VACATE the district court’s Order
of August 15, 2022; (2) ENJOIN the Corps from issuing a § 404 permit until
the district court issues further orders; and (3) REMAND this case to the
Corps for further proceedings consistent with this opinion, including the
preparation of a new EA.
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