Mobile Baykeeper, Inc. v. U.S. Army Corps of Engineers et al

Filing 51

ORDER denying plaintiff's 38 Motion for Summary Judgment; granting 43 Cross-Motion for Summary Judgment filed by the Corps Defendants; granting 45 Motion for Summary Judgment filed by Plains Southcap. Plaintiff's claims are moot in part, to the extent that plaintiff seeks declaratory or injunctive relief as to stream crossings. Plaintiff's Complaint is dismissed with prejudice. Signed by Chief Judge William H. Steele on 10/16/2014. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MOBILE BAYKEEPER, INC.,
Plaintiff,
v.
U.S. ARMY CORPS OF ENGINEERS,
et al.,
Defendants,
PLAINS SOUTHCAP INC.,
Intervenor-Defendant.

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CIVIL ACTION 14-0032-WS-M

ORDER
This matter comes before the Court on a series of interlocking cross-motions for
summary judgment, including the following: Plaintiff’s Motion for Summary Judgment (doc.
38), the Cross-Motion for Summary Judgment (doc. 43) filed by the U.S. Army Corps of
Engineers, Lt. General Thomas P. Bostick and Col. Jon J. Chytka, and the Motion for Summary
Judgment (doc. 45) filed by intervenor-defendant Plains Southcap Inc. All three Motions have
been extensively briefed and are now ripe for disposition.
I.

Nature of the Case.
This action arises from Plains Southcap’s construction of a 24-inch crude oil pipeline

over a span of 41 miles, from the Ten-Mile Terminal, located approximately 11 miles northwest
of downtown Mobile, Alabama, extending southwest to the Chevron Refinery in Pascagoula,
Mississippi, approximately one mile from the Gulf of Mexico. An 18-mile portion of that
pipeline project was to be built in Mobile County, Alabama.1 That portion of the pipeline project
was designed to traverse the Big Creek Lake watershed, and to include multiple crossings of
1

The Mississippi section of the Plains Southcap pipeline project is beyond the
scope of this litigation, and will not be addressed herein.

Hamilton Creek, a major tributary of Big Creek Lake.2 In January 2013, the U.S. Army Corps of
Engineers (the “Corps”) issued 14 verifications for the Alabama portion of the pipeline, thereby
verifying that Nationwide Permit 12 (“NWP 12”) applied to those proposed discharges of
dredged and fill material, and authorizing construction to proceed under the Clean Water Act
(“CWA”). Later that year, Plains Southcap began constructing the pipeline in the Big Creek
Lake watershed.
On January 24, 2014, plaintiff, Mobile Baykeeper, Inc. (“Baykeeper”), commenced this
action against the Corps and two of its officials, Lt. General Thomas P. Bostick and Col. Jon J.
Chytka (collectively, the “Corps Defendants”). Baykeeper alleged that the Corps’ verification of
the pipeline project routing through the Big Creek Lake – Hamilton Creek watershed violated the
CWA, the Administrative Procedure Act (“APA”), and applicable rules and regulations because
(i) the Corps failed to consider General Condition 7, relating to proximity to public water supply
intakes; (ii) the Corps failed to consider the cumulative impacts of the pipeline route in this
watershed; and (iii) the Corps failed to consider whether routing the pipeline through the
watershed would be contrary to the public interest. (Doc. 1, ¶¶ 50-68.) On that basis, Baykeeper
requested that the Court declare the Corps’ verifications of the Alabama segment of the pipeline
under NWP 12 to be null and void, enjoin Plains Southcap from conducting any activities in
reliance on those verifications, and enjoin the construction and operation of the pipeline until the
Corps Defendants comply with the CWA and the APA. Plaintiff did not seek a temporary
restraining order or preliminary injunction. On February 13, 2014, the Court entered an Order
(doc. 15) granting Plains Southcap’s motion to intervene as a party defendant.
Now, all parties have moved for summary judgment on this matter in its entirety.
II.

Relevant Factual Background.
A.

The Pre-Construction Notification.

On September 12, 2012, Plains Southcap caused to be submitted to the Corps a preconstruction notification (“PCN”) for the Alabama portion of the pipeline, whereby it requested
2

Documents in the administrative record confirm that Plains Southcap’s project
design was that “[t]he 50-foot wide pipeline corridor will require 22 stream crossings. … The
corridor will cross Big Creek (4 times), Double Branch (1), Hamilton Creek (8 times), Pierce
Creek (5 times), Red Creek (1), Wolf Branch (2), and Seabury Creek (1) at numerous locations.”
(AR 979.)

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authorization under NWP 12 to construct the project. (AR 2-3.)3 The PCN (which included
maps showing the proposed pipeline locations, as well as adjacent wetlands, streams, and other
topographic features) explained that construction of the pipeline would be within a 75-foot rightof-way, and would consist of clearing vegetation, excavating a trench, laying the pipe, replacing
soil, adjusting topography, and re-establishing vegetation, with a permanent 50-foot easement.
(AR 4.) Plains Southcap notified the Corps of its environmental consultants’ opinion that
“[b]ased on our regulatory analysis, the proposed project could be constructed under the
conditions of NWP 12 with submittal of a PCN.” (AR 61.)
B.

The January 2013 Verifications.

After several months of back-and-forth discussions and supplementation of information
by Plains Southcap (including detailed documentation concerning topics such as impacts on
gopher tortoises, bald eagles and sites containing cultural artifacts), the Corps issued a “Decision
Document” for the Alabama pipeline PCN on January 17, 2013. The Decision Document noted
that the project “will require temporary trenching of 22 stream crossings, impacting 389 linear
feet of stream bottoms, and the mechanized land-clearing, temporary trenching and side-casting
of fill, and temporary and permanent conversion of bottomland hardwood wetlands to shrubscrub and emergent wetlands within 40.42 acres of wetlands located within 107 wetland
polygons along the pipeline corridor in Alabama.” (AR 1005.) It further observed that “[a]ll
wetland and stream impacts are temporary except for the permanent conversion of forested
wetlands to non-forested wetlands.” (AR 1005-06.)
The Decision Document issued verification for the project under NWP 12, subject to
certain enumerated conditions. One such condition provided that “[m]aterial resulting from
trench excavation may be temporarily side cast into waters of the United States for no more than
three months, and must be placed and stabilized in such a manner that it will not be dispersed by
currents or other forces.” (AR 1007.) Another condition obligated Plains Southcap to purchase
25.92 bottomland hardwood wetland mitigation credits from an approved Alabama wetland
mitigation bank. (AR 1008.) The Corps further required Plains Southcap to restore all
3

The complete Administrative Record, totaling more than 1,000 pages, is found in
the court file at document 29. The pages in that record have been Bates stamped, and are cited
herein using those Bates-stamped numbers, with the citation form “AR ______.”

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temporary impacts to waters of the United States to their pre-impact elevation, contours and
ecological condition, except where otherwise noted, with annual monitoring reports to be
submitted for a period of five years. (Id.) Plains Southcap was forbidden from disposing of
trees, brush or other debris in any stream corridor, wetland or surface water, and was likewise
barred from discharging sewage, oil, refuse or other pollutants into the watercourse. (AR 1009.)
The Decision Document, which was authored by Corps Team Leader Michael B. Moxey,
concluded as follows: “I have reviewed the proposed project and determined that the work will
result in minimal individual and cumulative adverse effects on the aquatic environment.” (AR
1011.) Also in that Decision Document, Moxey certified that “[t]his project complies with all
terms and conditions of the NWP’s including any applicable Regional Conditions.” (Id.)
On January 18, 2013, the Corps sent a letter to Plains Southcap, verifying that the
Alabama portion of the pipeline is authorized by NWP 12 and providing 14 separate NWP 12
verifications (each one covering all impacts and crossings over a waterbody and adjacent
wetlands at a single location). (AR 1012-16.) Those verifications were to remain valid for two
years and were subject to all terms and conditions associated with NWP 12, as well as certain
special conditions enumerated by the Corps.4
As verified by the Corps, the Plains Southcap project called for the pipeline to be
constructed at distances of less than one mile from Big Creek Lake, the public drinking water
supply for approximately 200,000 people in the Mobile area. (Sackett Aff. (doc. 32-1), ¶ 11 &
Exh. A.) The pipeline would also pass within approximately two miles of the S. Palmer Gaillard
Pumping Station, the public water supply intake on Big Creek Lake. (Id., ¶ 10 & Exh. A.) And
the pipeline would cross Hamilton Creek, a tributary of Big Creek Lake, multiple times during
its routing through lower Alabama. (AR 1020-21.) Although the Administrative Record is
voluminous, all parties concur that it lacks any showing that the Corps considered the proximity
of the pipeline to the public water supply intake in issuing the NWP 12 verifications. There is
likewise no dispute that the Corps neglected to make any determination that allowing the

4

In particular, the Corps’ January 18 letter to Plains Southcap was clear that “[y]ou
must comply with all of the regional and general conditions and any project specific conditions
of these verifications or you may be subject to enforcement action.” (AR 1013.) The burden of
compliance was thus squarely placed on Plains Southcap, on pain of an enforcement action.

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pipeline to pass so close to the public water supply intake would serve the public interest. Such
concerns lie at the core of Baykeeper’s lawsuit.
C.

Post-January 2013 Modifications to the Project.

On February 10, 2014 (barely two weeks after Baykeeper filed suit), Plains Southcap
notified the Corps in writing that it had modified the pipeline design to utilize horizontal
directional drilling (“HDD”) techniques for certain stream crossings in the Hamilton Creek
watershed. (Doc. 34-1, at 1-2.) Plains Southcap explained that these modifications were being
implemented to “minimize any adverse impacts from construction.” (Id. at 2.) On that basis,
Plains Southcap requested re-verification from the Corps “that the Project is authorized under
NWP 12, in light of these new efforts to further minimize impacts in the area of the Hamilton
Creek watershed.” (Id.) On February 28, 2014, the Corps responded to Plains Southcap that “[a]
Department of the Army permit is not required for the proposed underground directional drilling
if there is no associated discharge of dredge or fill material into wetlands and streams. Your
previous authorization under Nationwide 12 for the remainder of the crossings remains in effect
….” (Doc. 34-2, at 1.)5
It is undisputed, however, that even with the aforementioned modifications, “some
permitted activities in the Hamilton Creek watershed remain.” (Doc. 43, at 11.) The Corps
acknowledges that when Plains Southcap excavated trenches for the pipeline that crossed
wetlands, the associated removal of vegetation and temporary discharge of dredged or fill
material into wetlands was subject to the Corps’ regulatory authority under § 404 of the CWA.
(Id. at 11-12.) Likewise, Plains Southcap characterizes its modifications to the project as
“eliminat[ing] most of the ground level stream crossings” (doc. 46, at 11), not all of them.
Certainly, defendants have not offered evidence – and the record does not unequivocally
establish – that no stream crossings within the Hamilton Creek watershed were ultimately
performed using the traditional trench excavation techniques (producing discharges of dredged
and fill material in waterways), as opposed to HDD techniques (producing no such discharges).
Reasonable inferences from the record, and from defendants’ own statements, are to the contrary.
5

This statement is consistent with the Corps’ previous representations. Indeed, in
an e-mail dated November 28, 2012, a Corps representative explained to Plains Southcap that
“directional drilling where there are no impacts to 404 wetlands or streams (complete avoidance)
is a non-regulated activity.” (AR 876.)

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At any rate, the Alabama portion of the pipeline project has been completed and the
pipeline is now operational. (Lee Aff. (doc. 45-2), ¶ 2 (“Plains Southcap has constructed and
now operates and approximately 41 mile long interstate pipeline that transports crude oil ….”).)
Plains Southcap shows that construction of the Alabama portion of the pipeline commenced in
March 2013, and was completed in March 2014, some two months after Baykeeper initiated this
lawsuit. (Id., ¶ 4.)
III.

Summary Judgment Standard.
Summary judgment should be granted only “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Rule
56(a), Fed.R.Civ.P. The party seeking summary judgment bears “the initial burden to show the
district court, by reference to materials on file, that there are no genuine issues of material fact
that should be decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991).
Once the moving party has satisfied its responsibility, the burden shifts to the non-movant to
show the existence of a genuine issue of material fact. Id. “If the nonmoving party fails to make
'a sufficient showing on an essential element of her case with respect to which she has the burden
of proof,' the moving party is entitled to summary judgment.” Id. (quoting Celotex Corp. v.
Catrett, 477 U.S. 317 (1986)) (footnote omitted). “In reviewing whether the nonmoving party
has met its burden, the court must stop short of weighing the evidence and making credibility
determinations of the truth of the matter. Instead, the evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his favor.” Tipton v. Bergrohr GMBHSiegen, 965 F.2d 994, 999 (11th Cir. 1992) (internal citations and quotations omitted).
“Summary judgment is justified only for those cases devoid of any need for factual
determinations.” Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1016 (11th Cir. 1987)
(citation omitted).
Here, all parties have moved for summary judgment on all claims, in accordance with a
special scheduling order that the parties jointly proposed.6 The law is clear that “[t]he applicable

6

On April 23, 2014, the parties jointly filed a document requesting relief from the
Preliminary Scheduling Order and stating that “[t]he parties anticipate that Plaintiff’s claims will
be resolved on cross-motions for summary judgment on the basis of the AR.” (Doc. 28, at 2.)
This Court granted the joint motion and entered a comprehensive briefing schedule governing
the anticipated cross-motions for summary judgment, in accordance with the parties’ request.
(Continued)
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Rule 56 standard is not affected by the filing of cross-motions for summary judgment.” Smith v.
Seaport Marine, Inc., 981 F. Supp.2d 1188, 1193 (S.D. Ala. 2013) (citations omitted). Indeed,
“[c]ross-motions for summary judgment will not, in themselves, warrant the court in granting
summary judgment unless one of the parties is entitled to judgment as a matter of law on facts
that are not genuinely disputed.” United States v. Oakley, 744 F.2d 1553, 1555 (11th Cir. 1984).
That said, it is also recognized that “cross-motions may be probative of the absence of a factual
dispute where they reflect general agreement by the parties as to the dispositive legal theories
and material facts.” Smith, 981 F. Supp.2d at 1193 (citations omitted). Such is the case here.
IV.

Analysis.
A.

Defendants’ Preliminary Objections to Baykeeper’s Claims.

Antecedent to reaching the merits of whether the Corps’ verification decisions as to the
Alabama portion of the Plains Southcap pipeline were in conformity with the CWA, the APA
and the Corps’ own rules, the Court pauses to address preliminary objections interposed by one
or more defendants relating to Baykeeper’s legal ability to maintain this action.
1.

Standing.

As an initial matter, Plains Southcap challenges whether Baykeeper can satisfy the
jurisdictional prerequisite of standing. “In order to establish that it has constitutional standing to
bring a suit: a plaintiff must show (1) it has suffered an ‘injury in fact’ that is (a) concrete and
particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly
traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision.” Florida Wildlife
Federation, Inc. v. South Florida Water Management Dist., 647 F.3d 1296, 1302 (11th Cir. 2011)
(citations omitted). “These requirements are the irreducible minimum required by the
Constitution for a plaintiff to proceed in federal court.” Houston v. Marod Supermarkets, Inc.,
733 F.3d 1323, 1329 (11th Cir. 2013) (citations omitted). Plains Southcap’s position is that
Baykeeper cannot meet the first and third elements.

(See doc. 30.) That approach allowed for the orderly, efficient briefing of all three competing
Rule 56 Motions, with a minimum of overlap and duplication and each party being granted a full
and fair opportunity to be heard on the relative merits of its own and each other’s summary
judgment arguments.

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With regard to the “injury in fact” requirement, binding authority teaches that “[a]n injury
in fact cannot be an abstract injury,” but must instead involve “some type of cognizable harm,
whether such harm is physical, economic, reputational, contractual, or even aesthetic.” Koziara
v. City of Casselberry, 392 F.3d 1302, 1305 (11th Cir. 2004). Moreover, for a plaintiff (such as
Baykeeper) seeking only injunctive and declaratory relief, this element requires proof of “not
only an injury, but also a real and immediate threat of future injury in order to satisfy the injury
in fact requirement.” Id. (citation and internal quotation marks omitted); see also Houston, 733
F.3d at 1329. Plains Southcap posits that Baykeeper’s members’ fear of a breach to the pipeline
causing spilled oil to reach Big Creek Lake is too contingent and speculative to give rise to
standing.
Plains Southcap’s objection is unpersuasive for at least two reasons. First, it focuses
exclusively on the risk of oil spill, without acknowledging (much less discussing) the various
other injuries identified by Baykeeper’s members as a means of achieving organizational
standing.7 It is well-settled that “environmental plaintiffs adequately allege injury in fact when
they aver they use the affected area and are persons for whom the aesthetic and recreational
values of the area will be lessened by the challenged activity.” Sierra Club v. Johnson, 436 F.3d
7

For example, Baykeeper member Thayer Boswell Dodd, who lives, recreates and
owns a business in the Big Creek Lake watershed, stated in her declaration that she was
“concerned about the consequences of pipeline construction … on the flora and fauna” in the Big
Creek Lake area. (Thayer Dodd Decl. (doc. 39, Exh. 3), ¶ 13.) She also stated that pipeline
construction activities “will negatively impact native flora and fauna” and that her “personal
enjoyment will be diminished by noise, aesthetic blight and traffic from construction.” (Id., ¶
14.) Similarly, Baykeeper member Jeffrey Charles Deuschle, who also lives and routinely
recreates in the Big Creek Lake watershed, expressed concern that his “aesthetic interests in Big
Creek Lake will be harmed by construction of the Plains Pipeline …. Construction of the Plains
Pipeline will harm the watershed by impacting streams and degrading wetlands.” (Deuschle
Decl. (doc. 39, Exh. 1), ¶ 14.) And Baykeeper’s executive director asserted that “[c]onstruction
of the Pipeline and maintenance of a permanent right of way will degrade wetlands and impact
streams, including Hamilton Creek, in the Big Creek Lake watershed.” (Callaway Decl. (doc.
47, Exh. A), ¶ 5.) Of course, it is appropriate to examine the interests of Baykeeper’s members
in assessing whether Baykeeper itself has standing to sue. See, e.g., Friends of the Earth, Inc. v.
Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610
(2000) (“An association has standing to bring suit on behalf of its members when its members
would otherwise have standing to sue in their own right, the interests at stake are germane to the
organization’s purpose, and neither the claim asserted nor the relief requested requires the
participation of individual members in the lawsuit.”) (citation omitted).

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1269, 1279 (11th Cir. 2006) (citations and internal quotation marks omitted). Even setting aside
the oil spill allegations, Baykeeper has made just such a showing here. Second, Plains
Southcap’s argument that Baykeeper has not shown an injury in fact because the risk of an oil
spill is speculative is inconsistent with authority recognizing that this requirement may be
satisfied in the context of probabilistic and contingent injuries such as the risk of a ruptured
pipeline causing an oil spill. See, e.g., Mountain States Legal Foundation v. Glickman, 92 F.3d
1228, 1234 (D.C. Cir. 1996) (“we do not understand the customary rejection of ‘speculative’
causal links … as ruling out all probabilistic injuries”).8 For these reasons, the Court does not
credit Plains Southcap’s assertion that Baykeeper has failed to show the requisite injury in fact to
establish Article III standing.
As for redressability, the Court finds that Baykeeper has made a sufficient showing to
establish this element of constitutional standing, as well. That the Alabama portion of the
8

See also Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d
149, 160 (4 Cir. 2000) (“Threats or increased risk thus constitutes cognizable harm. Threatened
environmental injury is by nature probabilistic. And yet other circuits have had no trouble
understanding the injurious nature of risk itself.”); Village of Elk Grove Village v. Evans, 997
F.2d 328, 329 (7th Cir. 1993) (where city sued to block construction of radio tower that would
increase risk of flooding, “[t]he injury is of course probabilistic, but even a small probability of
injury is sufficient to create a case or controversy – to take a suit out of the category of the
hypothetical – provided of course that the relief sought would, if granted, reduce the
probability”); Ouachita Riverkeeper, Inc. v. Bostick, 938 F. Supp.2d 32, 42 (D.D.C. 2006)
(finding injury-in-fact requirement satisfied where presence of pipeline near organization
member’s property created increased risk of leaks which could damage member’s property,
inasmuch as increased susceptibility to harms is sufficient to satisfy injury requirement).
Although Plains Southcap relies on NO Gas Pipeline v. F.E.R.C., 756 F.3d 764 (D.C. Cir. 2014),
that case is distinguishable. In NO Gas, three environmental groups sued to stop a natural gas
transportation pipeline, alleging an injury in fact based on higher exposure to radon. The D.C.
Circuit shot down this basis for Article III standing, reasoning as follows: “The increased risk to
their health is something that may occur if the pipeline or the pipeline suppliers tap into gas that
has more radon than the current mix; nothing occurs to alleviate any increased radon in that case;
the radon does not become diluted by mixing with other gas; and the radon in fact reaches and
permeates their homes.” Id. at 768. By contrast, Baykeeper’s members have adequately
established that they would suffer an injury in fact by any rupture in the oil pipeline along the
Big Creek Lake watershed, whether or not anything else happened (i.e., whether spilled oil
actually reached the Lake itself or the public water supply intake therein). This case is thus
substantially removed from the far-fetched, repetitious stacking of one highly unlikely
contingency atop another until a hypothetical harm is conjured up, as was deemed
jurisdictionally inadequate in NO Gas.
th

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pipeline has been completed and is now operational does not render Baykeeper’s alleged injury
incapable of redress. See, e.g., City of Dania Beach, Fla. v. F.A.A., 485 F.3d 1181, 1186 (D.C.
Cir. 2007) (“We also hold that petitioners’ injuries are redressable in this suit. An agency action
that is taken without following the proper environmental review procedures can be set aside by
this Court and remanded to the agency for completion of the review process.”); Summit Lake
Paiute Tribe of Nevada v. U.S. Bureau of Land Management, 496 Fed.Appx. 712, 714 (9th Cir.
Oct. 22, 2012) (where tribe challenged agency’s decision granting pipeline permits, and pipeline
construction was complete, “effective relief is still available as long as the ongoing effects the
pipeline continues to have on the Tribe’s cultural property … can be mitigated”); Ouachita
Riverkeeper v. Bostick, 938 F. Supp.2d 32, 44 (D.D.C. 2013) (plaintiff maintained standing, even
after pipeline was operational, because “[t]he threat to Mr. Calaway’s property remains, and the
Defendant-Intervenors do not even attempt to show that the risk of leaks cannot be remedied at
this stage”). In short, after consideration of the parties’ respective arguments concerning
standing, the undersigned is not persuaded that the injuries claimed by Baykeeper’s members
cannot be redressed following completion of construction of the pipeline; to the contrary, it
appears that some form of effective relief could be fashioned (whether by this Court or by the
Corps on remand) to reduce aesthetic injuries to Baykeeper members, to mitigate risk of leakage,
and so on.9
Based on the above, the Court overrules Plains Southcap’s objections to Baykeeper’s
standing to pursue this lawsuit. On the record presented here, Baykeeper has shown an injury in
fact that is fairly traceable to the Corps’ verification decisions and that could be redressed in the
event of a favorable outcome here. Plaintiff has established Article III standing.
2.

Mootness as to Stream Crossings.

Both the Corps Defendants and Plains Southcap have invoked the doctrine of mootness
as a means of narrowing the issues in this case. In particular, the Corps explains that Plains
Southcap’s modification of the project in early 2014 to utilize horizontal directional drilling
(“HDD”) for various stream crossings in the Hamilton Creek watershed removes those activities
9

Insofar as Plains Southcap’s redressability argument is based on subsequent
design modifications for the pipeline that did not require Corps verification, that issue is
addressed infra in the context of a mootness analysis.

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from the Corps’ jurisdiction. As will be explained in detail in § IV.B., infra, the Corps’
verification decisions here were made pursuant to Section 404 of the CWA. That provision
authorizes the Corps to issue permits for the discharge of dredged or fill material into navigable
waters of the United States. But HDD involves installing pipeline far beneath the streams, with
no trench excavation or surface disturbance at the crossings; therefore, there is no dredged or fill
material discharged in waterways by these HDD techniques.10 Defendants’ argument, then, is
that the Corps lacked jurisdiction to regulate, approve, verify, disqualify, or reject Plains
Southcap’s HDD stream crossings because they fall outside of the scope of the Corps’ § 404
permitting authority. On that basis, the Corps Defendants maintain that “there is nothing for the
Court to review with regard to those stream crossings and no relief for the Court to award, and
therefore Baykeeper’s claims regarding the crossing of streams in the Hamilton Creek watershed
are moot.” (Doc. 43, at 11.)
The Eleventh Circuit has opined that “[a]n issue is moot when it no longer presents a live
controversy with respect to which the court can give meaningful relief.” Friends of Everglades
v. South Florida Water Management Dist., 570 F.3d 1210, 1216 (11th Cir. 2009) (citations and
internal quotation marks omitted). “To decide a moot issue is to issue an advisory opinion, one
unnecessary to the judicial business at hand and outside the authority of Article III courts.” Id.
Thus, “[i]f events that occur subsequent to the filing of a lawsuit … deprive the court of the
ability to give the plaintiff … meaningful relief, then the case is moot and must be dismissed.”
Defenders of Wildlife v. Bureau of Ocean Energy Management, Regulation, and Enforcement,
791 F. Supp.2d 1158, 1165 (S.D. Ala. 2011) (citations omitted).
As noted, the gravamen of Baykeeper’s Complaint is that the Corps’ January 2013
verifications of the Alabama portion of the pipeline violated the CWA, the APA and governing
rules and regulations. When those verifications were issued, Plains Southcap’s announced
design involved numerous stream crossings in the Hamilton Creek watershed to be accomplished
10

Without objection or dissent from plaintiff, Plains Southcap summarizes the HDD
method as follows: “[A]t many of the stream crossings in the watershed the pipe is now buried
80 to 120 feet below the surface. Two consequences of this HDD process are these: First, there
are not true ‘crossings’ of these waterways, since the pipe passes far beneath the streams; second,
the HDD installation is accomplished by boring a tunnel from an entry point to an exit point with
no surface disturbance along the span.” (Doc. 46, at 7-8.)

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by digging shallow trenches, thereby producing dredged or fill material that would be discharged
(at least temporarily) into waterways.11 It is undisputed, however, that (i) Plains Southcap
actually built the pipeline using HDD techniques that eliminated certain of those stream
crossings by burying the pipeline dozens of feet below the watercourses; (ii) HDD techniques are
not subject to Corps regulation under § 404 of the CWA because they do not result in the
discharge of dredged or fill material in territorial waters (i.e., HDD did not involve excavation of
a trench or the temporary side cast of material from the trench into waters of the United States
during installation of the pipeline); and (iii) the January 2013 verifications were unnecessary and
irrelevant to those crossings achieved via HDD.12 This Court cannot order the Corps to revisit
the propriety of the pipeline’s stream crossings in the Hamilton Creek watershed using HDD
methods because, again, those activities fall outside the Corps’ jurisdiction conferred by § 404 of
the CWA, in that they do not involve discharge of dredged or fill materials in U.S. waters.
Furthermore, directing the Corps to rescind or re-examine the January 2013 verifications it
granted for trench excavation at stream crossings would be a hollow, empty, meaningless

11

Indeed, the Corps’ January 2013 Decision Document explained that the Corps’
involvement in the matter was because “the pipeline project will result in the temporary
trenching of 22 stream crossings, and the mechanized land-clearing, temporary trenching and
side-casting of fill, ….” (AR 1005.) The diagrams at AR 1032-34 depict the “Trench and Spoil
Side Method,” as well as two waterbody crossing methods involving trench excavation and the
temporary deposit of “spoil” near the waterbody’s banks, that Plains Southcap originally
intended to use to lay the pipeline at the crossings.
12

Plaintiff excoriates defendants for their failure to submit evidence to prove that
Plains Southcap actually used HDD methodology for the subject stream crossings. (See doc. 47,
at 11.) Certainly, it would have been extraordinarily helpful for defendants to present specific
evidence in the summary judgment record (as contrasted with the administrative record)
documenting how the project was ultimately constructed, rather than relying on the ipse dixit of
counsel. Nonetheless, there is uncontroverted evidentiary support for defendants’
representations in the court file, in the form of written correspondence between Plains Southcap
and the Corps in February 2014. (See docs. 34-1 & 34-2.) These exhibits (which defendants
have cited in their summary judgment submissions) confirm that Plains Southcap had modified
the pipeline design to incorporate HDD techniques for certain stream crossings in the Hamilton
Creek watershed. The sole reasonable inference to be drawn from that correspondence is that
Plains Southcap in fact constructed the pipeline in accordance with those modified plans as
described to the Corps in the February 2014 letters. Plaintiff has not raised a whiff of a
suggestion (much less any evidence) to the contrary.

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exercise as to crossings where the pipeline was ultimately built using HDD techniques rather
than conventional trench-and-spoil methods.
These circumstances epitomize the mootness doctrine. The Court cannot provide
Baykeeper with effective relief as to its statutory and regulatory challenges of Corps verifications
pertaining to stream crossings that Plains Southcap ultimately accomplished using horizontal
directional drilling. The Corps is not empowered to regulate those HDD activities. And the
verifications that the Corps issued for trenches to be dug at those stream crossings are now
superfluous because those crossings were actually completed in a manner that involved no
trenches, no discharge of dredged or fill material into United States waters and, hence, no
activities for which Corps approval was needed. To the extent, then, that Baykeeper is asking
this Court to prescribe relief for waterway crossings ultimately accomplished by means of HDD
techniques that neither produced dredged/fill material in territorial waters nor otherwise fell
within the Corps’ regulatory purview, plaintiff’s claims are moot.13
The Corps Defendants’ mootness argument is compelling, as far it goes; however, it does
not dispose of the entire case, for several reasons. First, the summary judgment record does not
establish that Plains Southcap replaced the trenching methodology with HDD as to all stream
13

In response, Baykeeper invokes the doctrine of voluntary cessation, which is an
exception to the general rule of mootness. “It is well settled that a defendant’s voluntary
cessation of a challenged practice does not deprive a federal court of its power to determine the
legality of the practice.” Jacksonville Property Rights Ass’n, Inc. v. City of Jacksonville, FL, 635
F.3d 1266, 1275 (11th Cir. 2011) (citations omitted). That exception does not fit the
circumstances of this case. Baykeeper is not challenging a Corps “practice” of doing or not
doing anything; rather, it is challenging a singular, discrete set of verification decisions made on
a particular date for a particular project. Besides, the Corps did not cease doing anything; rather,
it made a verification decision, then notified Plains Southcap that no verification was needed for
stream crossings to be accomplished by HDD without discharging dredged or fill material. Thus,
this is simply not a case in which the Corps “is attempting to manipulate the court’s jurisdiction
to insulate a favorable decision from review,” Harrell v. The Florida Bar, 608 F.3d 1241, 1266
(11th Cir. 2010) (citation and internal marks omitted), which is the point of the voluntary
cessation doctrine in the first place. See Jacksonville Property, 635 F.3d at 1275 (voluntary
cessation exception to mootness is needed because “[o]therwise, a party could moot a challenge
to a practice simply by changing the practice during the course of the lawsuit, and then reinstate
the practice as soon as the litigation was brought to a close”) (citation omitted). There is no
challenged Corps “practice” here, and the Corps changed nothing after the inception of this
lawsuit; therefore, voluntary cessation principles cannot preserve Baykeeper’s claims from
mootness.

-13-

crossings along Hamilton Creek or in the Big Creek Lake watershed in Mobile County. Plains
Southcap’s February 2014 letter to the Corps references its decision “to increase the length of the
HDD under Hamilton Creek and to install two other segments of the pipeline in the area of the
Hamilton Creek watershed by HDD” (doc. 34-1, at 2), but does not specify whether all Alabama
stream crossings are being eliminated. The Corps’ response to that letter recognizes that no
permit or verification is needed for HDD activities, but also states, “Your previous authorization
under Nationwide 12 for the remainder of the crossings remains in effect.” (Doc. 34-2, at 1
(emphasis added).) Certainly, as of February 28, 2014, the Corps was under the impression that,
even after taking into account the project modifications, Plains Southcap would still be engaging
in “crossings” as to which NWP 12 authorization was needed. More broadly, defendants submit
no record facts to the Court identifying the extent to which the previously approved trench
excavation stream crossings were replaced by HDD in the final project design. The Court will
not simply assume or guess that all stream crossings were eliminated, particularly where the only
record evidence indicates otherwise.
Second, as plaintiff correctly points out, defendants’ briefs leave considerable ambiguity
on this point. Plains Southcap uses equivocal language in describing the project modifications,
using statements such as the following: (i) “at many of the stream crossings in the watershed the
pipe is now buried 80 to 120 feet below the surface” (doc. 46, at 7-8); (ii) “[t]hose changes
eliminated most of the ground level stream crossings” (id. at 11). Words like “many” and
“most” are not synonymous with “all,” and defendants’ subsequent attempts to explain away this
terminology cannot carry the day in a Rule 56 analysis.14
Third, and most fundamentally, all parties appear to be in agreement that, irrespective of
the use of HDD to install the pipeline at various stream crossings in the area of concern, Plains
14

In particular, the Corps Defendants interpret Plains Southcap’s statements as
“concern[ing] the entire pipeline, which includes some stream crossings that are not in the
Hamilton Creek watershed.” (Doc. 49, at 2.) But Plains Southcap has offered no such
explanation for its representations. More importantly, no one has explained why, in the context
of briefing in litigation concerned solely with environmental effects in the Big Creek Lake /
Hamilton Creek watershed, the intervenor-defendant would be writing about stream crossings in
other places beyond the boundaries of that litigation. Once again, no party has directed the Court
to any evidence that might clarify this important factual point as to the extent to which watershed
stream crossings were performed via HDD rather than trench excavation.

-14-

Southcap still engaged in activities within the Big Creek Lake / Hamilton Creek watershed that
required Corps verification under § 404 of the CWA.15 As to those activities, the parties’ dispute
is very much a live controversy. For Plains Southcap’s pipeline construction activities within the
watershed that are covered by § 404, Baykeeper’s claims pertaining to the Corps’ verification
decision under NWP 12 are not moot because Baykeeper is challenging the project as it was
actually completed, is challenging activities within the Corps’ jurisdiction, and is raising
challenges as to which some measure of remedial relief could be fashioned if Baykeeper were to
prevail. Accordingly, while Defendants’ mootness arguments do resonate with regard to a
portion of the construction project (i.e., Plains Southcap’s claims concerning Corps verifications
of stream crossings that were ultimately accomplished via HDD, and therefore outside the Corps’
jurisdiction), they neither obviate nor require dismissal of the entire lawsuit.16

15

See doc. 43, at 11 (“The Corps notes that some permitted activities in the
Hamilton Creek watershed remain. These activities involve the removal of vegetation in
wetlands and temporary discharges of dredged or fill materials into wetlands associated with the
construction of trenches where the pipeline crosses wetlands.”); doc. 47, at 13-14 (“It is
undisputed that Plains has not avoided all the stream and wetlands impacts in the Big Creek Lake
watershed … [T]here are still substantial portions of wetlands and stream crossings in the Big
Creek Lake watershed that remain under the Corps’ jurisdiction, as far as Baykeeper has been
able to discern.”); doc. 49, at 3 (“Some wetland crossings do remain, which are subject to the
Corps’ verification of the applicability of Nationwide Permit (‘NWP’) 12.”).
16

It is no answer to argue, as the Corps Defendants do, that “Baykeeper has never
made any claim that these [wetland] crossings pose a risk to the drinking water intake.” (Doc.
49, at 3.) All appearances are to the contrary. For example, in its principal summary judgment
brief, Baykeeper asserts that “[i]f the Corps were to decide that these stream crossings and
wetland impacts were within proximity to the [public water intake], then, due to General
Condition 7, the Corps would be barred from verifying those crossings and wetlands impacts
under NWP 12.” (Doc. 39, at 16 (emphasis added).) The Corps Defendants’ conclusory
suggestion that Baykeeper’s suit is not predicated on verification of wetlands crossings in the
Hamilton Creek watershed thus appears counterfactual. Defendants have provided the Court
with no reason to believe that Baykeeper’s legal arguments concerning the pipeline’s stream
crossings (i.e., proximity to public water supply intake, public interest, environmental impacts)
do not apply with equal force to wetlands activities of the same project. To be sure, the Corps
Defendants may be correct that “Baykeeper makes no specific claims with regard to these
trenched pipeline segments” (doc. 43, at 12), but Baykeeper’s legal arguments do not exclude
those segments; rather, by all appearances, they apply equally to all.

-15-

3.

Laches.

As a final preliminary issue before reaching the merits, Plains Southcap objects that
Baykeeper’s claims are barred by principles of laches. “Laches is an equitable doctrine that bars
a plaintiff’s claims if granting his requested remedy would be inequitable due to his delay in
filing suit.” Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Engineers, --- F. Supp.2d ---, 2014 WL 2123200, *8 (N.D. Ala. May 21, 2014). “To apply laches in a particular case, the
court must find both that the plaintiff delayed inexcusably in bringing the suit and that this delay
unduly prejudiced defendants.” Howard v. Roadway Exp., Inc., 726 F.2d 1529, 1532 (11th Cir.
1984) (citation omitted); see also Black Warrior, 2014 WL 2123200, at *8 (“Laches applies
when the moving party shows (1) a delay in asserting a right or claim; (2) that the delay was not
excusable; and (3) that there was undue prejudice to the party against whom the claim is
asserted.”) (citation and internal quotation marks omitted). Whether to apply laches in a
particular case is a decision left to the discretion of the trial court. See, e.g., Watz v. Zapata OffShore Co., 500 F.2d 628, 633-34 (5th Cir. 1974) (“We recognize that because laches is a creature
of equity the trial judge enjoys a wide area of discretion.”); Murray v. Sevier, 993 F. Supp. 1394,
1404 (M.D. Ala. 1997) (“Laches is an equitable doctrine committed to the sound discretion of
the trial court.”) (citation omitted).
In exercising that discretion, the Court is cognizant that, although the Eleventh Circuit
has not weighed in on this point, numerous other federal authorities have classified laches as a
disfavored defense in the environmental context. See, e.g., Save the Peaks Coalition v. U.S.
Forest Service, 669 F.3d 1025, 1031 (9th Cir. 2012) (“Because environmental damage does not
inflict harm only on the plaintiff, laches is strongly disfavored in environmental cases.”).17 The

17

See also Daingerfield Island Protective Soc. v. Lujan, 920 F.2d 32, 38 (D.C. Cir.
1990) (“Nearly every circuit … and numerous district courts have recognized the salutary
principle that laches must be invoked sparingly in environmental cases because ordinarily the
plaintiff will not be the only victim of alleged environmental damage. A less grudging
application of the doctrine might defeat Congress’s environmental policy.”) (citations and
internal marks omitted); Jicarilla Apache Tribe v. Andrus, 687 F.2d 1324, 1337-38 (10th Cir.
1982) (“The defense of laches is available in environmental litigation but is disfavored because
of the interests of the public in environmental quality and because the agency would escape
compliance with NEPA if laches were generally applied, thus defeating Congress’ environmental
policy.”); Animal Welfare Institute v. Martin, 588 F. Supp.2d 70, 94 (D. Me. 2008) (“In general,
the doctrine is disfavored in environmental cases, where the purported injury is commonly not
(Continued)
-16-

undersigned finds the rationale of those decisions compelling; therefore, Plains Southcap’s
laches argument will be evaluated subject to the judicial gloss of its disfavored status.
With regard to the factor of inexcusable delay, the record establishes the following
relevant chronology: Baykeeper first learned of the proposed Plains Southcap pipeline in
summer 2013. (Callaway Decl. (doc. 47, Exh. A), ¶ 7.) Shortly after Baykeeper became aware
of the pipeline, it began monitoring ongoing litigation between Plains Southcap and the Mobile
Area Water and Sewer System (the “MAWSS Litigation”) whose outcome might prevent the
pipeline from being routed through the Big Creek Lake watershed. (Id., ¶ 9.)18 Baykeeper
learned in September 2013 that MAWSS had initially prevailed in that lawsuit, such that “it
appeared that Plains would not be able to construct the pipeline through the watershed.” (Id., ¶
10.) Plains Southcap appealed that adverse ruling in the MAWSS Litigation, and obtained a
reversal in Mobile County Circuit Court in December 2013. (Id., ¶¶ 11-12.) Baykeeper
understood from public statements in December 2013 and early January 2014 that MAWSS
intended to appeal from the Circuit Court ruling, and that no construction of the pipeline on
MAWSS property (the precise area of concern to Baykeeper) had yet commenced. (Id., ¶¶ 1314.) Nonetheless, Baykeeper proceeded to file this lawsuit against the Corps Defendants on
January 24, 2014 (see doc. 1), prior to Plains Southcap beginning construction in the challenged
area and more than a month before entry of final judgment in the MAWSS Litigation. These
facts and circumstances readily establish that Baykeeper did not delay inexcusably in

limited to the party bringing suit.”); Pamlico-Tar River Foundation v. U.S. Army Corps of
Engineers, 329 F. Supp.2d 600, 612 (E.D.N.C. 2004) (“Laches is disfavored in environmental
cases.”); Sierra Club v. Pena, 915 F. Supp. 1381, 1394 (N.D. Ohio 1996) (“Laches is a
disfavored defense in environmental litigation because the outcome of the suit affects more
people than the named plaintiffs.”); Natural Resources Defense Council, Inc. v. Fox, 909 F.
Supp. 153, 160 (S.D.N.Y. 1995) (“[L]aches is no defense in a suit to enforce a public right or
protect the public interest. … Because a citizen suit to enforce a non-discretionary duty of the
Administrator [of the EPA] is a suit to protect the public interest, laches does not apply.”).
18

The MAWSS Litigation was filed in state court and litigated initially in Mobile
County Probate Court. The Court’s understanding is that Plains Southcap sought condemnation
of MAWSS property in the watershed along the pipeline route, but that MAWSS resisted such
efforts based on environmental concerns arising from the planned placement of a crude oil
pipeline near the region’s drinking water supply.

-17-

commencing this lawsuit against the Corps Defendants; therefore, the Court finds in its
discretion that the doctrine of laches is inapplicable.19

19

In so concluding, the Court has carefully considered Plains Southcap’s
counterarguments. For example, Plains Southcap suggests that Baykeeper inexecusably delayed
when it “stood by and watched MAWSS battle the pipeline” instead of filing its own lawsuit
right away. (Doc. 50, at 11.) To accept Plains Southcap’s position would be to champion the
(potentially unnecessary and wasteful) proliferation of lawsuits. As of September 2013 – shortly
after Baykeeper learned of the pipeline route – a ruling in the MAWSS Action effectively barred
Plains Southcap from constructing the pipeline on that route. Under the circumstances, it would
have been inefficient, duplicative and pointless for Baykeeper to file its own lawsuit to attempt to
stop the pipeline at that time (just in case any MAWSS Action appeals went the other way),
because Plains Southcap was already laboring under a ruling that would not allow it to go
forward with construction. Baykeeper’s delay from September through December 2013 (when
the state-court ruling was reversed) was neither unreasonable nor inequitable. Next, Plains
Southcap lambastes Baykeeper for not filing a motion for preliminary injunction at the outset of
this action. But the Eleventh Circuit has construed the doctrine of laches as requiring “that the
plaintiff delayed inexcusably in bringing the suit,” Howard, 726 F.2d at 1532 (emphasis added),
not that the plaintiff delayed in moving for expedited injunctive relief after suit was underway.
This distinction is quite reasonable, given the equitable purposes of the doctrine. If a plaintiff
waits to sue until after an entity has completed the challenged action, that could be unfair and
inequitable because the entity is blindsided after having already expended time, money and
resources on the challenged action. However, if a plaintiff files suit before the entity has taken
the challenged action (as was the case here), the entity is on notice of the ongoing legal efforts to
block or undo such action. There is no unfair surprise. If the entity decides to go forward with
those activities despite the pending legal action (as Plains Southcap did here), it has taken a
calculated risk that it will prevail in the lawsuit and cannot then be heard to cry foul (as Plains
Southcap now does) that the plaintiff should have done something more to restrain the entity
from moving forward during the pendency of the suit.
Stated plainly, before it ever dug the first trench in the condemned MAWSS lands in the
Big Creek Lake watershed, Plains Southcap knew that Baykeeper was suing to require further
Corps review of the pipeline project. Plains Southcap knew that if Baykeeper succeeded, the
result could be extreme and expensive modifications, potentially including rerouting of the
pipeline outside the watershed. Despite that knowledge, Plains Southcap went forward with
business as usual, proceeding with the construction project in the watershed as if this lawsuit did
not exist. That decision was certainly Plains Southcap’s prerogative. But it forecloses any
reasonable argument by Plains Southcap that equity bars Baykeeper from continuing with this
lawsuit now that the pipeline is done. In essence, Plains Southcap is maintaining that this case
should be dismissed because Baykeeper did not save Plains Southcap from itself (or, more
accurately, its own risky decision-making) by filing a motion for preliminary injunction at the
outset of this case. The equities do not favor, and cannot support, such an outcome.

-18-

B.

The CWA Verification Framework and NWP 12.

Having dispensed with these lengthy preliminaries, the Court now turns to the heart of
the matter, which is whether the Corps complied with its legal obligations in issuing the January
2013 verifications for the pipeline project.
To place this dispute in context, it is critically important to understand the regulatory
framework in which the Corps was operating in connection with the subject verifications. The
Clean Water Act provides that the Corps “may issue permits, after notice and opportunity for
public hearings[,] for the discharge of dredged or fill material into the navigable waters” of the
United States. 33 U.S.C. § 1344(a); see also Save Our Community v. U.S. E.P.A., 971 F.2d
1155, 1162 n.13 (5th Cir. 1992) (“the CWA allocates responsibility to the Corps to issue permits
for the discharge of dredged or fill material into navigable waters pursuant to section 404”). The
statute does not restrict the Corps to issuance of individual permits on an activity-by-activity
basis; rather, Congress authorized the Corps to issue general permits on a nationwide basis for
certain categories of activities involving discharges of dredged or fill material. See 33 U.S.C. §
1344(e)(1) (“the Secretary may, after notice and opportunity for public hearing, issue general
permits on a State, regional, or nationwide basis for any category of activities involving
discharges of dredged or fill material if the Secretary determines that the activities in such
category are similar in nature, will cause only minimal adverse environmental effects when
performed separately, and will have only minimal cumulative adverse effect on the
environment”). Such general permits remain in effect for up to five years, and are subject to
revocation or modification by the Corps. Id. § 1344(e)(2).
In reliance on this Congressional directive, the Corps has issued a number of nationwide
permits (“NWPs”), which “are designed to regulate with little, if any, delay or paperwork certain
activities having minimal impacts. The NWPs are proposed, issued, modified, reissued
(extended), and revoked from time to time after an opportunity for public notice and comment.”
33 C.F.R. § 330.1(b). Some (but not all) NWPs require the permittee to provide advance
notification to the Corps before engaging in an activity that it believes to be within the scope of
the NWP. In that event, the Corps’ District Engineer (“DE”) “will review the notification and
may add activity-specific conditions to ensure that the activity complies with the terms and
conditions of the NWP and that the adverse impacts on the aquatic environment and other
aspects of the public interest are individually and cumulatively minimal.” 33 C.F.R. §

-19-

330.1(e)(2); see also 33 C.F.R. § 330.6(a)(3)(i) (“The DE may add conditions on a case-by-case
basis to clarify compliance with the terms and conditions of an NWP or to ensure that the
activity will have only minimal individual and cumulative adverse effects on the environment,
and will not be contrary to the public interest.”). This review process may culminate in the DE
issuing a verification to the permittee, thereby allowing the activity to move forward.
The nationwide permit of interest in this case is NWP 12, which the Corps issued on
February 21, 2012. See 77 Fed. Reg. 10,184. By its terms, “[t]his NWP authorizes the
construction, maintenance, or repair of utility lines … and the associated excavation, backfill, or
bedding for the utility lines, in all waters of the United States, provided there is no change in preconstruction contours.” 77 Fed. Reg. 10,271. NWP 12 requires the permittee to submit preconstruction notification (“PCN”) to the Corps if certain criteria are present, and it is undisputed
that Plains Southcap was subject to (and complied with) the PCN requirement in this case.
The applicable Corps rule specifies that “[t]o qualify for NWP authorization, the
prospective permittee must comply with … general conditions” enumerated therein. 77 Fed.
Reg. 10,282. The agency rule enumerates 31 general conditions. Of those, General Condition 7
provides, in relevant part, that “[n]o activity may occur in the proximity of a public water supply
intake.” Id. at 10,283. And General Condition 31 states that “[i]n reviewing the PCN for the
proposed activity, the district engineer will determine whether the activity authorized by the
NWP will result in more than minimal individual or cumulative adverse environmental effects or
may be contrary to the public interest.” Id. at 10,287. General Conditions 7 and 31 lie at the
heart of Baykeeper’s legal challenges herein.
C.

Whether the Verifications were Arbitrary and Capricious.

Baykeeper identifies three purported deficiencies with the Corps’ verification decisions
pursuant to the above-described statutory and regulatory framework, to-wit: (i) the Corps failed
to consider whether the pipeline was in proximity to the public water supply intake (as required
by General Condition 7); (ii) the Corps failed to consider whether the pipeline was contrary to
the public interest (as required under NWP 12 and General Condition 31); and (iii) the Corps
failed to provide a reasoned explanation for its determination of minimal cumulative effects (as
required under General Condition 31 and the APA). (Doc. 39, at 16-25.) The parties’ crossmotions for summary judgment delineate their dueling positions as to each of these issues.

-20-

1.

Standard of Review.

As a threshold matter, the parties appear to be in agreement that judicial review of the
Corps’ verification decisions for the Plains Southcap pipeline is governed by the Administrative
Procedure Act’s deferential arbitrary and capricious standard. (See docs. 39, at 9-10; doc. 46, at
15-16.) Pursuant to that standard, a reviewing court may set aside agency action as unlawful
only if it is “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with
law.” 5 U.S.C. § 706(2)(A). The Corps’ challenged actions are reviewed for clear error, and this
Court cannot simply second-guess the agency’s judgment. See Sierra Club v. Johnson, 541 F.3d
1257, 1264 (11th Cir. 2008). “The court’s role is to ensure that the agency came to a rational
conclusion, not to conduct its own investigation and substitute its own judgment for the
administrative agency’s decision.” Sierra Club v. Van Antwerp, 526 F.3d 1353, 1360 (11th Cir.
2008). “This standard requires substantial deference to the agency, not only when reviewing
decisions like what evidence to find credible …, but also when reviewing drafting decisions like
how much discussion to include on each topic, and how much data is necessary to fully address
each issue.” Id. at 1361.
Notwithstanding the deferential nature of this process, however, “the court must also look
beyond the scope of the decision itself to the relevant factors that the agency considered.” Sierra
Club v. U.S. Army Corps of Engineers, 295 F.3d 1209, 1216 (11th Cir. 2002). A reviewing court
may “find an agency action arbitrary and capricious where the agency has relied on factors
which Congress has not intended it to consider, entirely failed to consider an important aspect of
the problem, offered an explanation for its decision 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.” Miccosukee Tribe of Indians of Florida v. United States, 566 F.3d 1257, 1264
(11th Cir. 2009) (citations omitted).20 The Court’s analysis proceeds in recognition of these
principles.
20

See also Black Warrior Riverkeeper, 2014 WL 2123200, at *10 (“An agency
action may be found arbitrary and capricious if the agency relied on inappropriate factors, failed
to consider important aspects, or provided explanations either contrary to the evidence or wholly
implausible.”); Ouachita Riverkeeper, 938 F. Supp. 2d at 39 (“An agency’s decision may be
arbitrary or capricious if: (i) its explanation runs counter to the evidence before the agency or is
so implausible that it could not be ascribed to a difference of view or the product of agency
expertise; (ii) the agency entirely failed to consider an important aspect of the problem or issue;
(Continued)
-21-

2.

Proximity to Public Water Supply Intake.

Baykeeper’s first claim that the Corps’ verification decisions under NWP 12 for the
Alabama portion of the Plains Southcap pipeline are arbitrary and capricious hinges on General
Condition 7. Recall that the Corps has exercised its authority under 33 U.S.C. § 1344(e)(1) to
issue a series of nationwide permits for the discharge of dredged or fill material into territorial
waters. One such nationwide permit is NWP 12, which authorizes “construction, maintenance,
or repair of utility lines … and the associated excavation, backfill, or bedding for the utility lines,
in all waters of the United States.” 77 Fed. Reg. 10,271. The Corps’ final rule on the nationwide
permit program provides that a permittee does not qualify under any nationwide permit
(including NWP 12) unless it complies with certain enumerated general conditions. General
Condition 7 specifies that “[n]o activity may occur in the proximity of a public water supply
intake.” Id. at 10,283.
Baykeeper seizes on this condition. A fundamental premise of this lawsuit is
Baykeeper’s contention that the Corps’ verification of the Plains Southcap pipeline is arbitrary
and capricious because “there is nothing in the Administrative Record that indicates the Corps
ever considered the public water supply intake,” yet the verified activities included “multiple
impacts less than two miles from a public water supply intake and less than one mile from a sole
source drinking water supply.” (Doc. 39, at 16.) Plaintiff’s position, then, is that the Corps was
obligated to consider proximity to public water supply intake before issuing NWP 12
verifications to Plains Southcap, yet it failed to do so. Had the Corps considered this factor,
Baykeeper reasons, it never would have issued those verifications, inasmuch as the Plains
Southcap pipeline was routed in proximity to the public water supply intake in violation of
General Condition 7.
To be clear, it is evident that the Corps did not consider whether the pipeline was in the
proximity of a public water supply intake on Big Creek Lake in issuing the challenged
verification decisions. The Corps does not profess to have done so. The Administrative Record
is devoid of documentation revealing that the Corps considered that factor or made any

(iii) the agency relied on factors which Congress did not intend the agency to consider; or (iv)
the decision otherwise constitutes a clear error of judgment.”).

-22-

“proximity” findings. In short, there is no indication in the court file that the Corps examined
whether Plains Southcap was in compliance with General Condition 7 before issuing the subject
verifications under NWP 12.21 Properly framed, then, the legal issue presented on summary
judgment is not whether the Corps’ “proximity” analysis in this case was sufficient, but whether
the Corps was obligated to examine proximity at all before issuing the challenged verifications.
On that point, the Corps Defendants’ unequivocal stance is that “the Corps is not required to
determine that the project will comply with General Condition 7 in verifying that it falls within
the scope of NWP 12.” (Doc. 49, at 5.) By contrast, Baykeeper embraces an opposite but
equally adamant position that “the Corps has simply failed to perform its legal duty” (doc. 47) to
assure compliance with General Condition 7 before issuing NWP 12 verifications to Plains
Southcap.
Both the parties’ briefs and the undersigned’s own research confirm that case authority
addressing this issue directly is sparse. The leading opinion is Snoqualmie Valley Preservation
Alliance v. U.S. Army Corps of Engineers, 683 F.3d 1155 (9th Cir. 2012). In that case, a plaintiff
challenging verifications issued under the nationwide permit program faulted the Corps for
failing to evaluate the project for compliance with all general conditions. The Snoqualmie Valley
court observed that the nationwide permit system was designed “to enable the Corps to quickly
reach determinations regarding activities that will have minimal environmental impacts ….
Requiring an elaborate analysis of the applicable regulations and the facts would defeat this
purpose.” Id. at 1163. The court continued that “even where pre-construction notification is
required, a permittee is not required in most cases to supply the Corps with information about
how the project will satisfy each general condition.” Id. at 1164. Furthermore, the panel
reasoned, because the general conditions at issue did not expressly place a burden on the
applicant to provide documentation to the Corps, “[w]ithout such documentation, it would be an
21

This is not a case in which the Corps made specific findings that the challenged
activity was not in proximity with the public drinking water supply intake; rather, the Corps
simply did not examine this issue. Plains Southcap’s assertion to the contrary is unsupported by
the Administrative Record. See doc. 46, at 14 (referencing what Plains Southcap calls “the
Corps’ decision that minor discharge activities located 2 miles or more away from public water
intake are not ‘in the proximity of’ that intake for purposes of General Condition 7”). There is
simply no record basis for the proposition that the Corps actually engaged in such a “proximity”
analysis here.

-23-

absurd result to require the Corps to evaluate and explain how [the permittee] will comply with
these conditions.” Id. On that basis, the Snoqualmie Valley court concluded as follows: “The
nationwide permit system is designed to streamline the permitting process. We decline to
impose a new requirement of a full and thorough analysis of each general condition based on
documentation the Corps may or may not have.” Id.
Other courts have followed Snoqualmie Valley’s lead by similarly emphasizing the
streamlining purpose of the nationwide permit system and the resulting diminution of the Corps’
investigative and evaluative responsibilities prior to issuing verifications. As one district court
wrote, “The purpose of the statute that authorizes general permits such as the nationwide permit
at issue here is to allow the Corps to designate certain construction projects as eligible for CWA
discharge permits with little, if any, delay or paperwork because they fit within these pre-cleared
categories of activities.” Sierra Club v. United States Army Corps of Engineers, 990 F. Supp.2d
9, 26 (D.D.C. 2013) (citation and internal quotation marks omitted).22 That same court opined
that “[w]hen a prospective permittee files a pre-clearance notice, the only thing left to be done is
for the Corps’s district engineers to verify that the planned project does, in fact, fit within the
category of activities that the Corps has already authorized.” Id. at 27; see also Sierra Club v.
22

Commentators have echoed this sentiment by characterizing the general permit
system as a “mechanism to ameliorate the regulatory costs and burdens created by the judicial
mandate that jurisdiction must be exercised over all waters of the United States.” Parish &
Morgan, History, Practice, and Emerging Problems of Wetlands Regulation: Reconsidering
Section 404 of the Clean Water Act, 17 Land & Water L. Rev. 43, 57 (1982). Other courts have
made similar observations. See, e.g., Vieux Carre Property Owners, Residents & Associates,
Inc. v. Brown, 875 F.2d 453, 465 (5th Cir. 1989) (“the nationwide permits of 33 C.F.R. § 330 are
specifically designed to expedite activities with inconsequential effects”); Orleans Audubon Soc.
v. Lee, 742 F.2d 901, 909 (5th Cir. 1984) (“[t]he purpose of the nationwide permit system is to
allow certain types of discharges to be made without prior Corps approval”); National Ass’n of
Home Builders v. U.S. Army Corps of Engineers, 453 F. Supp.2d 115, 120 (D.D.C. 2006) (“The
purpose of general permits, including nationwide permits (‘NWP’), issued under Section 404(e)
of the CWA is to allow projects that cause minimal environmental impact to go forward with
little delay or paperwork. … If a party discharges pollutants into navigable waters without
meeting the conditions of a general permit …, then the party can be subject to enforcement
actions, such as a civil administrative action by the Corps or a civil and criminal proceeding by
the Department of Justice.”); Sierra Club, Inc. v. Bostick, 2012 WL 3230552, *2 (W.D. Okla.
Aug. 5, 2012) (“The purpose of general permits, including Nationwide Permit 12 (‘NWP 12’),
issued pursuant to Section 404(e) of the CWA, is to permit projects that cause minimal
environmental impact to proceed with little delay or paperwork.”).

-24-

United States Army Corps of Engineers, --- F. Supp.2d ----, 2014 WL 4066256, *10 (D.D.C.
Aug. 18, 2014) (“when a party approaches the Corps under the general permitting scheme …,
such party is merely requesting ‘verification’ of their own belief that the proposed construction
project satisfies the Corps’s previously established requirements”).
Important insights emerge from the Snoqualmie Valley line of authorities. For starters,
those opinions emphasize that the nationwide permit program authorized by the CWA is
designed to be streamlined and efficient at the verification stage. To be sure, the process of
issuing a particular nationwide permit covering an entire category of construction activities is
exacting, exhaustive, and thorough.23 But the Corps completed that review back in February
2012, when it issued NWP 12. Having accomplished that extensive study for this category of
activities (i.e., construction, maintenance and repair of utility lines), the Corps has already
determined that activities within that category involving discharges of dredged or fill material
cause only minimal adverse environmental effects, both separately and cumulatively. See 33
U.S.C. § 1344(e)(2). Because NWP 12 is already in place, the Snoqualmie Valley strand of case
authorities explains, the Corps’ heavy lifting for a verification request like Plains Southcap’s
(falling within that pre-cleared category of activities delineated by NWP 12) has already been
done. This is starkly different from an individual permitting decision. Furthermore, this
distinction plays directly into the raison d’etre of the nationwide permit system, which is to
expedite issuance of CWA discharge permits with minimal delay or paperwork for certain precleared categories of activities so as to mitigate what would otherwise be considerable regulatory
costs, burdens and delays for agency and permittee alike.
Viewed through this lens, forcing the Corps to perform an extensive environmental
review in the verification context under NWP 12 would (i) duplicate work already performed at
the nationwide permit stage in pre-clearing this category of activities; (ii) contravene the purpose
of the nationwide permit process; (iii) increase exponentially the documentation a permittee must
23

See, e.g., Sierra Club, 2014 WL 4066256, at *10 (“under the general permitting
system, the Corps has already concluded that covered activities can proceed based on an
extensive environmental impact study that the agency does periodically regarding such
construction activities on a regional or nationwide basis”); Sierra Club, 990 F. Supp.2d at 27
(“under the nationwide permit system, the Corps has already done an environmental review on a
general categorical basis”).

-25-

submit to the Corps, including numerous items not specifically delineated as required
documentation in the General Conditions; and (iv) multiply the delay and expense associated
with verifications so as to render them functionally indistinguishable from individual permit
decisions, thus collapsing two conceptually distinct regulatory processes into one. This rationale
provides compelling support for the Ninth Circuit’s conclusion that federal courts should
“decline to impose a new requirement of a full and thorough analysis of each general condition
based on documentation the Corps may or may not have.” Snoqualmie Valley, 683 F.3d at 1164.
Rather, the Corps’ role at the verification stage is simply “to verify that the planned project does,
in fact, fit within the category of activities that the Corps has already authorized.” Sierra Club,
990 F. Supp.2d at 27.
In response to defendants’ reliance on Snoqualmie Valley and its ilk, Baykeeper does not
identify any contrary case authority. It cites no opinions finding that the Corps must perform an
in-depth analysis of each general condition before issuing a verification under a nationwide
permit. While Baykeeper insists that the Corps was obligated to verify Plains Southcap’s
compliance with General Condition 7 before granting NWP 12 verification for the pipeline, it
does not hold out a single case supporting such a result. Baykeeper neither criticizes the
reasoning of Snoqualmie Valley nor cites any decisions suggesting that Snoqualmie Valley was
wrong to “decline to impose a new requirement of a full and thorough analysis of each general
condition” by the Corps. Instead, Baykeeper states that both Snoqualmie Valley and the District
of the District of Columbia’s decisions in Sierra Club v. U.S. Army Corps of Engineers are
factually distinguishable. (Doc. 47, at 8-9.) Such an effort to sidestep these authorities is
unavailing because nothing in plaintiff’s proffered distinctions would undermine the pertinent
reasoning (as discussed supra) of those cases or its applicability to the Corps’ responsibilities
here. The utility of Snoqualmie Valley is not that it is factually or procedurally on all fours with
our case (it is not), but rather is that Snoqualmie Valley provides a clear-eyed, lucid explanation
of why, in the context of the § 404 regulatory scheme, the Corps is not, and should not be,
obligated to conduct an in-depth examination of a project’s compliance with each General
Condition before issuing a verification under a nationwide permit. Thus, the purported
distinctions cited by Baykeeper are inconsequential and unavailing.
As the foregoing discussion demonstrates, this Court is not blindly following Snoqualmie
Valley in isolation. A collage of other persuasive factors, considered in tandem with Snoqualmie

-26-

Valley, prompt the conclusion that the Corps was not required to study compliance with General
Condition 7 before issuing NWP 12 verifications on the Plains Southcap pipeline. First, this
result appears to be fully consistent with, and a natural extension of, the purposes underlying the
nationwide permit system. Nationwide permits are intended to reduce administrative costs and
burdens, and to allow projects in pre-cleared activities to move forward with little delay or
paperwork. Demanding that the Corps conduct a searching examination of every general
condition for every verification request would undermine those purposes. Second, neither
plaintiff nor this Court has located any persuasive authority contrary to Snoqualmie Valley.
Third, nothing in the text of the Corps’ final rule for nationwide permits indicates that the Corps
must perform an independent analysis of a project’s risks to public water supply intakes and
make a “no proximity” finding under General Condition 7 before issuing verifications.24 Fourth,
adopting Snoqualmie Valley principles here would not render General Condition 7 illusory or a
24

By contrast, certain other general conditions are couched in specific directives to
the Corps or the appropriate District Engineer (“DE”). For example, General Condition 18
(Endangered Species) specifies that the permittee must provide the DE with documentation
establishing its compliance with the Endangered Species Act and that “[t]he district engineer will
review the documentation and determine whether it is sufficient to address ESA compliance for
the NWP activity, or whether additional ESA consultation is necessary.” 77 Fed. Reg. 10,283.
General Condition 20 (Historic Properties) imposes analogous obligations on the permittee and
the DE as to compliance with Section 106 of the National Historic Preservation Act. Id. at
10,284. General Condition 23 (Mitigation) recites a laundry list of facts that “[t]he district
engineer will consider … when determining appropriate and practicable mitigation.” Id. at
10,285. The point is clear: When the Corps wanted to create a mandatory review process for
items that the DE must consider before verifying a project, it included appropriate language in
the text of that general condition. The Corps knew how to use such language in its final rule;
however, it omitted such language from the text of General Condition 7. Such omission raises a
strong inference that the Corps never intended to impose a specific, mandatory review process by
the DE as to that general condition before a verification may issue. See Lindley v. F.D.I.C., 733
F.3d 1043, 1056 (11th Cir. 2013) (in context of statutory construction, rather than regulatory
construction, “where Congress knows how to say something but chooses not to, its silence is
controlling”); United States v. Shellef, 756 F. Supp.2d 280, 295 (E.D.N.Y. 2011) (“The Supreme
Court has repeatedly emphasized in analyzing questions of statutory interpretation … that courts
should not add or modify language to statutes where, as here, it is clear from other provisions
within the same statute that Congress knew how to include such language if it so wished.”);
Cremeens v. City of Montgomery, 602 F.3d 1224, 1227 (11th Cir. 2010) (“We apply the canons of
construction to regulations as well as to statutes.”); Black & Decker Corp. v. C.I.R., 986 F.2d 60,
65 (4th Cir. 1993) (“Regulations, like statutes, are interpreted according to canons of
construction.”).

-27-

nullity; to the contrary, both record documents and authorities impose a duty on the permittee to
comply strictly with General Condition 7 and all other general conditions, or else face the specter
of an enforcement action.25 Thus, adopting the Corps’ position that it need not investigate
compliance with General Condition 7 prior to issuing verification for an activity in a pre-cleared
category would not foreclose the potential for effective, meaningful enforcement at a later time.
Fifth and finally, the Snoqualmie Valley line of reasoning dovetails neatly with the Corps’
own interpretation of its final rule. The Corps drafted and (after a public notice and comment
period) issued the rule governing the nationwide permit program, including NWP 12 and General
Condition 7. In both its actions during the Plains Southcap verification process and its briefs in
this litigation, the Corps construes this rule as not requiring a full and thorough analysis of
compliance with General Condition 7 antecedent to issuance of a verification under NWP 12.
Such an interpretation is consistent with Snoqualmie Valley. That interpretation is entitled to
deference. It is well settled that “courts must give deference to an agency’s reasonable
interpretation of its own regulations.” Sierra Club, Inc. v. Leavitt, 488 F.3d 904, 912 (11th Cir.
2007). In that regard, reviewing courts “will uphold the agency’s interpretation of its regulations
so long as it is reasonable, that is, so long as the interpretation sensibly conforms to the purpose
and wording of the regulations.” Id. (citation omitted).26 The consistency between the appellate
25

As noted previously, the Corps’ verification letter dated January 18, 2013,
expressly imposes a duty on Plains Southcap to “comply with all of the regional and general
conditions and any project specific conditions of these verifications or you may be subject to
enforcement action.” AR 1013 (emphasis added). Likewise, one district court recognized that
“[i]f a party discharges pollutants into navigable waters without meeting the conditions of a
general permit …, then the party can be subject to enforcement actions, such as a civil
administrative action by the Corps or a civil and criminal proceeding by the Department of
Justice.” National Ass’n of Home Builders, 453 F. Supp.2d at 120. As such, the onus was placed
squarely on Plains Southcap to avoid discharging dredged and fill material in proximity to a
public water supply intake. Had Plains Southcap violated this condition, the Corps or the
Department of Justice could have held it accountable via enforcement action.
26

See also Vieux Carre Property Owners Residents and Associations, Inc. v. Brown,
40 F.3d 112, 116 (5th Cir. 1994) (“an agency is afforded ‘substantial deference’ when it interprets
its own regulations”); Sierra Club v. U.S. Army Corps of Engineers, 464 F. Supp.2d 1171, 1183
(M.D. Fla. 2006) (“If interpretation of an agency’s regulation is at issue, the Court must defer to
the agency’s determination unless plainly erroneous, inconsistent with the regulation, or if the
agency has promulgated a parroting regulation that does nothing more than paraphrase the
statutory language that it should be implementing.”) (citations and internal marks omitted);
(Continued)
-28-

court’s approach in Snoqualmie Valley and the Corps’ interpretation of its own final rule in this
case is another factor that weighs in favor of following Snoqualmie Valley.
After all the dust settles, what remains in this: The Corps did not investigate whether
Plains Southcap’s pipeline would be routed in proximity to a public water supply intake.
Nonetheless, that omission did not render the Corps’ NWP 12 verifications for the pipeline in
January 2013 arbitrary and capricious, an abuse of discretion, or contrary to law. Applicable
statutes and regulations did not obligate the Corps to perform such an in-depth pre-verification
examination of compliance with General Condition 7. The Corps’ interpretation of its final rule
does not require any such action. And courts have opined that a contrary ruling would conflict
with the stated purposes of the nationwide permit program under § 404 of the CWA. For all of
these reasons, the Court finds as a matter of law that Baykeeper is not entitled to relief on its
claim that the Corps’ failure to consider General Condition 7 and the pipeline’s proximity to the
public water supply intake was arbitrary and capricious, an abuse of discretion, or contrary to
law under the Administrative Procedure Act. Summary judgment will be granted in defendants’
favor, and against Baykeeper, on this category of claims.27

Sierra Club, Inc. v. Bostick, 2013 WL 6858685, *23 (W.D. Okla. Dec. 30, 2013) (“We must give
an agency’s interpretation of its own regulations controlling weight unless it is plainly erroneous
or inconsistent with the regulation.”) (citations and internal quotation marks omitted). Here, of
course, the issue is the Corps’ interpretation of its final rule, rather than a regulation, and that
interpretation was made informally, rather than formally. Even so, some degree of deference
remains appropriate. See generally United States v. Mead Corp., 533 U.S. 218, 234, 121 S.Ct.
2164, 150 L.Ed.2d 292 (2001) (recognizing that “an agency’s interpretation may merit some
deference whatever its form, given the specialized experience and broader investigations and
information available to the agency … and given the value of uniformity in its administrative and
judicial understandings of what a national law requires,” with such an interpretation receiving “a
respect proportional to its power to persuade”) (citations and internal quotation marks omitted).
27

The Court pauses here to offer a pair of additional salient observations. First, in
finding that the nationwide permit process excuses the Corps from expressly determining
compliance with General Condition 7 before issuing verification, the Court expresses no
opinions about what the law should be, only what it is. The Eleventh Circuit has previously
stated that it is “acutely aware of Appellants’ legitimate concerns over abuse of the general
permitting process … [to] gut the individual permitting process.” Sierra Club v. U.S. Army
Corps of Engineers, 508 F.3d 1332, 1336 (11th Cir. 2007). If Baykeeper is correct, then there
may be important unanswered questions about whether the law should impose on the Corps
additional oversight and investigative duties before issuing verifications under nationwide
(Continued)
-29-

3.

The Public Interest.

Baykeeper’s next set of claims is that “the Corps failed entirely to consider the public
interest when it authorized the NWP 12 verifications to Plains.” (Doc. 39, at 22.) The Corps
Defendants take the diametrically opposing stance that “the Corps is not required to perform a
public interest analysis in verifying that an activity qualifies for a nationwide permit.” (Doc. 43,
at 16.) Once again, then, the parties’ dispute centers on what steps the Corps was required to
take before issuing the January 2013 verifications to Plains Southcap.
In support of its position, Baykeeper identifies two authorities that it maintains obligated
the Corps to perform such a public interest analysis antecedent to issuing verifications for the

permits; however, those questions are legislative or regulatory in nature, and are not properly
before the judiciary in cases such as this. Second, the Court expressly declines the parties’
invitations to issue an alternative holding as to whether General Condition 7 was or was not
satisfied here, whether the pipeline’s location would or would not pass the proximity test, or
whether a General Condition 7 inquiry may take into account risk of oil spills. A reviewing
court “may not supply a reasoned basis for the agency’s action that the agency itself has not
given.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,
43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (citation omitted). Here, the Corps never found that
General Condition 7 was satisfied, that the pipeline would not result in “activity … in the
proximity of a public water supply intake,” or the like. The Court cannot rescue an agency
action from arbitrary and capricious status by “filling in the gaps” to shore up deficiencies in the
agency decision. In other words, if the Corps were required to consider General Condition 7,
defendants could not escape remand by having this Court issue findings as to how it thinks the
Corps should have decided a General Condition 7 inquiry had it performed same. The claims
presented hinge on whether the Corps was required to consider General Condition 7 before
issuing the verifications. If so, remand to the agency would be necessary, because the Corps’
verification decisions would have been rendered arbitrary and capricious by the agency’s failure
to consider an important aspect of the problem. Upon remand, it would be the Corps’
responsibility (not that of this Court) to apply General Condition 7 and make proximity findings.
See generally National Wildlife Federation v. Hanson, 623 F. Supp. 1539, 1548 (E.D.N.C. 1985)
(“The plaintiffs contend that, upon remand, the court should give the Corps specific instructions
on how to properly proceed in making its wetlands determination. Although this court is
empowered to review jurisdictional decisions to determine whether they are arbitrary or
capricious, the ultimate responsibility rests with the Corps to employ its scientific expertise to
develop an appropriate methodology.”). Of course, the Court having concluded that the Corps
was not bound to determine compliance with General Condition 7 before issuing NWP 12
verifications, those questions are moot. The Court will not engage in hypothesis and conjecture
as to whether the Plains Southcap pipeline would have passed a “proximity” analysis under
General Condition 7 had the Corps been required to perform one.

-30-

Plains Southcap pipeline. First, Baykeeper points to an excerpt from the Corps’ Nationwide
Permit 12 Decision Document dated February 13, 2012 (the “NWP 12 Decision Document”), in
which the Corps wrote, “Division and district engineers can prohibit the use of this NWP in
watersheds for public water supplies, if it is in the public interest to do so.” (Doc. 43, Att. 1, at
32.) Second, Baykeeper cites General Condition 31 of the Corps’ final rule entitled “Reissuance
of Nationwide Permits” and dated February 21, 2012, which includes the following statement:
“In reviewing the PCN for the proposed activity, the district engineer will determine whether the
activity authorized by the NWP will result in more than minimal individual or cumulative
adverse environmental effects or may be contrary to the public interest.” 77 Fed. Reg. 10,287.
The Court will examine each of these provisions in turn.
Without question, the NWP 12 Decision Document authorizes Corps officials at the
division and district levels to “prohibit the use of this NWP in watersheds for public water
supplies, if it is in the public interest to do so.” However, this language cannot reasonably be
construed as requiring district engineers to evaluate the public interest before verifying an
activity under NWP 12. The Corps Defendants persuasively argue (with no rebuttal from
Baykeeper) that the cited text does not relate to the verification process at all. After an NWP is
issued by the Corps, each division or district engineer has discretionary authority to determine on
a general level that the use of that NWP is inappropriate for particular geographic area or class of
activities within that division or district, and to exclude its usage for that area or class of
activities.28 The Corps Defendants maintain that the cited language in the NWP 12 Decision
Document was referring to this discretionary authority to prohibit use of a NWP generally in a
class of activities or locations based on the public interest, rather than in singular verification
decisions. Faced with this argument, Baykeeper has articulated no explanation for how the cited
text might be read as applying to individual verification decisions. The Court will not attempt to
formulate a litigant’s unspoken arguments for it. More broadly, the lone sentence highlighted by
28

See 33 C.F.R. § 330.4(e)(1) (“A division engineer may assert discretionary
authority by modifying, suspending, or revoking NWP authorizations for a specific geographic
area, class of activity, or class of waters within his division, including on a statewide basis,
whenever he determines sufficient concerns for the environment under the section 404(b)(1)
Guidelines or any other factor of the public interest so requires, or if he otherwise determines
that the NWP would result in more than minimal adverse environmental effects either
individually or cumulatively.”).

-31-

Baykeeper cannot reasonably be read as imposing an absolute duty on district engineers to
perform a public interest analysis as a prerequisite to verifications in an individual case. The
language in question speaks to what the Corps “can” do, without specifying what it must do.
Thus, the cited text from the NWP 12 Decision Document does not lend credence to Baykeeper’s
position.
General Condition 31 is a different animal. It addresses individual verification decisions
in circumstances where pre-construction notification (“PCN”) is required, as in this case. It
specifies that “[i]n reviewing the PCN for the proposed activity, the district engineer will
determine whether the activity authorized by the NWP will result in more than minimal
individual or cumulative adverse environmental effects or may be contrary to the public
interest.” 77 Fed. Reg. 10,287 (emphasis added). As such, arguments that General Condition 31
does not apply at the individual verification stage or that it does not reference the public interest
cannot be credited.
The Corps Defendants’ response is twofold. First, they maintain that the Corps did
comply with General Condition 31. (Doc. 43, at 17-18.)29 In that regard, they point to the 7page Decision Document (the “Verification Decision Document”) issued by the Corps to Plains
Southcap on January 17, 2013, granting the requested verifications under NWP 12. In the
Verification Decision Document, the Corps describes the contemplated pipeline project,
delineates the nature and locations of the stream crossings and wetlands impacts, examines
effects under the Endangered Species Act and National Historic Preservation Act, recites 11
special conditions that Plains Southcap must satisfy and the rationale for each, and sets forth the
compensatory mitigation that will be required. (AR 1005-11.) The Verification Decision
Document concludes with the Corps Team Leader’s “Determination,” to-wit: “I have reviewed
the proposed project and determined that the work will result in minimal individual and
cumulative adverse effects on the aquatic environment.” (AR 1011.) The Corps’ position is that
this Determination satisfies the General Condition 31 requirements touted by Baykeeper.
Second, the Corps Defendants insist that it would contravene Congressional intent to construe
29

The Corps Defendants’ assertion is as follows: “Baykeeper also relies on
language in the Federal Register that the District Engineer will determine whether the project
will result in more than minimal environmental impacts or may be contrary to the public interest.
The Corps did make such a determination in this case.” (Doc. 43, at 17 (emphasis added).)

-32-

General Condition 31 as mandating a full de novo public interest review for every verification
request. (Doc. 43, at 17.)
After careful consideration of the parties’ summary judgment arguments, the Court
concludes that defendants have the upper hand on the “public interest” issue. A host of
considerations inform this result. As an initial matter, plaintiff has not responded to or addressed
the Corps Defendants’ contention that the “Determination” at the end of the Verification
Decision Document sufficed to fulfill the requirements of General Condition 31. If Baykeeper
disagrees with the Corps’ position, it was obliged to say so and to explain why in its
reply/opposition brief (doc. 47). Instead, it remained silent on this point.
Furthermore, the Corps Defendants’ position resonates because a dizzying array of
factors are embedded in the notion of a public interest review. The NWP 12 Decision Document
reflects the Corps’ extensive public interest review in connection with issuing NWP 12,
including 23 enumerated factors that the Corps considered and addressed in the Decision
Document pursuant to 33 C.F.R. § 320.4(a)(1) & (2). (Doc. 43, Att. 1, at 28-35.)30 Public
30

Those public interest factors include the following: conservation values,
economics (impacts of utility line activities on local economy, job generation, and
infrastructure), aesthetics (visual character, air quality, noise), general environmental concerns
(pollution, effects on physical/chemical/biological characteristics of environment), wetlands
(loss, alteration, restoration, compensatory mitigation), historic properties, fish and wildlife
values (effects on habitat of fish and wildlife in affected streams, wetlands and other waters),
flood hazards (whether project will affect surface water flow velocities and flood-holding
capacity), floodplain values, land use (alteration in land use from natural to developed),
navigation, shore erosion/accretion, recreation (effect of utility lines on activities such as bird
watching, hunting and fishing), water supply and conservation (effects on surface water,
groundwater, water pollution, local water supplies, and so on), water quality (increased
sediments and pollutants in the water, effects on microorganisms in the water, riparian
vegetation), energy needs (potential for utility line construction to induce higher rates of energy
consumption by making energy products more readily available to consumers), safety, food and
fiber production (reduction in available farmland, effects on commercial food production
facilities), mineral needs (demand for materials used in constructing utility lines, including steel,
aluminum and copper), considerations of property ownership (right to reasonable private use of
property), relative extent of public and private need for the proposed project, practicability of
reasonable alternative locations and methods for the project, and extent and permanence of the
project’s beneficial and detrimental effects on public and private uses of the area. (Doc. 43, Att.
1, at 28-35; 33 C.F.R. § 320.4(a)(1) & (2).) Plaintiff would apparently have the Corps pick out
one of these factors (“water supply and conservation”) and deem the project contrary to the
public interest. In reality, public interest review entails a far more rigorous, searching inquiry.

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interest review is a time-consuming, resource-intensive undertaking. Under Baykeeper’s
hypothesis that the Corps could not issue NWP 12 verifications for the Plains Southcap project
without first determining whether that activity was contrary to the public interest, the Corps
would be compelled to perform a staggering amount of work at the verification stage, such duties
to include investigating, evaluating, collecting information on, and weighing these 23 public
interest factors. This would increase exponentially the Corps’ workload in connection with each
verification request it receives. It would in many respects duplicate a public interest review
already performed at the aggregate level in issuing NWP 12 in the first place. It would almost
certainly necessitate the sort of activity-specific public hearings and notice-and-comment
proceedings that the nationwide permit system was designed to avoid. It would collapse the
carefully crafted regulatory distinction between individual permits, on the one hand, and
verification of activities under nationwide permits, on the other, by requiring the Corps to
perform the same public interest review functions in both circumstances. And it would run
counter to the objective of streamlining administrative review under the nationwide permit
process at the verification stage. See Snoqualmie Valley, 683 F.3d at 1163 (“The purpose of this
scheme is to enable the Corps to quickly reach determinations regarding activities that will have
minimal environmental impacts …. Requiring an elaborate analysis of the applicable regulations
and the facts would defeat this purpose.”).
Additionally, the Court considers the Corps’ interpretation of its own General Condition
31 as being satisfied by a Determination couched in terms of “minimal individual and cumulative
adverse effects on the aquatic environment,” rather than whether the project is contrary to the
public interest. Because the Corps is applying its own rule, its interpretation is entitled to
deference. See generally Sierra Club, Inc. v. Leavitt, 488 F.3d at 912 (“courts must give
deference to an agency’s reasonable interpretation of its own regulations”). The Corps’
interpretation is bolstered by the context surrounding the language touted by Baykeeper, to-wit:
“In reviewing the PCN for the proposed activity, the district engineer will determine whether the
activity authorized by the NWP will result in more than minimal individual or cumulative
adverse environmental effects or may be contrary to the public interest.” 77 Fed. Reg. 10,287.
That section of the final rule goes on to provide guidance for the District Engineer in “making
minimal effects determinations” and repeatedly uses the labels “minimal adverse effects
determination” and “minimal adverse effects.” Id. at 10,287-88, at §§ D.1.-3. Notably, however,

-34-

that section does not use the phrase “contrary to the public interest” or “public interest
determination” again. Viewing the text of General Condition 31 as a whole, then, rather than
simply plucking out and highlighting one sentence in isolation as Baykeeper has done,31 the rule
appears to be requiring a minimal adverse effects inquiry, rather than a separate, stand-alone,
comprehensive public interest analysis. Thus, the context of the rule supports the Corps’
interpretation of the sentence on which Baykeeper relies.
In sum, the Court does not read the applicable NWP 12 Decision Document and General
Condition 31 as imposing an obligation on the Corps to conduct a public interest analysis prior to
issuing a NWP 12 verification. To be sure, General Condition 31 specifies that “the district
engineer will determine whether the activity authorized by the NWP will result in more than
minimal individual or cumulative adverse environmental effects or may be contrary to the public
interest.” However, the Corps Defendants have made an uncontradicted, unrebutted showing
that they complied with this requirement with respect to the Plains Southcap verifications in
January 2013. That showing is bolstered by the policy objectives underlying the nationwide
permit process, the Corps’ extensive public interest analysis before issuing NWP 12, the Corps’
entitlement to deference for its interpretation of its own final rule, and the context of General
Condition 31 itself. For these reasons, defendants will be granted summary judgment as to
Baykeeper’s claims that the Plains Southcap verifications were arbitrary and capricious because
the Corps failed to consider whether the activity was contrary to the public interest.
4.

Explanation for Finding of Minimal Cumulative Effects.

Baykeeper’s final set of claims challenging the Corps’ verification decisions as to the
Plains Southcap pipeline project again rely on General Condition 31, and specifically its
requirement that the district engineer “will determine whether the activity authorized by the
NWP will result in more than minimal individual or cumulative adverse environmental effects.”
31

Of course, it is a time-honored principle of statutory construction (and therefore
regulatory construction) that words and phrases must not be viewed in isolation; rather, the
document as a whole must be considered. See, e.g., Utility Air Regulatory Group v. E.P.A., --U.S. ----, 134 S.Ct. 2427, 189 L.Ed.2d 372 (2014) (referencing the “fundamental canon of
statutory construction that the words of a statute must be read in their context and with a view to
their place in the overall statutory scheme”) (citation omitted); Poveda v. U.S. Atty. Gen., 692
F.3d 1168, 1179 (11th Cir. 2012) (“in construing a statute, we do not look at one word or term in
isolation, but instead we look to the entire statutory context”) (citation omitted).

-35-

77 Fed. Reg. 10,287. Here, the Corps unquestionably made such a determination. At the
conclusion of the Verification Decision Letter, the Corps’ Team Leader wrote, “I have reviewed
the proposed project and determined that the work will result in minimal individual and
cumulative adverse effects on the aquatic environment.” (AR 1011.) Baykeeper’s challenge is
not that the Corps failed to make the minimal adverse effects determination required by General
Condition 31; instead, Baykeeper seeks to have the Corps’ decision overturned as arbitrary and
capricious because “it failed to provide a reasoned explanation for its determination that the
Pipeline will result in minimal individual and cumulative adverse effects.” (Doc. 39, at 24.) In
Baykeeper’s view, the Corps’ action was arbitrary and capricious because “[i]t is impossible to
determine from the Record if the Corps analyzed this issue in a reasonable way.” (Doc. 47, at 4.)
It is an uncontroversial and correct statement of law that agencies typically must
articulate a reasoned explanation for their decisions.32 Nonetheless, there are no hard and fast
rules as to how much information the Corps must include or how detailed its explanation must
be. As both the Corps Defendants and Plains Southcap point out, “there is no statutory or
regulatory dictate outlining the requirements of a verification letter, and the Court may not
substitute its judgment for that of the agency.” Sierra Club, Inc. v. Bostick, 2013 WL 6858685,
*24 (W.D. Okla. Dec. 30, 2013); see also Sierra Club v. United States Army Corps of Engineers,
990 F. Supp.2d 9, 21 (D.D.C. 2013) (rejecting plaintiff’s argument that verification letters must
include statement regarding cumulative impacts of stream crossings under NWP 12, and
observing that “there is no statutory or regulatory mandate that verification letters contain any
such statement”); Sierra Club v. United States Army Corps of Engineers, --- F. Supp.2d ----,
2014 WL 4066256, *19 (D.D.C. Aug. 18, 2014) (opining that “Plaintiffs have not convinced this
Court that the CWA or NWP 12 requires anything more” than a statement in each verification
32

See, e.g., Conservancy of Southwest Florida v. U.S. Fish & Wildlife Service, 677
F.3d 1073, 1077 n.9 (11th Cir. 2012) (“The APA’s arbitrary-and-capricious standard requires the
agency to examine the relevant data and articulate a satisfactory explanation for its action
including a rational connection between the facts found and the choice made.”) (citations and
internal quotation marks omitted); Sierra Club v. Martin, 168 F.3d 1, 15 (11th Cir. 1999)
(“Agency actions must be reversed as arbitrary and capricious when the agency fails to examine
the relevant data and articulate a satisfactory explanation for its action including a rational
connection between the facts found and the choice made.”) (citation and internal quotation marks
omitted).

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letter to the effect that the proposed activity would result in only minor individual and
cumulative adverse effects). What is left is the general Administrative Procedure Act
requirement that the agency’s explanation must provide “a rational connection between the facts
found and the choice made.” Sierra Club v. Martin, 168 F.3d 1, 15 (11th Cir. 1999) (citation
omitted). That requirement becomes the legal battleground for Baykeeper’s claims.
A survey of recent case law reveals that arguments like Baykeeper’s (i.e., that the Corps
must provide a full explanation of its minimal effects determination in verification letters or
otherwise under NWP 12) have not fared well. Most recently, a federal district court in the
District of Columbia considered a claim similar to Baykeeper’s assertion that the verification
letters lacked sufficient information to justify their stated determinations. See Sierra Club, 2014
WL 4066256, at *20. The court found that the Corps’ minimal effects determinations set forth in
the verification letters were not arbitrary and capricious because each such determination “was
made at the end of a lengthy memorandum explaining … the details concerning the scope of the
proposed project …, the expected effect of the project on waters of the United States within that
district, and specific mitigation techniques to be employed in response to those effects …. [T]his
Court has little trouble finding that there was a factual basis in the evidentiary record for the
district engineers to reach the conclusions they did regarding the cumulative effects of the
portions of the pipeline planned for construction in their district.” Id.33
The case at bar is analogous to the recent District of Columbia Sierra Club decision. The
Corps’ Verification Decision Document issued to Plains Southcap is a seven-page, single-spaced
document that outlines the parameters of the proposed pipeline; describes the pipeline’s expected
effects as including temporary trenching of 22 stream crossings, impacting 389 linear feet of
stream bottoms, with temporary trenching and side-casting of fill, and temporary and permanent
33

Other recent cases are comparable. See Sierra Club v. Bostick, 2013 WL
6858685, at *24 (rejecting plaintiff’s challenge to sufficiency of Corps’ minimal effects
determination because “[t]he verification letters identified the appropriate criteria and determined
they were met”); Sierra Club v. United States Army Corps of Engineers, 990 F. Supp.2d at 21
(denying plaintiff’s claim that Corps verification was arbitrary and capricious where verification
letters did not include cumulative effects discussion, and reasoning that “the Court will not
assume that the fact that the verification letters lack a statement regarding cumulative effects
means that the Corps failed to perform such an analysis, particularly where NWP 12 directs the
district engineers to do so”).

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conversion of 40.42 acres of bottomland hardwood wetlands; identifies the specific bodies of
water and wetland locations impacted by the project; and recites findings as to adverse effects
under the Endangered Species Act and National Historic Preservation Act. (AR 1005-07.) The
Verification Decision Document also rattles off a series of special conditions, including temporal
limits and other restrictions on side cast of material from trench excavation into waters of the
United States; requirements that Plains Southcap purchase 25.92 bottomland hardwood wetland
mitigation credits to prevent a net loss of wetland functions; mandates that Plains Southcap
restore all temporary impacts of waters to pre-impact elevation, contours, and ecological
condition except as noted; directives as to the manner in which excavation and fill activities shall
be performed; limits on disposal of vegetative debris or discharge of oil or other pollutants into
the watercourse; restrictions on movement of equipment within wetlands; and so on. (AR 100710.) If the verification letters in the District of Columbia case offered sufficient factual basis for
the Corps’ minimal effects determination therein (and that court specifically found that they did),
then the same conclusion must attach here as well.
Baykeeper does not articulate why it contends the information and analysis in the
Verification Decision Document (and, indeed, in the 1,000+ page administrative record) is
insufficient to fulfill the Corps’ duty to explain its minimal effects determination. Apparently,
Baykeeper would discount everything in the Verification Decision Document that is not
explicitly couched as a cumulative effects analysis. (Doc. 39, at 24-25.) The Court is aware of
no legal authority or rationale, and plaintiff has provided none, mandating that the Corps’
discussion of underlying cumulative effects be summarily jettisoned if it does not bear the label
“cumulative effects analysis.” The point is simple: The extensive, detailed information set forth
in the Verification Decision Document adequately supports the Corps’ minimal effects
determination at the conclusion of that document. Plaintiff has not shown that any statute or
regulation obligated the Corps to say anything more to justify its decision.
The marshaled legal principles that disfavor Baykeeper’s argument include additional
considerations, as well. Forcing the Corps to write up a separate, detailed “cumulative effects
analysis” in the verification process would undermine the purposes of the nationwide permitting
process as outlined in Snoqualmie Valley. Moreover, the Corps’ interpretation of its final rule is
entitled to deference. As a general proposition, such deference applies with equal force to
drafting decisions, such as the Corps’ determination of how much or how little analysis to

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include on a topic. See Sierra Club v. Van Antwerp, 526 F.3d 1353, 1361 (11th Cir. 2008)
(arbitrary and capricious standard of review “requires substantial deference to the agency …
when reviewing drafting decisions like how much discussion to include on each topic, and how
much data is necessary to fully address each issue”). This Court will not second-guess the
Corps’ degree of discussion of the minimal effects determination merely because the agency did
not label it in a particular way.
Considering all of these factors in the aggregate, the Court readily concludes that the
Corps’ justification of its minimal impacts determination is not so threadbare that the verification
decisions were thereby rendered arbitrary and capricious. The Corps has articulated a
satisfactory explanation for its minimal impacts determination, including a rational connection
between the facts found and the choice made. For that reason, remand to the Corps is neither
necessary nor appropriate to require the agency to explain why it did what it did.
V.

Conclusion.
For all of the foregoing reasons, it is ordered as follows:
1.

Plaintiff’s claims are moot in part, to the extent that plaintiff seeks declaratory or
injunctive relief as to stream crossings ultimately achieved through horizontal
directional drilling methods, because such activities are outside the regulatory
purview of the Corps of Engineers and the Court could not grant plaintiff
effective relief with respect to same;

2.

Plaintiff’s Motion for Summary Judgment (doc. 38) is denied;

3.

The Corps Defendants’ Cross-Motion for Summary Judgment (doc. 43) and
Plains Southcap’s Motion for Summary Judgment (doc. 45) are both granted;

4.

There being no genuine issues of material fact, plaintiff’s Complaint is dismissed
with prejudice; and

5.

A separate judgment will enter.

DONE and ORDERED this 16th day of October, 2014.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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