Atchafalaya Basinkeeper et al v. U.S. Army Corps of Engineers

Filing 227

RULING denying Plaintiff's 202 Motion for Summary Judgment; granting 213 Motion for Summary Judgment by the Corps, Bayou Bridge, and Stupp. Signed by Chief Judge Shelly D. Dick on 3/25/2020. (KMW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
ATCHAFALAYA BASINKEEPER,
LOUISIANA CRAWFISH PRODUCERS
ASSOCIATION-WEST, GULF RESTORATION
NETWORK, WATERKEEPER ALLIANCE, AND
SIERRA CLUB AND ITS DELTA CHAPTER

CIVIL ACTION

VERSUS

18-23-SDD-EWD

U.S. ARMY CORPS OF ENGINEERS

RULING
This matter is before the Court on the cross Motions for Summary Judgment filed
by Plaintiffs, Atchafalaya Basinkeeper, Louisiana Crawfish Producers Association-West,
Gulf Restoration Network, Waterkeeper Alliance, and Sierra Club and its Delta Chapter
(“Plaintiffs”);1 Defendant, U.S. Army Corps of Engineers (“Corps”);2 Intervenor Bayou
Bridge Pipeline, LLC (“Bayou Bridge”);3 and Intervenor Stupp Bros, Inc. d/b/a Stupp
Corporation (“Stupp”).4

All Parties filed Oppositions and Replies to the respective

motions.5 The Court has carefully considered the Administrative Record,6 the arguments

1

Rec. Doc. No. 202.
Rec. Doc. No. 220.
3
Rec. Doc. No. 213.
4
Rec. Doc. No. 214.
5
Rec. Doc. Nos. 214, 220, 223, 224, 225, & 226. Due to the nature of this case, Parties were granted
leave to incorporate motion memoranda and opposition memoranda in one document.
6
The Parties reference the Administrative Record in this matter as “BBP,” as will the Court.
2

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of all Parties, and the applicable laws and jurisprudence in this matter. For the following
reasons, the Court finds that Plaintiffs’ motion should be DENIED, and the motions of the
Corps, Bayou Bridge, and Stupp should be GRANTED.
I.

FACTUAL AND PROCEDURAL BACKGROUND
This matter arises out of the Corps’ issuance of permits to Bayou Bridge to

construct and maintain a pipeline across the Atchafalaya Basin capable of carrying nearly
half a million barrels a day of crude oil.

The Corps performed two Environmental

Assessments (“EAs”), one pursuant to Section 408 of the Rivers and Harbors Act
(“RHA”),7 and one pursuant to Section 404 of the Clean Water Act (“CWA”)8
In October 2016, the Corps gave public notice inviting comment on Bayou Bridge’s
Section 404 permit application.9 The Corps subsequently conducted a public hearing and
extended the comment period.10 A few months later, the Corps gave notice also inviting
public comment on Bayou Bridge’s Section 408 application.11 Numerous federal
agencies, state agencies, and private parties provided comments in response.12 Plaintiffs
submitted several letters during the comment periods13 and additional comments
thereafter.14 The record demonstrates that the Corps considered timely comments15 and

7

Rec. Doc. No. 37-7.
Rec. Doc. No. 15-31.
9
BBP 5.
10
Id.
11
BBP 4412-20.
12
BBP 6-21.
13
BBP 14-20,
14
BBP 1631-75.
15
BBP 459.
8

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conducted multiple meetings with Bayou Bridge and others during the review process.16
Following its year-long review of this project proposal, the Corps prepared a 135page Section 408 EA, with nearly 200 pages of appendices.17 In conjunction, the Corps
also prepared a Section 404 EA that totaled 92 pages.18 The Corps coordinated “between
[its] Section 408 process and the . . . Section 404 process[ ].”19
Based on these EAs, the Corps ultimately concluded that no Environmental Impact
Statement (“EIS”) was necessary; however, Plaintiffs challenged this decision in this
Court and moved for a temporary restraining order and preliminary injunction to stop the
project from going forward without the completion of an EIS.20 Plaintiffs claimed that the
Corps’ review failed to assess critical environmental impacts arising from project
construction and operations and a long history of alleged noncompliance of prior Corps
pipeline permits in violation of the National Environmental Policy Act (“NEPA”)21 and that
the Corps’ failed to consider oil spill risks in violation of the CWA. Plaintiffs also argued
that the Corps violated both NEPA and the CWA by relying on inadequate mitigation.
The Court denied Plaintiffs’ request for a temporary restraining order22 but held a
two-day hearing on Plaintiffs’ request for a preliminary injunction and ultimately issued a
Ruling granting a preliminary injunction and halting the project.23 The Court disagreed

16

BBP 34; BBP 462; BBP 4225-26.
BBP 327-471.
18
BBP 1-92.
19
BBP 342.
20
Rec. Doc. Nos. 15 & 16.
21
42 U.S.C. §§ 4321-4370f.
22
Rec. Doc. No. 24.
23
Rec. Doc. Nos. 81 & 86.
17

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with Plaintiffs’ contention that the Corps failed to take a “hard look” at the likelihood and
risks of oil spills in the EAs;24 however, the Court granted the injunction finding a likelihood
of success on the merits regarding the Corps’ mitigation remedy for the loss of wetlands
and the inadequacy of the Corps’ consideration of the pipeline’s cumulative impacts when
considered with a history of past noncompliance.25 Both the Corps and Bayou Bridge
appealed this decision to the Fifth Circuit Court of Appeals.26
The Fifth Circuit stayed the injunction pending appeal and ultimately reversed the
Court, concluding that that Corps’ EA analysis under Section 404 and 408 satisfied the
requirements of NEPA and the CWA.27 Following the Fifth Circuit Court of Appeals’
Ruling, the project construction continued, and the pipeline is now fully operational,
subject to some cleanup and restoration.

Plaintiffs subsequently moved to file an

Amended Complaint, which the Court denied as futile.28

The Corps completed the

Administrative Record and filed a Notice of Lodging of Certified Administrative Record.29
Bayou Bridge moved to complete the administrative record,30 arguing the Corps failed to
include materials it considered relating to oil spill risks, and Plaintiffs moved to supplement
the record and/or have the Court consider extra-record evidence of purported expert
analysis contradicting several conclusions the Corps reached.31 The Corps opposed both

24

Rec. Doc. No. 86, pp. 28-29.
Id. at pp. 39-45; 49-51.
26
Rec. Doc. Nos. 82 & 87.
27
894 F.3d 692 (5th Cir. 2018).
28
Rec. Doc. Nos. 127, 192.
29
Rec. Doc. No. 152.
30
Rec. Doc. No. 157.
31
Rec. Doc. No. 158.
25

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motions, and the Court denied both motions for reasons assigned in its May 14, 2019
Ruling.32 Now before the Court are the Parties’ Motions for Summary Judgment as
described above.
II.

FEDERAL AGENCY REVIEW
Under § 706 of the Administrative Procedure Act (“APA”),33 a reviewing court must

uphold the agency's action unless it is found to be “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.”34 The reviewing court must hold
unlawful and set aside agency action that is contrary to constitutional right, in excess of
statutory authority, or without observance of procedure required by law.35 The ultimate
standard of review is a narrow one.36 “The court is not empowered to substitute its
judgment for that of the agency.”37 In applying this standard, “the focal point for judicial
review should be the administrative record already in existence, not some new record
made initially in the reviewing court.”38 Nevertheless, although the arbitrary and capricious
standard of review is highly deferential, “it is by no means a rubber stamp.”39 Alleged
violations of both NEPA and the CWA are reviewed under the APA.

32

Rec. Doc. No. 198.
5 U.S.C. § 706.
34
5 U.S.C. § 706(2)(A).
35
Id. § 706(2)(B)-(D).
36
Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)
abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977).
37
Id.
38
Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973).
39
U.S. v. Garner, 767 F.2d 104, 116 (5th Cir. 1985).
33

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A. NEPA
The National Environmental Policy Act of 1969 (“NEPA”),40 mandates that federal
agencies evaluate the environmental impacts of proposed agency action before taking
action.41 NEPA is a procedural statute intended “to ensure that federal agencies ‘carefully
consider detailed information concerning significant environmental impacts,’ and at the
same time ‘guarantee that the relevant information will be made available to the larger
audience that may also play a role in both the decision making process and the
implementation of that decision.’”42
NEPA requires federal agencies to prepare a detailed EIS for all “major federal
actions significantly [affecting] the quality of the human environment.”43 The threshold
determination of whether the effect of the proposed action is sufficiently “significant” to
necessitate the production of an EIS is made by the preparation of an Environmental
Assessment (“EA”).44 The EA is a more “concise” environmental review that “briefly”
discusses the relevant issues and either reaches a conclusion that preparation of an EIS
is necessary or concludes with a “Finding of No Significant Impact” (“FONSI”).45 An EA

40

42 U.S.C. §§ 4321-4370d.
42 U.S.C. § 4332(1); Baltimore Gas and Elec. Co. v. Natural Resources Defense Council, 462 U.S. 87,
97 (1983).
42
Sabine River Authority v. U.S. Dept. of Interior, 951 F.2d 669, 676 (5th Cir.1993) (quoting Robertson v.
Methow Valley Citizens Council, 490 U.S. 332, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989)).
43
42 U.S.C. § 4332(C).
44
Sabine River, 951 F.2d at 677.
45
Id.
41

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is conducted to “provide sufficient evidence and analysis for determining whether to
prepare an [EIS].”46
In making this determination, agencies are to consider both direct and indirect
effects of its decision “which are caused by the action and are later in time or farther
removed in distance, but are still reasonably foreseeable.”47 An impact is reasonably
foreseeable if a “person of ordinary prudence would take it into account in reaching a
decision.”48 The Corps must consider even relatively unlikely events with significant
impacts, like accidents.49
“The EA is a rough-cut, low-budget environmental impact statement designed to
show whether a full-fledged environmental impact statement-which is very costly and
time-consuming to prepare and has been the kiss of death to many a federal project-is
necessary.”50 Thus, the ultimate purpose of the EA is to lead to one of two findings:
“either that the project requires the preparation of an EIS to detail its environmental
impact, or that the project will have no significant impact ... necessitating no further study
of the environmental consequences which would ordinarily be explored through an EIS.”51
If the former is found, then the agency must proceed with a full blown EIS; if the latter is
found, the agency issues a FONSI and has no further obligations under NEPA.52

46

40 C.F.R. § 1508.9(a)(1).
40 C.F.R. §1508.8(b); O’Reilly v. U.S. Army Corps of Engineers, 477 F.3d 225, 228 (5th Cir. 2007)
48
City of Shoreacres v. Waterworth, 420 F.3d 440, 453 (5th Cir. 2005).
49
40 C.F.R. § 1502.22(b)(4).
50
Sabine River, 951 F.2d at 677 (internal quotations and citations removed).
51
Id.
52
Id.
47

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Notably, the NEPA statutory framework provides no substantive guarantees; it
prescribes adherence to a particular process, not the production of a particular result.53
NEPA “is a procedural statute that demands that the decision to go forward with a federal
project which significantly affects the environment be an environmentally conscious
one.”54

The statute “does not command the agency to favor an environmentally

preferable course of action, only that it make its decision to proceed with the action after
taking a ‘hard look at environmental consequences.’”55 Indeed, “NEPA does not prohibit
the undertaking of federal projects patently destructive of the environment; it simply
mandates that the agency gather, study, and disseminate information concerning the
projects' environmental consequences.”56

Thus, while “[o]ther statutes may impose

substantive environmental obligations on federal agencies . . . NEPA merely prohibits
uninformed-rather than unwise-agency action.”57 “Agency actions with adverse
environmental effects can thus be NEPA compliant where ‘the agency has considered
those effects and determined that competing policy values outweigh those costs.’”58
Further, the Fifth Circuit has found that the fact that plaintiffs or their experts take
great issue with the factual findings and ultimate conclusions of the agency does not
render those findings and conclusions “arbitrary and capricious.”59 As the court noted,

53

Robertson, 490 U.S. at 350, 109 S.Ct. 1835.
Sabine River, 951 F.2d at 676 (quoting Robertson, 490 U.S. at 350).
55
Id. (quoting Robertson, 490 U.S. at 350, 109 S.Ct. 1835).
56
Id.
57
Robertson, 490 U.S. at 351.
58
Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 255 F.Supp.3d 101, 113 (D.D.C.
2017)(quoting Ohio Valley Envtl. Coal v. Aracoma Coal Co., 556 F.3d 177, 191 (4th Cir. 2009)).
59
Spiller v. White, 352 F.3d 235 (5th Cir. 2003).
54

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government agencies-and not the federal courts-are the entities NEPA entrusts with
weighing evidence and reaching factual conclusions:
Where conflicting evidence is before the agency, the agency and not the
reviewing court has the discretion to accept or reject from the several
sources of evidence. The agency may even rely on the opinions of its own
experts, so long as the experts are qualified and express a reasonable
opinion.60
Moreover, even if a court was convinced that the plaintiffs' experts were more
persuasive than those relied upon by the agency, the court would still be compelled to
uphold the agency’s finding so long as their experts were qualified and their opinions
reasonable.61
B. CWA
The Clean Water Act is a pollution control statute that establishes a comprehensive
program designed to “restore and maintain the chemical, physical, and biological integrity
of the Nation's waters.”62 To achieve this goal, the CWA prohibits the discharge of
pollutants, including dredged or fill material, into navigable waters unless authorized by a
CWA permit.63 The CWA defines “navigable waters” as “waters of the United States,”
which, in turn, is defined by regulation to include certain wetlands.64

60

Id. at 243, quoting Sabine River, 951 F.2d at 678.
Id. (citing Sabine River, 951 F.2d at 678; Marsh, 490 U.S. at 378, 109 S.Ct. 1851 (“[w]hen specialists
express conflicting views, an agency must have the discretion to rely on the reasonable opinions of its own
qualified experts, even if, as an original matter, a court might find contrary views more persuasive.”)).
62
33 U.S.C. § 1251(a).
63
33 U.S.C. § 1311(a).
64
33 U.S.C. § 1362(7); 33 C.F.R. § 328.3(a)-(b).
61

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Section 404 of the CWA authorizes the Corps to regulate discharges of dredged
and fill material into wetlands through permitting procedures.65 In addition to passing a
public interest review which balances reasonably expected benefits against reasonably
foreseeable detriments, all CWA section 404 permits must meet guidelines issued by the
Environmental Protection Agency and the Corps under CWA section 404(b)(1).66 These
“404(b)(1) Guidelines” specify that the Corps must ensure that the proposed fill will not
cause significantly adverse effects on human health or welfare, aquatic life, and aquatic
ecosystems.67 To comply with this requirement, the Corps must make a written
determination of the effects of a proposed activity “on the physical, chemical, and
biological components of the aquatic environment ....”68
The 404(b)(1) Guidelines also provide that “no discharge of dredged or fill material
shall be permitted unless appropriate and practicable steps have been taken which will
minimize potential adverse impacts of the discharge on the aquatic ecosystem.”69 Under
the Guidelines, a project may generally not be permitted where there is “a practicable
alternative to the proposed discharge which would have less adverse impact on the
aquatic ecosystem, so long as the alternative does not have other significant adverse
environmental consequences.”70

65

33 U.S.C. § 1344.
See 33 U.S.C. § 1344(b)(1), 1344(e)(1); 33 C.F.R. § 320.4.
67
40 C.F.R. § 230.10(c)(1)-(3).
68
Id. § 230.11.
69
40 C.F.R. § 230.10(d).
70
40 C.F.R. § 230.10(a); see generally City of Shoreacres v. Waterworth, 332 F.Supp.2d 992, 1015–16
(S.D.Tex. 2004).
66

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C. RHA
The principal purpose in enacting the Rivers and Harbors Act71 was to facilitate the
federal government's ability to ensure that navigable waterways, like any other routes of
commerce over which it has assumed control, remain free of obstruction.72

“The

coverage of the Rivers and Harbors Act is broad, and its principal beneficiary is the United
States government.”73 Section 408 of the Rivers and Harbors Act makes it illegal for any
person to damage or impair a public work built by the United States to prevent floods.74
However, the Corps may “grant permission for the alteration or permanent occupation or
use of any of the aforementioned public works when ... such occupation or use will not be
injurious to the public interest and will not impair the usefulness of such work.”75
III.

STANDARD FOR SUMMARY JUDGMENT
A court should grant a motion for summary judgment when 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.”76 The party moving for summary judgment is initially responsible for
identifying portions of pleadings and discovery that show the lack of a genuine issue of

71

33 U.S.C. § 408.
Board of Com’rs of Southeast Louisiana Flood Protection v. Tennessee Gas Pipeline Co., LLC, 88
F.Supp.3d 615, 632 (E.D. La. 2015)(citing Wyandotte Transp. Co. v. United States, 389 U.S. 191, 201, 88
S.Ct. 379, 19 L.Ed.2d 407 (1967)).
73
Id. at 632-33 (citing In re S. Scrap Material Co., L.L.C., 713 F.Supp.2d 568, 575 (E.D.La. 2010) (Feldman,
J.) (citing Wyandotte Transp. Co. v. United States, 389 U.S. 191, 201, 88 S.Ct. 379, 19 L.Ed.2d 407
(1967))).
74
Id. at 633 (citing 33 U.S.C.A. § 408).
75
Id., n. 160 (quoting 33 U.S.C. § 408).
76
Fed. R. Civ. P. 56.
72

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material fact.77 A court must deny the motion for summary judgment if the movant fails
to meet this burden.78
If the movant makes this showing, however, the burden then shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.”79
This requires more than mere allegations or denials of the adverse party's pleadings.
Instead, the nonmovant must submit “significant probative evidence” in support of his
claim.80 “If the evidence is merely colorable, or is not significantly probative, summary
judgment may be granted.”81
A court may not make credibility determinations or weigh the evidence in ruling on
a motion for summary judgment.82 The court is also required to view all evidence in the
light most favorable to the non-moving party and draw all reasonable inferences in that
party's favor.83 Under this standard, a genuine issue of material fact exists if a reasonable
trier of fact could render a verdict for the nonmoving party.84
IV.

PARTIES’ POSITIONS, GENERALLY
A.

Plaintiffs

Plaintiffs maintain that the Corps issued the RHA 408 and CWA 404 permits based
on the premise that the project— “a massive crude oil pipeline, operated by a company

77

Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995).
Id.
79
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (quotations omitted).
80
State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990).
81
Anderson, 477 U.S. at 249 (citations omitted).
82
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
83
Clift v. Clift, 210 F.3d 268, 270 (5th Cir. 2000).
84
Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008).
78

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with a terrible safety track record, in one of the nation’s most sensitive and unique aquatic
environments” —would not result in any significant environmental impacts warranting an
EIS and was in the public interest.85 Plaintiffs argue that the Corps’ conclusions are
fundamentally flawed and contrary to law for two primary reasons.
First, Plaintiffs contend the Corps never took a “hard look” at the risk of oil spills in
the remote and uniquely aquatic environment of the Atchafalaya Basin. Rather, the Corps
“rubber-stamped” a risk assessment provided by Bayou Bridge, without independent
analysis, oversight, or input from other agencies with expertise.86 Plaintiffs also claim the
Corps ignored extensive evidence that the “proponent-supplied oil spill assessment” was
“hopelessly incomplete and one-sided.”87 Plaintiffs maintain Bayou Bridge’s analysis
“gravely underestimates the risk of an incident, as well as its potential size”; “overstates
the company’s ability to detect a spill, as well as its ability to respond to one in the remote
Atchafalaya Basin”; and “completely overlooks critical issues like the company’s worst-inthe-industry safety record, and the special risks posed by tar sands crude.”88

Further,

Plaintiffs claim that, rather than address these important issues in its environmental
review, which were repeatedly pointed out by Plaintiffs and others, the Corps simply
ignored them.
Second, Plaintiffs maintain that the Corps’ NEPA and CWA analysis ignored other

85

Rec. Doc. No. 202-2, p. 10.
Id.
87
Id.
88
Id.
86

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grave environmental impacts arising from the construction of the pipeline through the
Atchafalaya Basin, arguing that the creation of a major new channel across the Basin will
have serious and irreversible impacts to the Basin by changing water flows and
encouraging deposition of sediment that is the death knell of swamps. Plaintiffs contend
commenters repeatedly brought these concerns to the Corps’ attention, but the Corps
focused only on direct impacts and ignored serious indirect impacts of the project. Further,
Plaintiffs claim the Corps failed to recognize or mitigate for the significant hydrologic and
sediment impacts the project would cause. Plaintiffs also take issue with the Corps’
designation of most construction impacts as temporary, which Plaintiffs claim is based on
an assumption that the destroyed cypress-tupelo vegetation would grow back, an
assumption they contend is belied by the record. Plaintiffs contend the Corps’ failure to
address these impacts is unlawful, and the Court should grant summary judgment in
Plaintiffs’ favor and vacate the underlying permits pending full compliance with NEPA and
the CWA.
B.

The Corps

The Corps unsurprisingly disagrees with Plaintiffs’ position and contends it did not
“simply defer to the pipeline proponent” but did, indeed, engage in a lengthy and in-depth
inquiry with Bayou Bridge, requiring substantial revisions and updates to draft
environmental analyses and requesting and obtaining additional data and information, as
well as requesting comments and information from the public and other agencies.89 Also,

89

Rec. Doc. No. 220, p. 8.

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the Corps contends its analysis satisfies the “hard look” standard of NEPA and the public
interest analysis requirement of the CWA. The record demonstrates that the Corps
examined the nine major risk factors for an oil release and reasonably concluded such a
risk of a release in the Basin was low. Further, the Corps used a “worst case scenario”
spill model to look at the potential scale of that unlikely event and its potential impacts on
resources in the basin. Following this analysis, the Corps concluded that the risk of an
oil release was not likely to have a significant impact on the environment, and the Corps
maintains that its conclusions are supported by the record and entitled to substantial
deference under the law.
The Corps also claims the record demonstrates that it took a hard look at both
direct and indirect construction impacts in the Basin, as well as possible long-term
changes to sediment accretion and Basin hydrology. The Corps claims that, contrary to
Plaintiffs’ suggestion, there is no major new channel across the Basin; rather, the Bayou
Bridge pipeline is largely co-located alongside existing rights-of-way to minimize wetlands
disturbance. Moreover, the Corps notes that it required Bayou Bridge to take both shortand long-term measures following construction to ensure stabilization of disturbed areas
and to mitigate against increased turbidity. The Corps likewise required Bayou Bridge to
return the construction footprint to its pre-construction contours, preventing any changes
to the Basin’s hydrology. The Corps maintains these issues were addressed in the EAs,
and it reasonably concluded they were not significant, satisfying both NEPA and the
CWA.
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The Corps contends Plaintiffs’ challenge to its mitigation methodology was rejected
by the Fifth Circuit and should fail again here. The Corps maintains that the record
establishes that construction of the pipeline will not result in any permanent loss of
wetlands, and wetlands converted from scrub-shrub or forested habitat to herbaceous
habitat will continue to function. The Corps argues that its finding on this issue is
reasonable and comports with the Corps’ statutory and regulatory mandates. Additionally,
the Corps contends its disclosure of the conversion of those wetlands and finding that
those impacts are not significant fulfilled the Corps’ obligations under NEPA.
The Corps submits that the following facts are supported by the administrative
record. The Bayou Bridge pipeline is an approximately 163-mile long, 24-inch diameter
crude oil pipeline running from Lake Charles, Louisiana to St. James, Louisiana90 that is
capable of safely transporting 480,000 barrels of domestic crude oil per day to various
crude oil terminals for eventual transportation by existing pipelines to refineries on the
Gulf Coast.91 The Corps maintains that pipelines “are a safer, more environmentally
responsible, and more economical method of delivering large quantities of crude than
other delivery methods.”92
The Corps also notes that it does not permit or regulate oil and gas pipelines;
rather, the United States Department of Transportation, Pipeline and Hazardous Materials

90

BBP 337.
BBP 340.
92
Rec. Doc. No. 220, pp. 9-10 (citing BBP 343-45 (explaining lack of feasibility of truck and rail shipping of
crude)).
91

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Safety Administration (“PHMSA”) is the federal entity charged with establishing safety
standards for pipelines. Pursuant to 49 C.F.R. § 194.7(a), PHMSA fulfills part of this
responsibility by requiring pipeline operators to submit a spill response plan that meets
PHMSA’s requirements before the operator can “handle, store, or transport oil in th[e]
pipeline.” Further, PHMSA determines whether a spill response plan meets its regulatory
requirements.93
As this project required permits under Section 404 and Section 408, the Corps
completed EAs analyzing the likely impacts of construction and pipeline operation,
including in the Basin.94 While there is overlap in the analysis for the Section 404 and
Section 408 permits, the Corps contends each focuses on the different agency actions
required for the project. The Section 404 permit authorizes “dredge and fill” elements of
the project’s construction, associated mitigation, and the Corps’ environmental analysis
focuses on those elements. The Section 408 permission authorizes the project’s
crossings of federal projects and federal easements. Relevant to Plaintiffs’ claims, the
Section 408 EA analyzed the risk of an oil spill along the entire length of the pipeline and
used a model from PHMSA to estimate the likely scope of a “worst case” release through
a guillotine cut of an above-ground pipeline.95 The Corps maintains that the PHMSA data

93

49 C.F.R. § 194.119 (describing PHMSA’s process for reviewing and approving pipeline spill response
plans).
94
BBP 1-92 (§ 404 Memorandum for Record, including the Section 404 EA); BBP 327-471 (§ 408 EA).
95
BBP 354.

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from real-world pipeline spills demonstrates that this worst case scenario is extraordinarily
unlikely, and most pipeline spills are much smaller.96
The Corps notes that the Section 404 EA expressly incorporates, and properly
relies upon, the Section 408 EA, including the spill risk analysis and potential impacts
analysis. In approving the Section 404 permit and issuing a FONSI, the District
Commander “reviewed the information provided by the applicant, the comments received
from the public in writing and at the public hearing, the assessment prepared as part of
the Section 408 review and [the 404] assessment of the environmental impacts.”97 Thus,
the two EAs, while addressing separate agency actions, complemented each other and
informed the Corps about potential environmental impacts of the project’s construction,
crossings, and operations. Based on these EAs, the District Commander found that the
issuance of the Section 404 Permit and the Section 408 Permission would not result in a
significant impact to the physical environment.98
C.

Bayou Bridge

Bayou Bridge claims that Plaintiffs’ complaints about this project have already
been rejected by the Fifth Circuit, so the Plaintiffs are “repackag[ing]” their same claims
challenging the same agency actions.99 However, now there exists a full administrative
record which Bayou Bridge contends provides even greater support for the lawfulness of

96

Id.
BBP 91; see also Rec. Doc. 86 at 22 (finding that the Section 404 EA “clearly and explicitly references
and incorporates the finding of the Section 408 EA.”).
98
BBP 91; BBP 131-36.
99
Rec. Doc. No. 213-1, p. 10.
97

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the challenged agency actions.
Bayou Bridge states that the Corps “employed a rigorous and thorough yearlong
review process” before issuing the two permits at issue to Bayou Bridge for construction
of the pipeline.100 Bayou Bridge notes that, during this review process, the Corps sought
public comment, held a public hearing, extended the comment period, reviewed input
from Plaintiffs and others, considered a project-specific risk analysis, and oversaw the
creation of a worst-case-scenario oil spill model to help assess the potential impacts if a
leak were to occur. Further, the spill model, which was prepared in the manner that the
relevant federal agency prescribes, was designed to greatly overstate the effects of a
spill, and it assessed risks over the entire pipeline route.
At the end of the process, the Corps’ comprehensive EAs demonstrated that a
large spill could have grave consequences, but the Corps concluded that, because the
risk of such an event was low, granting the permits and allowing the project to proceed
would have no significant impact on the environment.

Thus, no EIS was deemed

necessary.
Bayou Bridge contends Plaintiffs are seeking relief regarding oil spills that the
Court has already precluded in ruling on the preliminary injunction request. Bayou Bridge
quotes this Court’s previous finding that the Corps gave “extensive and appropriate
consideration” to the various environmental concerns and that the record was “replete

100

Id., p. 10.

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with evidence that the Corps did indeed take a ‘hard look’ at the risk of oil spills.”101 Bayou
Bridge contends Plaintiffs’ arguments remain no more than disagreements with how the
Corps evaluated this information, and, as the Court has already held, is no basis for
holding an agency action to be arbitrary or capricious.
Bayou Bridge argues Plaintiffs’ construction impact claims fare no better because
the Corps considered and mitigated indirect impacts on the environment and supported
its conclusion that such impacts would be temporary. Further, the Fifth Circuit held that
the Court “clearly erred” in agreeing with Plaintiffs and finding that any wetlands “will be .
. . irretrievably lost.”102 Thus, Bayou Bridge maintains Plaintiffs’ motion should be denied,
and the Court should grant summary judgment in favor of the Corps.
D.

Stupp Bros. Inc.

Stupp offers essentially the same arguments as Bayou Bridge in favor of the
Corps, and they will not be restated here.
V.

ANALYSIS
A.

Oil Spills

To the extent Plaintiffs re-urge the same oil spill arguments rejected by the Court
in its Ruling on their motion for preliminary injunction,103 the Court declines to reconsider
these arguments. Based on the Section 404 and 408 EAs, the Court found that it was
not improper for the Corps to rely upon the Section 408 EA in reaching its conclusions in

101

Rec. Doc. No. 86, pp. 27-28.
Atchafalaya Basinkeeper, 894 F.3d at 699 n.3 (omission in original) (internal quotation marks omitted).
103
Rec. Doc. No. 86.
102

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the Section 404 EA.104

The Court further found that: “page 91 of the Section 404 EA

clearly and explicitly references and incorporates the finding of the Section 408 EA. The
Court is also satisfied that the Section 408 EA was not too narrow in scope to support the
FONSI as the spill model utilized in both was the same, and the analysis was conducted
every 200 feet along the entire length of the 162-mile pipeline.”105
The Court also found that the Corps took the “hard look” required by the law at the
risk and potential impacts of oil spills in the Basin, and the Court likewise found no error
with the Corps’ reliance on PHMSA’s expertise in assessing this risk.106 The completed
administrative record serves only to bolster the Court’s previous findings, not undermine
them as Plaintiffs suggest.
Plaintiffs argue that, considering the completed administrative record, it is apparent
that the Section 408 EA is “grossly inadequate with respect to oil spills and leaks,” and
the Corps’ conclusion of no significant impact of the risk and impact of oil spills fails to
satisfy NEPA because the Corps failed to consider several critical issues that were
brought to the Corps’ attention during the administrative process.107 In conjunction with
this argument, Plaintiffs request that the Court reconsider its denial of their motion to
supplement the administrative record with oil spill risk/impact analysis from their experts.

104

Id. at pp. 21-22.
Id. at p. 22.
106
Id. at pp. 26-27.
107
Rec. Doc. No. 202-2, pp. 21-22.
105

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The Court declines this invitation for the reasons set forth in that Ruling.108
Nevertheless, the Court will address some new arguments raised by Plaintiffs and
will expound on its prior findings in light of the completed administrative record.
1. Independent Review/ “Rubber Stamp” Review
Plaintiffs argue that the Corps failed to undertake any independent review of Bayou
Bridge’s analysis of spill risks and impacts and, rather, delegated this responsibility to
Bayou Bridge and ultimately “rubber stamp[ed] [] a consultant-prepared NEPA
document.”109 Plaintiffs maintain that the Corps never applied any expertise whatsoever
to the question of oil spills and never conducted any independent analysis of the EA
written by Bayou Bridge.

Rather, Plaintiffs claim, “it accepted without question or

oversight whatever BBP gave it, even though the company’s self-interest in downplaying
risks should have been self-evident … .”110 Plaintiffs claim the Corps allowed Bayou
Bridge to draft the Section 408 EA “with only the scantest input.”111 Plaintiffs cite to
allegedly “preposterous” and “false” claims in the EA submitted by Bayou Bridge and
allegedly adopted by the Corps without independent analysis or review.112 Plaintiffs
complain again about the “worst case spill” analysis (that the Court has previously held

108

Rec. Doc. No. 198. Accordingly, the Court will not consider arguments by Plaintiffs that would require
the Court to consider extra-record evidence or that would merely require the evaluation of competing expert
evidence.
109
Rec. Doc. No. 202-2, p. 22 (quoting Sierra Club v. Sigler, 695 F.2d 957, 962 n.3 (5th Cir. 1983)(“[A]n
agency may not delegate its public duties to private entities…particularly private entities whose objectivity
may be questioned on grounds of conflict of interest.”)).
110
Id. at pp. 23-24.
111
Id. at p. 24.
112
Id.

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to be adequate under NEPA and the CWA) and argue: “This is a case where the Corps
uncritically relied on complex technical information submitted by a self-interested
proponent, and rubber-stamped it with no attempt whatsoever to verify its conclusions.”113
Plaintiffs further contend that the Corps “does not appear to have any relevant
expertise on staff, nor did it turn to outside agencies like PHMSA …to supply it.”114
Plaintiffs maintain the Corps’ alleged deference and reliance upon PHMSA’s expertise is
undermined by the administrative record, which they contend reveals the Corps never
sought or received any input from PHMSA, or any other agency, on the oil spill issue.
Plaintiffs contend the Corps’ representation that PHMSA has the primary responsibility
for the issuance of special permits for the operation of crude oil pipelines is “simply
wrong.”115 Plaintiffs claim no PHMSA permit or approval was ever required or obtained
for this project, and Bayou Bridge operated the pipeline for months without a PHMSAapproved spill plan.
The Corps objects to Plaintiffs’ characterization of its independent oil spill risk
review and analysis and its reliance on PHMSA data in concluding that the risk of an oil
spill in the Basin is low. The Corps maintains that Plaintiffs’ contention that it delegated
its NEPA responsibilities to Bayou Bridge is false and undermined by the administrative
record, which demonstrates that the Corps “undertook an exacting analysis of the

113

Id. at p. 25.
Id.
115
Id. at p. 26. Plaintiffs cite Sierra Club v. U.S. Army Corps of Engineers, 803 F.3d 31, 55 n.8 (D.C.C.
2015) (“Pipelines transporting oil within the United States are not subject to any general requirement of
federal governmental evaluation and approval.”).
114

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materials provided by the proponent, requested changes, sought and obtained additional
information, and consulted with other federal agencies.”116 Thus, the Corps argues it
fulfilled its NEPA obligations and did, indeed, take a “hard look” at this project.
First, the Corps acknowledges that Corps’ regulations allow for the permit applicant
to provide information required for NEPA and other environmental reviews, but these
regulations clearly require that the Corps conduct an independent and impartial review of
that information.117

When an applicant submits environmental documentation for a

project, the Corps’ District convenes a team of engineers and specialists to conduct a
technical review under a District-specific review plan.118

The Corps claims the record

shows that the Corps and Bayou Bridge “engaged in an over one-year long back-andforth about the information in the EA, including the information about the risk of oil spills
central to Plaintiffs’ challenge.”119 The Corps cites the portions of the record which contain
multiple redline drafts of the Section 408 EA with comments by Corps officials120 and
numerous examples of correspondence requiring specific additional information from
Bayou Bridge:
See BBP 2276-77 (email requesting, among other things, more information
about “potential oil spill effects on waterways, fisheries and wildlife” and
more discussion about “monitoring and operational practices that would
minimize risk from a spill or petroleum release”); BBP 3226-30 (email
providing updated information and maps in response to Corps requests);
116

Rec. Doc. No. 220, p. 18.
Id. at pp. 26-27 (citing 40 C.F.R. § 1506.5(b); 33 C.F.R. pt. 325, App. B(8)(f); see also BBP 18480-82
(Corps District 408 review procedures); BBP 22121-23 (Corps 408 environmental compliance
requirements)).
118
See BBP 22124-25 (explaining the District-led Agency Technical Review process).
119
Rec. Doc. No. 220, p. 27.
120
BBP 1676-1819; BBP 1920-2057.
117

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BBP 4084-89 (proposed drill plan from proponent in response to Corps
concerns regarding the risk of hydraulic fracture and inadvertent drilling fluid
returns at the Calcasieu river crossing); BBP 4191-4193 (Corps responding
to proponent’s frustration with the speed of Corps review); BBP 4232-45
(letter from Corps’ engineering review team requesting a resubmitted
project proposal with additional information in response to Corps
comments); BBP 7224-66 (memorandum documenting review and
comments from Corps’ operations division).121
The Corps insists that the record demonstrates that the Corps consulted with other
relevant agencies and governmental bodies during this review process and sought input
regarding the project.122

At the conclusion of this review process, the leaders of the

Corps review teams signed documents confirming their independent Agency Technical
Review of the information submitted by Bayou Bridge.123 The Corps maintains this
independent review, as well as consultation with stake-holders, other federal agencies,
and non-federal governmental entities, satisfied the Corps’ NEPA obligations.
Moreover, the Corps contends the record reveals that the Corps did not “rubber
stamp” a project that began with Bayou Bridge’s initial 35-page draft assessment124 and
ended over a year later with a 92-page Section 404 EA and a 145-page Section 408
EA.125 The Corps stated: “This is not a case like Sigler, where the Corps only had two
months to review a draft EIS prepared by the project proponent.”126 Rather, the Corps

121

Rec. Doc. No. 220, p. 27.
BBP 12842-43 (comments from EPA regarding minimizing impacts, hydrology, sediment, and
mitigation); BBP 14443 (NOAA providing no objections to the issuance of the permit); BBP 15831-49 (letters
of no objection from non-federal sponsors).
123
BBP 248; BBP 250.
124
BBP 15850-85.
125
BBP 1-92; 327-471.
126
Rec. Doc. No. 220, p. 28 (citing Sierra Club v. Sigler, 695 F.2d 957, 962 n. 3 (5th Cir. 1983).
122

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contends that, in reviewing this project, the Corps “refused to be rushed, and instead
sought and obtained more information and took the time necessary to make its own
informed decision.”127 The Corps notes that the Section 404 EA was written solely by the
Corps, and the Section 408 EA went through substantial revisions and changes in
response to comments and questions by the Corps.
The Corps also defends its deference to PHMSA’s regulatory oversight over
pipelines, including spill response plans and pipeline construction and maintenance. The
Corps notes that “‘courts . . . have favorably viewed similar agency reliance on applicable
regulatory standards when assessing impacts as part of a NEPA required analysis.’”128
Further, the Corps contends Plaintiffs’ arguments do not accurately portray the record.
While Plaintiffs claim the Corps could not have actually relied on and deferred to PHMSA’s
expertise because the record does not document any correspondence between the two
agencies, Plaintiffs ignore record evidence that the Corps utilized the PHMSA spill
database to evaluate the risk of an oil release129 and that the Corps utilized a PHMSA
spill model.130 As to Plaintiffs’ complaint that the Corps did not require Bayou Bridge to
produce and obtain approval of a pipeline spill response plan prior to issuing the Section
404 permit and Section 408 permission, the Corps counters that spill response plans and

127

Id.
Id. at p. 30 (quoting Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 255 F. Supp. 3d 101,
126 (D.D.C.) (citing EarthReports, Inc. v. FERC, 828 F.3d 949, 957 (D.C. Cir. 2016) and Sierra Club v.
Clinton, 746 F. Supp. 2d 1025, 1047 (D. Minn. 2010)).
129
BBP 420, 442.
130
BBP 353-55.
128

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the timing of their approval are firmly in PHMSA’s regulatory domain.131
The Court finds that Plaintiffs have not carried their summary judgment burden on
this issue. Indeed, the Court has already considered and rejected the proposition that the
Corps failed to fully analyze the risk and impacts of an oil spill and that the Corps
improperly delegated that responsibility to PHMSA.132

The now fully developed

administrative record further supports the Court’s findings on this issue.
First, the Court finds that the Corps followed the governing regulations in allowing
Bayou Bridge to prepare initial draft EA assessments from which to work.133 Indeed, “[t]he
Corps’ regulations do not require the Corps to undertake an independent investigation or
to gather its own information upon which to base an EA.”134 The administrative record in
this case demonstrates that the Corps “independently evaluate[d] the information
submitted” and “t[ook] responsibility for the scope and content of the” EAs and the
underlying information’s accuracy.135 Plaintiffs’ contention that the Corps simply dropped
the issue of spills after Bayou Bridge promised to submit a spill response plan136 is belied
by the record. Plaintiffs complain that, when a Corps employee told Bayou Bridge its
Facility Response Plan (FRP) should be “reviewed by Corps staff to ensure that it meets
131

49 C.F.R. § 194.119; see also EarthReports, 828 F.3d at 957 (recognizing that, once an agency has
evaluated the environmental impacts of a proposed use, it may properly conclude that it has “‘no grounds’
for requiring more stringent conditions than those required by the” agency with regulatory jurisdiction over
the use.).
132
See Rec. Doc. 86 at p. 27 (rejecting Plaintiffs’ argument that “the Corps simply dismissed the risk [of an
oil spill] and referred the matter to PHMSA” as “meritless in light of the substantial attention given to the
issue as set forth in both EAs.”).
133
40 C.F.R. § 1506.5(a)-(b).
134
Friends of the Earth v. Hintz, 800 F.2d 822, 834 (9th Cir. 1986).
135
40 C.F.R. § 1506.5(a)-(b).
136
Rec. Doc. No. 202-2, p. 24 n. 6.

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requirements,” Bayou Bridge responded that its “existing FRP” for “the region” would “be
updated to include the [B]ayou [B]ridge [P]ipeline upon completion of construction per
PHMSA requirements.”137

However, Plaintiffs fail to note that Bayou Bridge also

explained that the Corps staff member preparing the EA had already reviewed and
provided “[e]dits to the FRP related information,” and that other planning documents for
spill responses—called Geographic Response Plans (GRPs)—“have been provided to
the” Corps.138 Moreover, Plaintiffs should be aware that the Corps considered the GRPs
because they are identified on the administrative record index,139 and Plaintiffs’ counsel
received them when the parties discussed a protective order.140 Thus, as Bayou Bridge
notes, Plaintiffs are disingenuous in accusing the Corps of relying on a response plan that
“did not even exist at the time the Corps made its final decision.”141
Further, both EAs confirm that the Corps reviewed the data and analysis of oil spill
risks in concluding that the risk of a large oil spill in the Basis was “minimal.”142 Both EAs
also confirm that the Corps comprehensively “assessed the environmental impacts” of a
leak or spill under a variety of circumstances.143 Thus, Plaintiffs essentially ask the Court
to find that the District Commander lied in his representations of independent review. Not

137

BBP1028.
BBP1015 (referencing “Howard”); see also BBP465 (identifying “Howard” Ladner of the Corps).
139
BBP23997-4532.
140
Rec. Doc. No. 164, p. 3.
141
Rec. Doc. No. 202-2, p. 15; see also BBP23997-4532 (emergency response prep, planning, and tactics
at federal project crossings).
142
BBP90; BBP443.
143
BBP464.
138

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only are credibility determinations improper on summary judgment, the record simply
does not support such a finding.
Regarding Plaintiffs’ claim that the Corps’ staff lacks relevant expertise for the oil
spill risk analysis, the record fails to substantiate this claim as well.

The District

Commander who made the FONSI decision and public-interest findings for this project is
a civil engineer with two Master of Science degrees.144 The Corps’ team on the Section
408 EA included experienced civil and geotechnical engineers, a facilities engineer, a
biologist, and a marine biologist,145 and the Corps employs scientists and engineers with
relevant expertise in “Fuel Facilities (Petroleum, Oils and Lubricants)” and divisions that
specialize in environmental engineering and geology, water resources, and water
resources remote sensing/GIS technology.146
Ultimately, the Court finds, again, that the Corps properly deferred to PHMSA and
relied on its expertise in evaluating the risks and impacts of oil spills for this project.147 It

144

Leadership: Colonel Michael Clancy, U.S. Army Corps of Eng’rs, https://web.archive.
org/web/20171228015631/https://www.mvn.usace.army.mil/About/Leadership/Bio-ArticleView/Article/474408/colonel-michael-clancy (archived Dec. 28, 2017) (last visited Aug. 16, 2019). Colonel
Clancy’s three-year term as District Commander ended on June 11, 2019. See Gov. Edwards Expresses
Gratitude to New Orleans Corps of Engineers Commander Col. Clancy, Office of the Governor (June 11,
2019), http://gov.louisiana.gov/index.cfm/newsroom/detail/ 1988.
145
BBP247.
146
See Centers of Expertise, U.S. Army Corps of Eng’rs, https://www.usace.army.mil/About/Centers-ofExpertise (last visited Aug. 16, 2019). The Corps is also a congressionally designated member of the
Interagency Coordinating Committee on Oil Pollution Research (ICCOPR). 33 U.S.C. § 2761(a)(3). In fiscal
year 2016-2017 alone, the ICCOPR oversaw 316 member projects and generated over 250 publications
“related to the prevention of, preparedness for, and response, to oil spills.” Report to Congress: ICCOPR
FY 2016-2017 Activities, U.S. Coast Guard 1 (2018), https://www.dco.uscg.mil/Portals/9/CG5R/ICCOPR/Files/USCG_ICCOPR%20Oil%20Pollution%
20Research%20(FY%202016-2017)_Approved%20Version.pdf?ver=2018-11-28-154311-093.
147
See Rec. Doc. No. 86, p. 22.

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was proper for the Corps to rely on the worst-case spill model prepared in accordance
with PHMSA specifications148 and on PHMSA’s extensive database of pipeline
incidents.149 There is no basis upon which to find that the Corps neglected its legal
obligation to perform an independent review of the oil spill risks from the project, that the
Corps simply “rubber stamped” Bayou Bridge’s submissions, or that the Corps improperly
delegated its obligations to, and relied solely on information from, other federal agencies.
2. CWA Section 404 Public Interest Analysis
Plaintiffs argue that the Corps gave no consideration to the risks/impacts of oil
spills for purposes of the Section 404 public interest analysis. Plaintiffs again claim that
the Corps has “sidestepped” the consideration of spills by deferring to PHMSA, an
argument the Court has rejected now three times, and further claims that the Corps’ “lone
sentence” in the Section 404 EA stating that it considered oil spill risks in the Section 408
EA fails to comply with the CWA because the Section 404 EA only complies with NEPA
standards.150 Plaintiffs argue that the Corps failed to incorporate any findings from the
Section 408 EA into its CWA analysis. Plaintiffs urge that this failure to consider oil spills
under CWA standards and regulations resulted in an arbitrary and capricious decision.
The Corps defends its public interest analysis under the CWA, arguing that it
specifically addressed the issue of oil spills in the context of analyzing “Water Supply &

148

BBP353-55.
BBP422; BBP1362-63.
150
Rec. Doc. No. 202-2, p. 36.
149

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Conservation” as part of the “Public Interest Review.”151 Further, pursuant to PHMSA
regulations, the Corps stated that Bayou Bridge would be required to prepare a Facility
Response Plan to address its response to any oil spill in addition to installing “remote
actuated shut-off valves” at periodic intervals along the pipeline.152 Also, in evaluating
the issue of environmental justice pursuant to Executive Order 12898, the Corps notes
that it determined “that risk of a large spill resulting in significant adverse environmental
impacts to any particular resource or community was determined to be minimal.”153 The
Corps also reviewed PHMSA’s active 2004 to 2016 database and calculated that the
“incident frequency for ‘onshore pipeline, including valve sites’ is 0.00079 incidents per
mile-year. Additionally, if any release did occur, it is likely that the total release volume of
a spill would be 4 barrels (bbls) or less based on historical spill volumes.”154 The Corps
maintains Plaintiffs argument is “overly formalistic” as the record firmly establishes that
the Corps considered the potential for oils spills and reasonably determined the low risk
of a significant spill.
Pursuant to this analysis, the Corps concluded that an existing framework of
requirements was in place to protect the public from the limited risk of a spill. The Corps
rejects Plaintiffs contention that it is the Corps’ responsibility to police whether PHMSA
and the Louisiana Department of Environmental Quality (“LDEQ”) are functioning

151

BBP 1, 54-55.
BBP 24; see also BBP 26-27 (BBP would be liable for remediation of any oil spill for which it was
responsible).
153
BBP 90.
154
Rec. Doc. No. 220, p. 34 (quoting BBP 80 (quotation in original)).
152

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properly; rather, the Corps maintains it reasonably and legally deferred to those agencies
where appropriate.
The Court has already ruled that “it was not improper for the Corps to rely upon
the Section 408 EA in reaching its FONSI determination in the Section 404 EA.”155
Plaintiffs claim that the Corps’ oil spill analysis may have satisfied NEPA but failed to
satisfy the CWA is without merit. The Court finds that the Corps reached substantively
identical public interest determinations under both Section 404 and 408. Applying the
relevant CWA regulations discussed above to the information found in the administrative
record, the Court finds no merit to Plaintiffs’ argument on this issue. As the Corps noted,
“courts are encouraged to ‘uphold a decision of less than ideal clarity if the agency’s path
may be reasonably discerned.’”156 At the very least, on this issue, the Corps’ path is
reasonably discerned as the oil spill analysis for both the Section 408 EA and 404 EA
was rationally connected and closely tied together.
3. Diluted bitumen (“dilbit”)
Plaintiffs claim that the Corps failed to consider information submitted during the
administrative review process that the pipeline could be used to transport diluted bitumen
(“dilbit”) from Canadian tar sands. Plaintiffs cite documentation of the recent purchase of
a significant interest in the pipeline system by Enbridge, the company that ships most

155

Rec. Doc. No. 86, p. 22.
Handley v. Chapman, 587 F.3d 273, 281 (quoting Bowman Transp., Inc. v. Arkansas–Best Freight Sys.,
Inc., 419 U.S. 281, 286, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974)).

156

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Canadian tar sands.157 Plaintiff maintains that Enbridge has explicitly stated that the
purpose of this purchase was to enable it to move dilbit to Gulf refineries and terminals
via the Bayou Bridge pipeline.158

Further, Plaintiffs claim Enbridge was previously

involved in one of the worst pipeline spills in history, the Marshall, Michigan dilbit disaster
that the NTSB attributed to both “pervasive organizational failures” at Enbridge as well as
inadequate regulation by PHMSA.159
Plaintiffs posit that the distinction between conventional crude and tar sands
bitumen is highly consequential in terms of both spill risks and impacts, and the
transportation of tar sands increases the risks of pipeline ruptures. That the Corps did
not address this possibility in its oil spill risk assessment, according to Plaintiffs, further
renders the Corps’ FONSI arbitrary and capricious.
The Corps responds to Plaintiffs’ dilbit concerns, calling them speculative but
nevertheless directing the Court to information in the administrative record demonstrating
that the Corps did, indeed, consider this concern.160 However, the Corps contends the
articles cited by Plaintiff do not state that the Bayou Bridge pipeline will be used to
transport dilbit, nor do they mention the Bayou Bridge pipeline at all.161 The Corps
maintains that the purpose of the Bayou Bridge pipeline is to transport domestic crude oil

157

BBP 23768.
BBP 23770 (“This week’s deal by Enbridge, however, will allow more Canadian crude and oil sands
barrels to flow to those Gulf Coast refineries.”).
159
BBP 23861.
160
BBP 1472-75.
161
BBP 23768-68.
158

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to refineries on the Gulf Coast.162 Additionally, the Corps contends it modeled spill risks
using light crude oil because the Corps judged this to result in the worst case spill in both
scale and impact.163
The Court finds that Plaintiffs have failed to demonstrate evidence to support the
likelihood that the Bayou Bridge pipeline will carry dilbit such that the Corps’ treatment of
this possibility resulted in an arbitrary and capricious decision. Notwithstanding the fact
that Plaintiffs offered this information well beyond the comment period,164 the documents
cited by Plaintiffs do not support their assertion that Enbridge intends to move dilbit to
Gulf refineries and terminals through the Bayou Bridge pipeline. As Bayou Bridge notes:
“the article that Plaintiffs cite (at 24) explains that Enbridge acquired its interest so it could
redirect lighter crude oil from existing Enbridge pipelines to the DAPL and ETCO lines
that connect to Bayou Bridge, thus allowing Enbridge to use its existing lines (i.e., not
Bayou Bridge) for dilbit.”165 This concern is highly speculative and is insufficient to find
the Corps’ conclusion arbitrary and capricious.
B. Environmental Impacts of Construction
Plaintiffs also claim the Corps’ EAs are insufficient as the Corps failed to analyze
“other grave environmental impacts” resulting from the construction in the Basin.166

162

BBP 340.
BBP 24804.
164
BBP1472-75 (September 28, 2017 letter); BBP7267 (404 comment period, as extended, closed January
31, 2017); BBP4412 (408 comment period closed March 9, 2017).
165
Rec. Doc. No. 231-1, p. 36 (citing BBP23770 (explaining that by adding DAPL and ETCO to Enbridge’s
network, the company can “free up more space on its mainline system for additional volumes of Canadian
oil to make its way south”).
166
Rec. Doc. No. 202-2, p. 10.
163

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Plaintiffs argue that no serious consideration was given to concerns that changing water
flows and encouraging deposition of sediment in the Basin would result in significant
hydrologic and sediment impacts.

Plaintiffs contend the Corps’ designation as

environmental impacts as “temporary” – such as the loss of cypress-tupelo vegetation –
is undermined by the record.
1. Alteration of sediment
Plaintiffs correctly note that NEPA requires consideration of the “indirect” effects
of agency decisions.167 Indirect effects are those “caused by the action and are later in
time or farther removed in distance, but are still reasonably foreseeable.”168 An impact is
“reasonably foreseeable” if a “person of ordinary prudence would take it into account in
reaching a decision.”169 The CWA also recognizes that “secondary impacts” are a critical
consideration when permitting the destruction of wetlands under Section 404.170
Secondary effects are defined as “effects on an aquatic ecosystem that are associated
with a discharge of dredged or fill materials, but do not result from the actual placement
of the dredged or fill material.”171 Moreover, “[i]nformation about secondary effects on
aquatic ecosystems shall be considered” prior to issuance of a Section 404 permit.172

167

40 C.F.R. § 1508.25.
Id. § 1508.8; BBP 22880 (Corps’ guidance) (“The district must consider the direct and indirect effects of
the proposed project needing the Corps’ permit authorization.”)
169
City of Shoreacres v. Waterworth, 420 F.3d 440, 453 (5th Cir. 2005).
170
BBP 4446; 40 C.F.R. § 230.11; Riverside Irr. Dist. v. Andrews, 758 F.2d 508, 512 (10th Cir. 1985) (“To
require [the Corps] to ignore the indirect effects that result from its actions would be to require it to wear
blinders that Congress has not chosen to impose.”).
171
40 C.F.R. § 230.11(h).
172
Id.
168

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Plaintiffs claim that changes to the hydrology or sediment deposition in a waterway
resulting from a project are precisely the kind of “indirect” or “secondary” impacts that
require close scrutiny under these standards.173 Pursuant to the regulations, Plaintiffs
maintain that changes to the flow and circulation of water must be considered as part of
the public interest analysis and the significance of impacts from the proposed
discharge.174 Further, the Corps acknowledged that sediment transport is a basic function
of a stream system; thus, changes in sediment transport are a foreseeable consequence
of altering channel morphology.175 Additionally, these types of changes are particularly
significant in the context of cumulative effects from past changes to the Basin’s hydrology
and sediment.176
Plaintiffs contend that, not only was the Court correct to decide that these impacts
on water flow and sediment deposition constituted irreparable harm to the Basin, the
administrative record strongly supports this conclusion.177

Plaintiffs highlight the

information in the record documenting the vast wetland loss in the Basis as a result of

173

Rec. Doc. No. 202-2, p. 38 (citing e.g., Idaho Rivers United v. Probert, 2016 WL 2757690, at *11–12 (D.
Idaho, May 12, 2016) (agency must consider sediment delivery into river system as indirect and cumulative
impact); see also 40 C.F.R. § 230.11(a) (“Potential changes in substrate elevation and bottom contours
shall be predicted[.]”) (emphasis added); id. § 230.11(b) (“Consideration shall also be given to the potential
diversion or obstruction of flow, alterations of bottom contours, or other significant changes in the hydrologic
regime.”).
174
40 C.F.R. §§ 230.23, 230.11.
175
BBP 25467.
176
BBP 1633 (past pipeline construction has “severely impacted the natural hydrology and circulation” of
the basin); BBP 1640; BBP 4447; supra at 8–9 (NEPA requires adequate discussion of cumulative impacts).
177
See Rec. Doc. No. 86, pp. 16-17; BBP 11670 (expressing concern over “large indirect hydrological
impacts that cause siltation and vast changes to the forest canopy”); BBP 4446 (“direct, indirect, secondary,
and cumulative impacts… remain overlooked”); BBP 11660 (mitigation “inadequate to address inevitable
indirect and cumulative wetland effects” from project of this scale); BBP 4438 (“By altering north-south flow
within the Atchafalaya, Bayou Bridge would even degrade fertile swamps vital to wildlife and harvest.”).

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indirect impacts through changes in wetland hydrology.178 Issues of heaving flooding
during times of high sediment loads were noted, along with accretion in the Basin resulting
in the deprivation of sediment and ultimate loss of coastal land.179
Despite this information being presented to the Corps, Plaintiffs claim that neither
the Corps’ decisions or underlying analysis mention any of these impacts to the Basin’s
hydrology or sediment accretion. Rather, Plaintiffs contend the Corps limited its analysis
to only the direct impacts of wetlands loss and mitigation therefor. Thus, Plaintiffs claim
any secondary impacts have been ignored in the Corps’ CWA analysis, finding simply in
the Section 404 EA that “significant secondary effects…are not anticipated” from the
pipeline.180 Plaintiffs acknowledge that the Corps refers to indirect impacts in the Section
408 EA but complains that this is only in the limited context of temporary turbidity resulting
from construction.181
Plaintiffs further disagree with any argument by the Corps that it relied on mitigation
via the Louisiana Wetland Rapid Assessment Method (“LRAM”) to address these pipeline
impacts. Plaintiffs argue, while LRAM is used to calculate mitigation credits for direct
losses of wetlands, there is nothing in LRAM to offset indirect impacts like increased
sedimentation.182 Further, Plaintiffs complain that the Corps removed the requirement to
mitigate for cumulative and indirect impacts, a requirement that had been part of previous

178

BBP 1651.
BBP 1659; 1635.
180
Section 404 EA at 58.
181
Section 408 EA at 60.
182
BBP 24995; BBP 4464-67 (“LRAM does not include a direct method for evaluating cumulative,
secondary, and indirect impacts”).
179

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protocol.183 Because the EPA explicitly requires mitigation for both direct and indirect
impacts,184 the Corps’ failure to mitigate indirect impacts to wetlands was arbitrary and
capricious.
The Corps rejects Plaintiffs’ contention that the Corps’ conclusion that significant
secondary effects are not anticipated was conclusory because the Corps claims it did
specifically examine these factors in setting out its conclusions consistent with the 404(b)
guidelines. The Corps acknowledges that it was required to consider secondary effects
for the project:
Secondary effects are effects on an aquatic ecosystem that are associated
with a discharge of dredged or fill materials, but do not result from the actual
placement of the dredged or fill material. Information about secondary
effects on aquatic ecosystems shall be considered prior to the time final
section 404 action is taken by permitting authorities.185
Pursuant to these guidelines, the Corps notes that it considered the effect of
digging the trench for placement of the pipe, but it ultimately concluded that there would
not be an adverse impact because the permit required that the natural, preexisting
contours be restored and the area allowed to revegetate.186

The Corps notes that

Plaintiffs failed to acknowledge that, after the pipes have been installed approximately
four feet below the preexisting ground level, the original contours and elevation of the

183

BBP 6533 (“unlike the Corps’ previous mitigation method, the modified Charleston method, the LRAM
apparently does not require mitigation for indirect, secondary, or cumulative impacts”); BBP 5088; BBP
4467 (predicting that more projects would require EISs because mitigation fails to account for indirect,
secondary, and cumulative wetland impacts).
184
BBP 12843.
185
Rec. Doc. No. 220, p. 35 (quoting 40 C.F.R. § 230.11(h)(1)).
186
BBP 45.

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land must also be restored. Further, the Corps determined that, while construction would
have a temporary effect on water circulation, that circulation is anticipated to return to
normal after the contours and elevation are restored to preexisting conditions.187
Regarding sediment and turbidity, the Corps acknowledged that there will be increased
amounts of sediment in the water column during construction but likewise found that this
impact would be minimized through specific construction techniques, such as the use of
berms or coffer dams. Thus, the Corps concluded that this effect should diminish over
time and leave no adverse effect once the construction has finished.188
The Corps also contends its analysis of this issue satisfied NEPA. Notably, both
EAs acknowledge the possibility of indirect impacts to the basin, including “the
introduction of sediments from the cleared construction [right-of-way] to wetlands in or
adjacent to the action areas” and “modifications to the hydrology of the wetlands.”189 To
minimize the risk of suspended sediment or increased turbidity during construction, the
Corps points to the record demonstrating that it required Bayou Bridge to implement
sediment control measures during construction.190 Additionally, to minimize the risk of
long-term increases in suspended sediment or turbidity, the Corps required Bayou Bridge
to take measures to stabilize disturbed areas after the project was complete.191 The

187

Id.
BBP 46; see also BBP 50 (“Cumulative effects on the aquatic ecosystem”); BBP 51 (“Secondary effects
on the aquatic ecosystem”).
189
BBP 393; accord BBP 11-12; BBP 46; BBP 51; BBP 161.
190
BBP 46; see also BBP 39; BBP 97; BBP 112; BBP 382; BBP 664-67 (construction plan discussing
temporary sediment control measures during construction).
191
BBP 667-69 (construction plan discussing temporary and permanent stabilization procedures after
completion, as well as revegetation procedures).
188

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Corps maintains that, considering these permit conditions, it reasonably concluded that
“[a]ny reduction in water quality resulting from the proposed construction activities is
anticipated to be of short duration, and localized to an area immediately surrounding the
construction site. The proposed project should have little short-term and no long-term
effect.”192 Hence, the Corps claims these findings show that it reasonably concluded that
construction would not have a significant impact on sediment or turbidity in the Basin.
The Corps also argues that the record disputes Plaintiffs’ claims that the pipeline
creates a major new channel through the Basin because the EAs fully explain how the
“majority of the proposed activity is adjacent to existing pipeline [rights-of-way].”193 The
EAs require Bayou Bridge to “return wetlands to pre-construction contours”194 in order to
minimize the possibility of any “long-term changes in drainage and flow patterns,
flooding[,] and sediment distribution and accretion in environmentally sensitive areas such
as the Atchafalaya Basin.”195 The Corps notes that it considered and rejected Plaintiffs’
early request that Bayou Bridge change the hydrology of the basin by disturbing remnant
spoil piles from pre-CWA pipeline construction196 “precisely because it would result in a
new, permanent discharge of material into the Corps’ jurisdictional waters and alter the
status quo hydrology of the basin.”197 The Corps asserts that the record and the EAs

192

BBP 46; BBP 393.
BBP 51.
194
BBP 393.
195
BBP 51; see also BBP 161 (“All excavated material placed in temporary spoil piles in the work space
will be restored to preconstruction contours to minimize impacts on hydrology.”).
196
BBP 4224.
197
Rec. Doc. No. 220, p. 37 (citing BBP 4224).
193

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show that the Corps took a hard look at the issue of whether pipeline construction would
alter the hydrology of the Basin, and the Corps included permit conditions to minimize
any impact.198 Thus, the Corps reasonably concluded that pipeline construction would not
significantly alter the Basin’s hydrology, and the Corps maintains that Plaintiffs’ difference
of opinion on this technical determination is no basis to set aside the Corps’ permitting
decisions.199
Plaintiffs admit this issue was not raised at the preliminary injunction stage; thus,
the Fifth Circuit has not spoken on this issue of indirect impacts. After reviewing the
record, the Court finds that the Corps did not ignore the issue of indirect impacts in the
Basin. The Court finds that the Section 408 EA clearly explains that the pipeline, which
is co-located with existing pipelines, constructed in segments,200 supports the conclusion
that the Bayou Bridge pipeline would “not result in . . . the creation of a pipeline canal.”201
Further, the record demonstrates that the Corps expressly considered and analyzed
indirect impacts on the Basin.202 Under NEPA, the Corps explicitly considered “[i]ndirect
impacts on wetland resources that could result from . . . the introduction of sediments
from the cleared construction [right-of-way] . . . and modifications to the hydrology of the
wetlands as the result of subsurface flow along the pipeline.”203 The Corps concluded

198

BBP 1; BBP 39; BBP 96-98.
Rec. Doc. No. 220, p. 37 (citing Sabine River Auth. v. U.S. Dept. of Interior, 951 F.2d 669, 678 (5th Cir.
1992)).
200
BBP437.
201
BBP458; BBP459 (Bayou Bridge’s “preferred alternative is co-located with the existing pipelines and
would not result in the creation of a new pipeline corridor through the area.”).
202
BBP51; BBP58; BBP393.
203
BBP393.
199

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that the pipeline “would only result in minimal indirect impacts on wetlands,”204 because
Bayou Bridge would be required to implement measures both during and after
construction to capture and remove sediment and “[t]o ensure that the hydrology of [the]
wetlands is maintained.”205
The record also demonstrates that the Corps considered secondary effects on the
aquatic system for purposes of the CWA and concluded that construction would not result
in an “expected loss of aquatic habitats, hydrology, or wetland contours.”206 The Corps
made additional “[f]actual determinations” under the CWA about effects on “[w]ater
circulation” and “[s]uspended particulate,” which refers to hydrology and sediment
deposits.207 The Corps explained that permit conditions placed on Bayou Bridge would
resolve Plaintiffs’ concerns about the “potential [for] long-term changes in drainage and
flow patterns, flooding and sediment distribution and accretion in environmentally
sensitive areas such as the Atchafalaya Basin.”208 The Corps also required that Bayou
Bridge “suitably maintain normal hydrologic flows” [] “to the greatest extent practicable[by]
. . . maintain[ing] an approximate 50 foot gap for approximately every 500 feet of
temporary side cast material.”209

The Corps further reserved the authority to order

“additional compensatory mitigation” and “further remediation actions,” including “[r]eplanting of desirable native tree species, erosion control, [and] regrading,” if it deemed

204

BBP394.
BBP393; BBP664 (setting forth methods designed to capture and remove sediment).
206
BBP45-46; BBP51.
207
BBP45-46; see 40 C.F.R. § 230.11.
208
BBP51; BBP50; BBP58.
209
BBP97.
205

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such actions necessary.210

The administrative record simply does not support the

contention that the Corps failed to mention or consider the secondary impacts regarding
sediment as a result of the pipeline as the record is replete with instances that the Corps
did just that. The Court finds that the Corps complied with its NEPA and CWA obligations
when considering secondary impacts of the pipeline, and Plaintiffs have not carried their
burden of showing that the Corps’ conclusions are not entitled to deference in this regard.
2. Mitigation of Wetlands Loss
Finally, Plaintiffs object to the Corps’ allegedly arbitrary designation of the loss of
forested wetlands as “temporary,” because Plaintiffs maintain this loss is permanent as it
is nearly impossible to regenerate cypress forests. Plaintiffs claim that this “temporary”
designation by the Corps allowed the Corps to unlawfully understate the significance of
the environmental impacts, and escape the preparation of an EIS, and further freed the
Corps from obtaining proper mitigation for such losses:

“The distinction between

temporary and permanent loss of wetland function is a key factor under LRAM.211 But
the Corps fumbled a critical fact when it determined that the project could proceed with
mitigation that is far too low.”212
The Court notes that, at the preliminary injunction stage, the Court agreed with
Plaintiffs’ arguments on this issue, and enjoined further construction in the Basis pending
preparation of an EIS to address what the Court likewise perceived to be a permanent

210

BBP97.
Rec. Doc. No. 202-2, p. 44 (citing BBP 25030).
212
Id. (citing Ky. Riverkeeper, Inc. v. Rowlette, 714 F.3d 402, 413 (6th Cir. 2013)).
211

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loss of wetlands and a failure to appropriately mitigate same.213 However, Plaintiffs ignore
the Fifth Circuit’s decision reversing this Court’s finding and explicitly rejecting the
arguments214 advanced herein by Plaintiffs on summary judgment. The Fifth Circuit
pointedly noted that “the Corps’ NEPA obligation was limited to discussing relevant
factors and explaining its decision, not to reaching conclusions that this court or the district
court approves.”215 The Fifth Circuit held that: “after considering all the circumstances,
including—importantly—measures imposed on Bayou Bridge to comply with the CWA,
this project did not have a ‘significant’ environmental impact.”216 The court continued:
On their face, the 200+ pages in both EAs here acknowledged potential
environmental impacts from the project, discussed third parties’ concerns
about those impacts, referenced in detail the hydrological, horticultural and
wildlife environment in the affected acreage of the Basin, and explained how
and where mitigation bank credits and construction protocols would be
adopted to render the watershed impact not “significant.” The court’s
misplaced view that the Corps issued a “mitigated FONSI” is an error of law
that steered it in the wrong direction. Perhaps the Corps’ discussion might
have been improved with the addition of certain details, but the Corps’ path
could “reasonably be discerned” from the EAs and other publicly available
documents and should have been upheld. Nat’l Ass’n of Home Builders v.
Defs. of Wildlife, 551 US 644, 658, 127 S.Ct. 2518, 2530, 168 L.Ed.2d 467
(2007) (internal quotation marks omitted).217
The Fifth Circuit also rejected the notion that the Corps had not required proper
mitigation for these impacts and upheld the Corps use of the LRAM methodology. “In

213

Rec. Doc. No. 86, pp. 34-44.
The Fifth Circuit also rejected Plaintiffs’ claim and this Court’s finding that the Corps failed to adequately
address the cumulative impacts of the history of noncompliance by relevant oil companies.
215
Atchafalaya Basinkeeper 894 F.3d at 698.
216
Id.
217
Id. at 698-99.
214

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general, the Supreme Court has held that the use of scientific methodology like that
contained in the LRAM is subject to particular judicial deference.”218 The court found that,
How the LRAM was utilized in the instant 404 EA is clearly referenced, if
not fully explained in background, in twelve pages. Each of the eight
watersheds crossed by this project is individually described, followed by a
summary description of the mitigation bank credits required for each,
followed by a summary chart for each watershed.219
...
That the LRAM analysis “rational[ly] connect[ed]” the out-of-kind mitigation
bank purchases in the Basin to the “aquatic functions and services” lost by
the project is all that was required either by the CWA regulation, by NEPA,
or by the Supreme Court. Motor Vehicle Mfrs., 463 U.S. at 43, 103 S.Ct. at
2866–67.220
Noting that Bayou Bridge was required to buy bottomland hardwood credits within
the Basin watershed only because it had already purchased all available cypress/tupelo
swamp credits, the court found that “[t]he Corps was entitled to make this decision rather
than revert to the less-preferred alternatives prescribed in the regulations.221 The court
continued:
Second, the Corps’ responsibility under the CWA is to ensure the protection
of aquatic functions and services, which does not include the protection of
tree species as such. The LRAM, properly read and understood, measures
and scales precisely the aquatic functions and services characteristic of
each type of Louisiana wetland and corresponding mitigation banks
containing those wetlands. The scales differed for bottomland hardwoods
and cypress/tupelo swamp on the basis of factors noted above. Appellees
have not challenged the scientific validity of the LRAM-based analysis and
calculations.
218

Id. at 700 (citing Marsh v. Oregon Nat. Res. Council, 490 U.S. 360, 377-78, 109 S.Ct. 1851, 1861, 104
L.Ed.2d 377 (1989)).
219
Id.
220
Id.
221
Id.

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Third, as the 404 EA clearly states, “[t]he Louisiana Wetland Rapid
Assessment Method was utilized to determine the acquisition of a total of
714.5 acres of suitable habitat credits, from approved mitigation banks
within the watershed of impact.” It was on the basis of the LRAM that the
Corps determined how many acres Bayou Bridge was required to purchase
from mitigation banks within the Basin. Whether bottomland hardwoods or
cypress/tupelo, both mitigation banks constitute wetlands, and the Corps
concluded that the required purchases made up for the temporary or
permanent conversion from one type of wetland (bottomland hardwood or
cypress/tupelo swamp) to scrub shrub wetland. And as has been
mentioned, Appellees did not contest the out-of-kind mitigation used in part
to compensate for wetland conversion in the Terrebonne watershed.222
The court likewise found that the Section 404 EA noted that the Corps’ conclusions
were in line “with ‘the preferred hierarchy as set forth by the USACE,’ i.e. in-basin, in-kind
mitigation first; in-basin, out-of-kind second; etc.223

The court discussed the permit

conditions set forth above that the Corps placed on Bayou Bridge to combat these
environmental impacts and found that:
In evaluating this project, the Corps conducted careful research; hewed to
the governing regulations and the scientifically based LRAM tool;
conditioned the permit in accordance with evolved best management
practices; required purchases of acreage within mitigation banks that will
provide the optimal replacement of lost aquatic functions and services; and
produced two significantly reasoned EAs.224
Finally, this explanation of the Corps’ decision process is readily understood
on the basis of the EAs, supplemented by the publicly available LRAM. That
the district court’s opinion did not express this understanding no doubt is
partly attributable to its expedited judicial process, which pressed the
parties’ presentations and lacked the full administrative record. But
regardless of these difficulties, the record suffices to supply a “rational
connection” between the facts about the project and its CWA implications

222

Id. at 701-702.
Id. at 702.
224
Id. at 702-703.
223

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and the ultimate decision rendered. The Corps’ decision was thus not
“arbitrary and capricious.”225
The Fifth Circuit also found erroneous this Court’s determination that 142 acres of
wetlands would be “irretrievably lost,” noting that
[a]ccording to the 404 EA, 142 acres will be converted from forested
wetlands to scrub shrub wetlands and 78 of these acres will have previously
been cypress/tupelo swamp (designated PFO2 in the LRAM tables).
“Herbaceous wetlands” also provide important aquatic functions. Because
there will be no filling of wetlands in this project, converting them to dry land,
the Corps found no permanent loss of wetlands.226
Nothing Plaintiffs have presented or argued on these issues upsets the holding of
the Fifth Circuit on those same issues, and this Court is bound by that decision. Plaintiffs
have failed to carry their summary judgment burden on these issues.

225
226

Id. at 703.
Id. at 699 n. 3.

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VI.

CONCLUSION
For the reasons set forth above, Plaintiffs’ Motion for Summary Judgment227 is

DENIED. The Motions for Summary Judgment by the Corps,228 Bayou Bridge,229 and
Stupp,230 are GRANTED.
Judgment shall be entered accordingly.
IT IS SO ORDERED.
Baton Rouge, Louisiana, this 25th day of March, 2020.

S

________________________________
SHELLY D. DICK, CHIEF DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA

227

Rec. Doc. No. 202.
Rec. Doc. No. 220.
229
Rec. Doc. No. 213.
230
Rec. Doc. No. 214.
228

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