The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LORETTO O’REILLY, JR., ET AL. CIVIL ACTION
VERSUS NO: 21-1027
UNITED STATES ARMY CORPS OF SECTION: "A" (5)
ENGINEERS, ET AL.
ORDER AND REASONS
The following motions are before the Court: Motion for Summary Judgment
(Rec. Doc. 41) filed by the plaintiffs, Loretto O’Reilly, Healthy Gulf, Coalition for
Responsible Zoning, and the Sierra Club and its Delta Chapter (“Plaintiffs”); Cross
Motion for Summary Judgment (Rec. Doc. 89) filed by All State Financial Co. (“All
State”); Cross Motion for Summary Judgment (Rec. Doc. 91) filed by the United
States Army Corps of Engineers and Lt. General Scott A. Spellmon (collectively and
singularly “the Corps”). All motions are opposed. The motions, submitted for
consideration on May 11, 2022, are before the Court on the briefs without oral
argument.
This civil action is a challenge to the Corps’ approval of two dredge and fill
permits issued under Section 404 of the Clean Water Act, for the destruction and
paving-in of a total of 40 acres of forested wetlands near Covington, St. Tammany
Parish, Louisiana. (Rec. Doc. 1, Complaint at 1).
Judicial review of final agency action is conducted under the auspices of the
Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706. Plaintiffs allege that the
Corps violated both the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321,
et seq., and the Clean Water Act (“CWA”), 33 U.S.C. § 1251, et seq., when it issued the
permits.
The two permits at issue in this action are the Timber Branch II permit (MVN-
2018-0215-EPP), which was obtained by All State, and the Ochsner Blvd. Extension
Road permit (MVN-2017-00075-EPP) (“the Ochsner permit”), which was obtained by St.
Tammany Parish (“the Parish”). Plaintiffs seek to have both permits enjoined for
violations of both the CWA and NEPA and remanded to the Corps for compliance with
those governing laws.1
Thus far in the litigation the Court has addressed emergency and preliminary
injunctive relief pertaining to the Ochsner permit only. (Rec. Doc. 63, Order and
Reasons denying TRO); (Rec. Doc. 84, Order and Reasons denying PI). Work pursuant
to that permit was underway and progressing when this action was filed. Construction
under the Timber Branch II permit issued to All State was not imminent when the case
was filed.
I. BACKGROUND
On February 6, 2018, Bruce Wainer of All State applied to the Corps for a
Section 404 wetlands fill permit to create the Timber Branch II subdivision, a proposed
multi-use commercial and residential development in unincorporated St. Tammany
Parish southwest of Covington, Louisiana. (Complaint ¶ 80); (TB-AR0942, 0956). The
total project acreage of Timber Branch II as described in the application is 69.19
1 All State was allowed to join the litigation as an intervenor. Plaintiffs argued that All State’s
intervention should be limited to the Timber Branch II permit, (Rec. Doc. 17, Opposition), but the
magistrate judge allowed the intervention as to both permits. (Rec. Doc. 26, Order). The Parish
was allowed to intervene without opposition. (Rec. Doc. 32, Order).
forested acres; wetlands comprise 24.58 of those acres. Wainer owns the entire 200-
acre tract within which Timber Branch II would be sited. (Complaint ¶ 96).
The (Little) Tchefuncte River runs to the immediate east of the Timber Branch II
tract. (Id. ¶ 85). The Timber Branch, which is a tributary to the Tchefuncte, runs
immediately south of the proposed Timber Branch II site. (Id. ¶ 88). The 24.58 acres of
wetlands at issue in the Timber Branch II project are adjacent to the Tchefuncte River
and its tributary, the Timber Branch. (Id. ¶ 89).
On November 3, 2020, the Corps approved the Section 404 permit for the Timber
Branch II development. (Id. ¶ 116); (TB-AR0002). Along with the permit, the Corps
issued a Memorandum for Record (“MOR”), which is the decision document supporting
the Corps’ decision to issue the permit. (TB-AR0021). The Corps determined that a full
Environmental Impact Statement was not required. Plaintiffs contend that this permit is
substantially similar to the fill project called Timber Branch I whose 404 permit the Court
enjoined in 2003, involving the same tract of land. See O’Reilly v. United States Army
Corps of Engr’s, No. 04-940, 2004 WL 1794531 (E.D. La. Aug. 10, 2004), affirmed in
part and reversed in part, 477 F.3d 225 (5th Cir. 2007).
Plaintiffs allege that the Timber Branch II site’s wetlands help to absorb runoff
during storm events and replacing those wetlands with impermeable concrete is going
to exacerbate the already serious flooding problem in the area. (Id. ¶¶ 91-104).
Moreover, development of the Timber Branch II site would result in habitat loss for a
litany of local wildlife. (Id. ¶¶ 107-08). But even beyond Timber Branch II, Plaintiffs
allege that the owner of the tract has plans to develop the entire 200-acre site because
he has recently requested a rezoning approval from the Parish for portions of the site;
and a large percentage of the remainder of the 200-acre Timber Branch II site is
wetlands. (Id. ¶¶ 113-115).
On November 10, 2016, the Parish applied for a permit to fill 31.5 forested acres
of land to build a two-mile extension road between Highway 1077 and Ochsner
Boulevard in order to alleviate local traffic congestion. (AR0146). Wetlands comprise
15.8 of the 31.5 acres to be filled. (Complaint ¶ 148).
During the public notice period, Plaintiffs did not comment upon or object to the
requested permit. Representatives of the plaintiff organizations did meet, however, with
the Corps to voice their concerns about the proposed road. In fact, no one formally
opposed the Ochsner permit. Both the Environmental Protection Agency (EPA) and the
Louisiana Department of Wildlife and Fisheries commented on the project, expressing
their concerns. (AR0124; AR0127). But it would be a mischaracterization of their
submissions to call them “opposition” to the project. Those agencies’ recommendations
were essentially what federal law would require the Corps to consider anyway. The
Louisiana Department of Environmental Quality later issued a Water Quality
Certification for the project. (AR0121).
The Supplemental Administrative Record demonstrates that the Corps
questioned the Parish about various aspects of the Ochsner permit application and the
decision to locate the extension in the chosen area. (Rec. Doc. 59).
On November 17, 2020, the Corps approved the Section 404 permit for the
Ochsner Blvd. Extension project. (AR0001). Along with the permit, the Corps issued a
Memorandum for Record (“MOR”), which is the decision document supporting the
Corps’ decision to issue the permit. (AR0014). The Corps determined that a full
Environmental Impact Statement was not required.
The Parish began the public bid process for the construction of the Ochsner
extension road in May and June 2021. The contract was awarded to Magee Excavation
& Development, LLC on October 13, 2021, and Magee received its notice to proceed
from the Parish on November 4, 2021. (Rec. Doc. 61-2, Affidavit). The preparatory work
on the site of the project began not long after.
Plaintiffs complain that the Timber Branch II and Ochsner Blvd. Extension Road
permits are only two of dozens of Section 404 permits that the Corps has issued in
rapidly-developing west St. Tammany Parish, which have collectively eliminated
hundreds of acres of flood-absorbing wetlands and replaced them with impermeable
concrete. (Complaint ¶ 2). Primary among Plaintiffs’ concerns (which include loss of
wildlife habitat, traffic and noise problems, and diminution of water quality) is that one of
the most critical functions of wetlands is their capacity to absorb floodwaters, and
according to Plaintiffs, flooding has reached epic proportions in the region. (Id. at 1). At
the risk of oversimplifying Plaintiffs’ challenge to the Corps’ decision to issue the Timber
Branch II and Ochsner permits—because Plaintiffs do challenge the permits on
numerous grounds—the crux of Plaintiffs’ complaint is that the Corps took a myopic
view with respect to each permit without considering the detrimental cumulative impacts
that these two additional permits would contribute to in light of all of the other permits
issued in that region.
Plaintiffs filed their complaint for declaratory and injunctive relief on May 27,
2021. The administrative record was lodged on November 15, 2021, (Rec. Doc. 36),
and supplemented on January 10, 2022, (Rec. Doc. 59). On November 22, 2021,
Plaintiffs moved for leave to file a motion for summary judgment pertaining to both
permits that exceeded the page limits imposed by the Local Rules. (Rec. Doc. 38). The
Court granted that motion but rather than have the motion for summary judgment
submitted on the December 8, 2021 date requested by Plaintiffs, a date which would
have required the oppositions to be filed immediately after the Thanksgiving holiday
weekend, the Court set the motion for submission on January 19, 2022. (Rec. Doc. 40,
Order).
The Corps and the intervenors sought to adjust the briefing schedule which then
prompted Plaintiffs’ to file their first motion for a temporary restraining order (“TRO”).2
(Rec. Doc. 48, Motion). On the same day that they moved for a TRO, Plaintiffs filed a
motion for preliminary injunctive relief. (Rec. Doc. 49, Motion for Preliminary Injunction).
In light of the flurry of motions being filed, including those for emergency relief, the Court
held a telephone status conference on December 15, 2021. (Rec. Doc. 54, Minute
Entry). The parties proposed various approaches to structuring the motion practice in
this case and the Court urged all parties to reach an agreement. The parties reached
much common ground as to scheduling but days later Plaintiffs filed their amended
motion for a temporary restraining order. (Rec. Doc. 55, Motion). The Court then issued
its own briefing schedule. (Rec. Doc. 57, Order).
2 The first motion for a temporary restraining order was filed as an ex parte/consent motion with
no notice of submission but the Court instructed the Clerk to accept the deficient motion. The
Court dismissed that motion as moot (Rec. Doc. 57, Order), after Plaintiffs filed their amended
motion for a TRO.
On January 13, 2022, the Court denied the motion for a temporary restraining
order as to the Ochsner permit, explaining that the question whether the work at issue
should be enjoined pending a decision on the merits should be decided on Plaintiffs’
motion for a preliminary injunction. (Rec. Doc. 63, Order and Reasons at 6). Because
the motion for a preliminary injunction would be submitted relatively soon and
expeditiously addressed, and because the work taking place at the time pursuant to the
Ochsner permit was preparatory in nature, a TRO was not necessary.3 (Id.).
On February 18, 2022, the Court entered its Order and Reasons denying the
motion for a preliminary injunction as to the Ochsner permit. (Rec. Doc. 84, Order and
Reasons). As of the time that the briefing was complete as to that permit, the Parish had
already spent over $4,000,000.00 in public funds on the Ochsner Blvd. Extension Road
project. (Rec. Doc. 61-1, Long affidavit). The Court explained why Plaintiffs had not
demonstrated a substantial likelihood of success on the merits as to the Ochsner permit
claim.4 (Rec. Doc. 84, Order and Reasons at 12-14).
The parties’ respective motions for summary judgment on the merits as to both
the Ochsner permit and the Timber Branch II permit are now ripe for decision.
3 In their motion for a temporary restraining order, the Plaintiffs had limited their arguments to a
single issue, the alternatives analysis, i.e., that the Corps failed to adequately address
alternatives that avoid the destruction of wetlands. The Court did not address whether Plaintiffs
had satisfied the substantial likelihood of success on the merits prong as to alternatives
because the Court was persuaded that other aspects of the case militated against issuing a
TRO pending the preliminary injunction hearing.
4 Plaintiffs point out that during the proceedings for emergency and preliminary injunctive relief
regarding the Ochsner permit, they presented to the Court only a portion of their case and the
applicable law. (Rec. Doc. 93, Opposition at 4 n.2). Therefore, the denial of preliminary relief
does not mean that they cannot prevail nonetheless on the merits.
II. DISCUSSION
Governing Law
The Court’s review of the Corps’ decision to issue the challenged permits is
subject to the APA’s “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law” standard. City of Shoreacres v. Waterworth, 420 F.3d 440, 445
(5th Cir. 2005) (quoting 5 U.S.C. § 706(2)(A); Shell Offshore v. Babbitt, 238 F.3d 622,
627 (5th Cir. 2001)). This is a demanding standard. Atchafalaya Basinkeeper v. United
States Army Corps of Eng’rs, 894 F.3d 692, 697 (5th Cir. 2018). The standard of review
is a deferential one, regardless of whether the Corps’ decision is challenged under the
CWA or NEPA or both. Id. at 445. The Court is not permitted to conduct a de novo
review of the permitting decision and ultimately substitute its own determination for that
of the Corps’. Town of Abita Springs v. United States Army Corps of Engr’s, 153 F.
Supp. 3d 894, 921 (E.D. La. 2015) (citing Avoyelles Sportsmen’s League, Inc. v. Marsh,
715 F.2d 897, 904 (5th Cir. 1983)). The Court must simply review the Corps’ decision,
as supported by the administrative record, and affirm it (even if the Court disagrees)
unless it is arbitrary or capricious. Id. (citing Ethyl Corp. v. EPA, 541 F.2d 1, 36 (D.C.
Cir. 1976)).
Nevertheless, the agency must examine the relevant data and articulate a
satisfactory explanation for its action including a “rational connection between the facts
found and the choice made.” Atchafalaya Basinkeeper, 894 F.3d at 697 (quoting Motor
Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983)). In
reviewing that explanation, the court must “consider whether the decision was based on
a consideration of the relevant factors and whether there has been a clear error of
judgment.” Id.
Ordinarily, an arbitrary and capricious decision is one in which the agency has
relied on factors which Congress had not intended it to consider, or one in which the
agency entirely failed to consider an important aspect of the problem, or one in which
the agency offered an explanation that runs counter to the evidence before the agency,
or is so implausible that it could not be ascribed to a difference in view or the product of
agency expertise.5 Fath v. Tex. Dept. of Trans., 924 F.3d 132, 136 (5th Cir. 2018)
(quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. 29 at 43).
The Corps’ permitting decision must comply with both the CWA and NEPA.6
O’Reilly, 477 F.3d at 229 n.1 (citing Sierra Club v. Sigler, 695 F.2d 957, 967 (5th Cir.
1983)). Unlike the CWA, which has substantive environmental goals, NEPA imposes
procedural requirements on federal agencies requiring them to consider and analyze
the environmental impact of their actions. City of Shoreacres, 420 F.3d at 450 (citing
Robertson v. Methow Valley Citizens Council, 109 S. Ct. 1835, 1846 (1989)); O’Reilly,
477 F.3d at 228 (quoting Coliseum Square Ass’n, Inc. v. Jackson, 455 F.3d 215, 224
(5th Cir. 2006)). Most notably, it is NEPA that directs federal agencies to prepare an
Environmental Impact Statement (“EIS”) for “major Federal actions significantly affecting
5 Importantly, review within the proper administrative framework is based on the agency’s
administrative record as a whole and not just the four corners of the EA. See Atchafalaya Basin
Keeper, 894 F.3d at 700.
6 No one has questioned the applicability of both bodies of law to the permit at issue—the CWA,
because the permits will involve the discharge of dredged or fill material into wetlands, see City
of Shoreacres, 420 F.3d at 446 n.2 (citing 33 U.S.C.§ 1344(a); 33 C.F.R. § 328.3(a)(2)), the
regulation of which has been delegated by Congress to the Corps, Avoyelles Sportsmen’s
League, 715 F.2d at 911 (citing 33 U.S.C. §§ 1344, 419), and NEPA, because permitting the
Ochsner extension road and the Timber Branch II development constitutes “major Federal
actions significantly affecting the quality of the human environment,” 42 U.S.C. § 4332(C).
the quality of the human environment,” except in certain qualifying situations.7 O’Reilly,
477 F.3d at 228 (citing 42 U.S.C. § 4332(2) (emphasis added); Sabine River Auth. v.
U.S. Dept. of Interior, 951 F.2d 669, 676 (5th Cir. 1992)). An Environmental Assessment
(“EA”) is a “concise” public document prepared by the federal agency to “briefly” provide
sufficient evidence and analysis for determining whether to prepare an EIS or issue a
Finding of No Significant Impact (“FONSI”). 40 C.F.R. § 1508.9(a)(1). An EA shall
include brief discussions of the anticipated environmental impacts of the proposed
action and alternatives. Id. § 1508.9(b). An EA is intended to be a brief and concise
document, normally not exceeding 15 pages. 33 C.F.R. § 230.10(a)-(c). But while the
EA’s discussion of the required permitting factors can and should be brief, it must also
be sufficient to demonstrate “reasoned decision making” and cannot omit “a significant
environmental concern.” Fritiofson v. Alexander, 772 F.2d 1225, 1236 (5th Cir. 1985)
(citing Foundation on Econ. Trends v. Heckler, 756 F.2d 143, 154 (D.C. Cir. 1985)). But
NEPA plays no role in requiring the agency to favor an environmentally preferable
course of action. Sabine River Auth., 951 F.2d at 676.
To assist federal agencies in determining whether an EIS is required pursuant to
NEPA, the Council on Environmental Quality (“CEQ”) has been authorized to
promulgate guidelines in the form of regulations.8 O’Reilly, 477 F.3d at 228 (citing 40
C.F.R. § 1500.3; Coliseum Square, 465 F.3d at 224). Federal agencies must consider
7 The Council on Environmental Quality regulations applicable to the NEPA EIS determination
define “significantly” as requiring considerations of both context and intensity. 40 C.F.R. §
1508.27. The regulation lists ten factors for an agency to consider when assessing intensity. Id.
§ 1508.27(b).
8 As a courtesy to the Court, Plaintiffs have included as Appendix 1 to their motion for summary
judgment a copy of the CEQ’s NEPA regulations that were applicable to the permitting decisions
at issue. (Rec. Doc. 41-14). The regulations have since been revised.
the cumulative or incremental environmental impacts of their actions. “Cumulative
impact” is the impact on the environment which results from the incremental impact of
the action when added to other past, present, and reasonably foreseeable future actions
regardless of what agency or person undertakes such other actions. 40 C.F.R. §
1508.7. Cumulative impacts can result from individually minor but collectively significant
actions taking place over a period of time. Id. Federal agencies must take a “hard look”
at the consequences of their actions in preparing detailed studies for projects that will
significantly impact the environment and in deciding how much study is required. Fath,
924 F.3d at 136 (citing Robertson v. Methow Valley Citizens Council, 490 U.S. 332,
349-50 (1989)). The Corps’ NEPA obligation is limited to discussing relevant factors and
explaining its decision, not to reaching conclusions in which the court concurs. O’Reilly,
477 F.3d at 228 (citing Robertson v. Methow Valley Citiz. Council, 490 U.S. 332, 350
(1989)).
The Corps issues § 404 (of the CWA) permits under the guidance and
requirements imposed by its own regulations as well as the CWA’s § 404(b)(1)
guidelines developed by the EPA. See 33 C.F.R. Pt. 320; 40 C.F.R. Pt. 230. The
404(b)(1) guidelines provide that the Corps must ensure that the proposed fill material
will not cause any significantly adverse effects on human health or welfare, aquatic life,
aquatic ecosystems, or recreational, aesthetic, or economic values. 40 C.F.R. §
230.10(c)(1)-(4). The 404(b)(1) guidelines prohibit a dredge and fill permit if 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. 40 C.F.R. § 230.10(a). Consideration
of practicable alternatives must include the option of “not discharging into the waters of
the U.S.” Id. § 230.5(c). In cases where the proposed project is not water dependent,
the 404(b)(1) guidelines mandate a presumption that practicable alternatives “that do
not involve special aquatic sites” like wetlands are available “unless clearly
demonstrated otherwise.” Id. § 230.10(a)(3).
The 404(b)(1) guidelines also require examination of the cumulative effects on
the aquatic ecosystem of the permitting decision. Id. § 230.11(g). Cumulative impacts
are the changes in an aquatic ecosystem that are attributable to the collective effect of a
number of individual discharges of dredged or fill material. Id. § 230.11(g)(1). Although
the impact of a particular discharge may constitute a minor change in itself, the
cumulative effect of numerous such piecemeal changes can result in a major
impairment of the water resources and interfere with the productivity and water quality
of existing aquatic ecosystems. Id. The Corps’ own permitting regulations provide for a
“public interest” review that includes consideration of cumulative impacts. 33 C.F.R. §
320.4(a)(1).
Section 404 permits are also subject to mitigation requirements. 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. 40 C.F.R. § 230.10(d). The Corps’ regulations (developed in
cooperation with the EPA) provide standards and criteria for the use of all types of
compensatory mitigation. 33 C.F.R. § 332.1(a)(1). Compensatory mitigation for
unavoidable impacts may be required to ensure that an activity requiring a § 404 permit
complies with the 404(b)(1) guidelines. Id. § 332.1(c)(3). Compensatory mitigation
means the restoration (re-establishment or rehabilitation), establishment (creation),
enhancement, and/or in certain circumstances preservation of aquatic resources for the
purposes of offsetting unavoidable adverse impacts which remain after all appropriate
and practicable avoidance and minimization has been achieved. Id. § 332.2. It includes
the use of a mitigation bank or an in-lieu fee program. Id. Mitigation bank means a site,
or suite of sites, where resources (e.g., wetlands, streams, riparian areas) are restored,
established, enhanced, and/or preserved for the purpose of providing compensatory
mitigation for impacts authorized by DA permits. Id.
In general, a mitigation bank sells compensatory mitigation credits to permittees
whose obligation to provide compensatory mitigation is then transferred to the mitigation
bank sponsor. Id. In general, the required compensatory mitigation should be located
within the same watershed as the impact site, and should be located where it is most
likely to successfully replace lost functions and services, taking into account such
watershed scale features as aquatic habitat diversity, habitat connectivity, relationships
to hydrologic sources (including the availability of water rights), trends in land use,
ecological benefits, and compatibility with adjacent land uses. Id. § 332.3(b)(1).
Plaintiffs’ Standing
A preliminary issue in every case such as this one is whether the party bringing
the lawsuit has standing. Sabine River Auth., 951 F.2d at 673.
Plaintiffs contend that they have standing to challenge the permits at issue and
they have provided a significant amount of briefing and evidentiary support for this
contention. No party has questioned the plaintiffs’ standing to challenge the permits at
issue.
But standing has both constitutional and prudential limitations, Optimus Steel,
LLC v. United States Army Corps of Engr’s, 492 F. Supp. 3d 701, 715 (E.D. Tex. 2020)
(citing Bennett v. Spear, 520 U.S. 154, 162 (1997)), the former of which enforces the
Constitution’s non-waivable case-or-controversy requirement, and the latter of which
embodies judicially self-imposed limits on the exercise of federal jurisdiction, Cibolo
Waste, Inc. v. City of San Antonio, 718 F.3d 469, 473 (5th Cir. 2013) (citing Elk Grove
Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004)). Although challenges to prudential
standing are waivable if not raised, Board of Miss. Levee Comm’rs v. EPA, 674 F.3d
409, 417-18 (5th Cir. 2012), constitutional standing implicates subject matter jurisdiction
and therefore is not waivable, cannot be conferred by consent, and must be considered
by the Court even if not questioned by the opposing party. See Ford v. NYLCare Health
Plans, 301 F.3d 329, 331-32 (5th Cir. 2002) (citing SEC v. Forex Asset Mgmt., LLC, 242
F.3d 325, 328 (5th Cir. 2001)).
Article III standing requires a plaintiff to show: “(1) an injury in fact (2) that is fairly
traceable to the actions of the defendant and (3) that likely will be redressed by a
favorable decision.” Cibolo Waste, 718 F.3d at 473 (citing Procter & Gamble Co. v.
Amway Corp., 242 F.3d 539, 560 (5th Cir.2001). An injury in fact is “an invasion of a
legally protected interest which is (a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical.” Id. (citing Lujan v. Defenders of Wildlife, 504
U.S. 555, 560 (1992)). Additionally, in the context of NEPA, beyond constitutional
standing requirements the plaintiff must establish that the injury he complains of “falls
within the ‘zone of interests’ sought to be protected by the statutory provision whose
violation forms the legal basis for his complaint.” Sabine River Auth., 951 F.2d at 675
(quoting Lujan v. Nat’l Wildlife Feder., 497 U.S. 871, 883 (1990)).
The plaintiffs in this case are Loretto O’Reilly, Jr. (an individual), Healthy Gulf (a
Louisiana non-profit corporation), Coalition for Responsible Zoning (a Louisiana
corporation), and Sierra Club (Delta Chapter) (a non-profit organization throughout the
United States with a chapter in Louisiana).
Associational standing for an organization may be established if at least one
member of the organization would have standing to sue in his or her own right. Nat’l
Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d
185, 191 (5th Cir. 2012), abrogated on other grounds by New York State Rifle & Pistol
Ass'n, Inc. v. Bruen, 142 S. Ct. 2111 (2022) (citing Tex. Demo. Party v. Benkiser, 459
F.3d 582, 587-88 (5th Cir. 2006)). An individual plaintiff must show an injury in fact
(concrete and particularized and actual or imminent), that is fairly traceable to the
challenged action of the defendant, that is likely to be redressed by a favorable
decision. Friends of the Earth, Inc. v. Laidlaw Env't Servs. (TOC), Inc., 528 U.S. 167,
180 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–561 (1992)).
Mr. O’Reilly has submitted a declaration that focuses exclusively on the Timber
Branch II proposal. (Rec. Doc. 41-11). The Ochsner Extension Road is mentioned twice
in passing. (Id. ¶¶ 5, 25). This declaration does not establish that O’Reilly has suffered
or will suffer an injury in fact from the Corps’ granting of the Ochsner permit. O’Reilly
has established, however, injury in fact and the other elements of standing as to the
Timber Branch II permit.
Healthy Gulf has the burden of showing that at least one of its members has
standing to challenge the permits. Healthy Gulf’s executive director has submitted a
declaration, but the only member identified out of the otherwise generic statements
made in the declaration is Ms. Hazel Piazza. (Rec. Doc. 41-9 ¶ 8). Ms. Piazza did not
submit a declaration of her own and like O’Reilly her injuries pertain to the Timber
Branch II permit. Thus, Healthy Gulf has failed to establish associational standing to
challenge the Ochsner permit. Healthy Gulf has established, however, injury in fact and
the other elements of standing as to the Timber Branch II permit through its member
Ms. Piazza.
Coalition for Responsible Zoning (“CFRZ”) has the burden of showing that at
least one of its members has standing to challenge the permits. The Court is persuaded
that the declaration of Dr. Ryan Green, a CFRZ member whose property is
approximately 30 yards from the proposed extension road, (Rec. Doc. 41-3 ¶ 8),
establishes the elements of standing necessary for CFRZ to challenge the Ochsner
permit. The declarations of Nancy Wagner (Rec. Doc. 41-7), Elise Read (Rec. Doc. 41-
6), William J. Spatz (Rec. Doc. 41-5), and Dr. Green establish CFRZ’s standing to
challenge the Timber Branch II permit.
Sierra Club (Delta Chapter) has the burden of showing that at least one of its
members has standing to challenge the permits. Sierra Club has submitted the
declaration of its chapter chair, Mr. David Stets. (Rec. Doc. 41-10). The member
identified in his declaration is Ms. Piazza, whose injuries pertain to the Timber Branch II
permit not to the Ochsner permit. Mr. Matthew Allen is a member of the Sierra Club’s
Delta Chapter but his declaration, which refers to concerns with his elderly parents’
property, does not demonstrate that he would have standing to challenge either permit.
Thus, Sierra Club has failed to establish associational standing to challenge the
Ochsner permit. Sierra Club has established, however, injury in fact and the other
elements of standing as to the Timber Branch II permit through its member Ms. Piazza.9
The Ochsner Permit
Plaintiffs contend that the Corps’ decision to issue the Ochsner permit was
arbitrary and capricious or otherwise not in accordance with the law because the Corps
violated various mandates of the CWA and NEPA when it issued the permit. Plaintiffs
accuse the Corps of simply checking off boxes in the document, reciting boilerplate
language, providing no real analysis or detail, and giving cursory or summary treatment
to significant issues that federal law required the Corps to consider.
Before proceeding to whether Plaintiffs have shown that the Corps’ issuance of
the Ochsner permit was arbitrary and capricious, two points must be stressed at the
outset. First, as mentioned above, during the public notice period when the Parish’s
application for the Ochsner permit was under consideration, Plaintiffs did not comment
upon or object to the requested permit even though representatives of the plaintiff
organizations did meet with the Corps to voice their concerns about the proposed road.
9 Plaintiffs did not break out the standing analysis by substantive claim and by permit, which is
what should have been done in this case. Plaintiffs have barely shown standing as to the
Ochsner permit and on appeal the Fifth Circuit may conclude that they have completely failed in
that showing. As the Court explains later in this opinion, Plaintiffs’ decision to join the two
separate permits in one lawsuit does not reduce their burden as to each permit, whether the
issue is standing or a decision on the merits. The Court notes that a central part of the “injury”
that Plaintiffs repeatedly refer to in their briefing, particularly where cumulative impacts are
concerned, is catastrophic flooding in homes and businesses, including what occurred in St.
Tammany in 2016. But the Court hesitates to conclude that Plaintiffs have shown a concrete or
actual or imminent threat of flooding in their own properties. It is not enough that many of the
residents in St. Tammany Parish oppose overdevelopment in the area because of concerns
about flooding.
In fact, Plaintiffs were very engaged and vocal in getting their concerns about the
connector road raised to the Parish’s elected officials and the Corps. The decision to
proceed with the road both by the Parish and the Corps was not made in ignorance of
any of the issues that Plaintiffs now raise. The Court has already explained that it does
not agree with the opponents’ suggestion that Plaintiffs’ failure to object during the
public notice period necessarily forecloses the relief that Plaintiffs now seek, (Rec. Doc.
84, Order and Reasons at 3 n.4), but because Plaintiffs did not submit anything during
the public notice period, the administrative record upon which the Court’s agency-
deferential review is based lacks support for many of the contentions that Plaintiffs have
raised. One specific example is the argument that the proposed extension road will be
ineffective for relieving local traffic congestion in the area or that the road would present
safety concerns for motorists. Further, because Plaintiffs did not formally present their
concerns and objections to the Corps so as to make them part of the administrative
record, the failure of the Corps to affirmatively address those concerns and objections in
the EA is not a basis to fault the Corps’ decision unless the failure to do so is otherwise
violative of federal law.
Second, the fact that Plaintiffs chose to challenge the Ochsner permit and the
Timber Branch II permit in the same complaint does not combine into one the two
separate administrative records upon which the Corps’ permitting decisions were based.
The Corps and the intervenors have stressed that this case involves two separate
permits—one obtained by a municipality and the other by a private party—that resulted
from separate applications, for completely separate projects. Plaintiffs’ own declarants
cast doubt on the suggestion that the proposed Ochsner connector road would be of
use to residents of the proposed Timber Branch II development providing further
support for the distinctness of the two projects.10 (Rec. Doc. 49-10 Spatz declaration ¶
7; Rec. Doc. 49-11 Read declaration ¶ 29). Yet Plaintiffs’ approach in their briefing
tends to obfuscate the distinctness of the permits. Notwithstanding Plaintiffs’ valid
concern regarding the cumulative impacts analysis for each permit in reference to the
other—the projects do share geographical and temporal similarities because they are
located only one mile apart and the permits were approved within days of each other—it
remains that the validity of each permit must be judged on the administrative record
supporting it. The more sparse Ochsner administrative record cannot be bolstered by
the litigation decision to join the challenge to the Ochsner permit with the challenge to
the Timber Branch II permit.
Turning now to the merits of Plaintiffs’ challenge to the Ochsner permit, the
Corps issued a FONSI and determined that a full EIS was not required for the Ochsner
permit. The MOR is the Corps’ decision document issued in support of the Ochsner
permit. (AR0014-AR0035). “Having reviewed the information provided by the applicant
and all interested parties and an assessment of the environmental impacts, [the Corps
finds] that this permit action will not have a significant impact on the quality of the
human environment.” (AR0034).
The Corps made a factual finding that the anticipated environmental
consequences and impacts attributed by “this project” would not be significant.
10 Of course, All State has vehemently opposed Plaintiffs’ efforts to enjoin the Parish’s permit for
the Ochsner Blvd. Extension Road. All State explains that it has a vested interest in the
Extension Road project because it will benefit the areas surrounding the project. (Rec. Doc. 60,
All State TRO opposition at 3). The Parish has not filed a cross motion for summary judgment
as to the Ochsner permit, but All State has included such relief as part of its cross motion for
summary judgment.
(AR0029). But both NEPA and the CWA require consideration of cumulative impacts,
and this is where Plaintiffs focus their challenge to the Ochsner permit. Plaintiffs claim
that the failure to properly consider cumulative impacts as required by NEPA rendered
the FONSI determination arbitrary and capricious, and then beyond that it violated the
CWA.11 The cumulative impacts requirements for NEPA and the CWA are substantively
similar.
Plaintiffs contend that the Corps’ cumulative impacts determination for the
Ochsner permit lacks any analysis of the cumulative impacts of the extension road in
relation to the Timber Branch II development, and the dozens of other § 404 permits
that the Corps has issued in conjunction with other wetland fill projects in the same
area.12 The primary cumulative impact that concerns Plaintiffs is how the risk of flooding
would be increased from the wetlands authorized to be destroyed in conjunction with
the road and with the other projects already permitted in the area. Essentially, Plaintiffs’
are contending that insofar as cumulative impacts are concerned, the Corps “entirely
failed to consider an important aspect of the problem.” Fath, 924 F.3d at 136 (quoting
Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43).
11 One of the intensity factors contained in NEPA’s CEQ regulations is “[w]hether the action is
related to other actions with individually insignificant but cumulatively significant impacts.” 40
C.F.R. § 1508.27(b)(7). Of course another of those intensity factors is the “unique
characteristics of the geographic area,” such as proximity to wetlands, id. § 1508.27(b)(3). But
as the Corps points out the presence of wetlands alone cannot foreclose a FONSI because
otherwise an EIS would be required every time someone applied for a § 404 permit affecting
wetlands, which as a matter of law is not the case.
12 Plaintiffs clarify that while they argue that the Corps should have considered the impacts of
the Ochsner permit and the Timber Branch II permit as part of the cumulative impacts analysis
of the other project, their contention is not that the Corps piecemealed the two applications by
not considering them together. (Rec. Doc. 41-14 at 15 n.9).
Plaintiffs also point out that the area where the extension road will be built is
largely undeveloped right now. But once the road is built there will be an incentive to
develop further. So additional development in the area should be considered a
reasonably foreseeable future impact when considering cumulative impacts.
The Corps acknowledged that “[cumulatively, similar projects as well as new
development off of the new roadway could have a long-term impact on the aquatic
ecosystem.” (AR0024). But Plaintiffs accuse the Corps of providing no analysis of this
long-term impact or apparently failing to take into account the numerous other 404 fill
projects that have been permitted and allowed to destroy hundreds of acres of wetlands
in the vicinity. The Corps did not expressly list those other permits in the MOR. As
Plaintiffs point out the Corps has in its records all projects it has permitted within three
miles of the site and certainly all permits issued for this same watershed. (Rec. Doc. 30,
Answer ¶ 124).
The Corps was required to consider the cumulative impacts of the Ochsner
extension road under NEPA, the CWA, and implementing regulations. The Corps
determined that the geographic scope for the cumulative effects assessment is the
Liberty Bayou-Tchefuncte area, which is not disputed. (AR0029). The Corps determined
that the direct effects of the proposed project “would be but not limited to” habitat loss,
water and air quality, noise, and energy consumption. (AR0029). Indirect effects of the
proposed project “would be but not limited to” traffic, noise, and continued impacts to
the ecosystem within the region. (Id. § 9.1). But the Corps determined that the
environmental impacts attributable to the project would not be significant. (Id. § 9.5).
Section 9.7 of the MOR contains the Corps’ conclusions regarding cumulative impacts.
That section reads:
When considering the overall impacts that will result from the proposed
activity, in relation to the overall impacts from past, present, and reasonably
foreseeable future activities, the incremental contribution of the proposed
activity to cumulative impacts in the [Liberty Bayou-Tchefuncte area], are
not considered to be significant. Compensatory mitigation will be required
to help offset the impacts to eliminate or minimize the proposed activity’s
incremental contribution to cumulative effects within the [Liberty Bayou-
Tchefuncte area]. Mitigation required for the proposed activity is discussed
in Section 8.0.
(AR0029-AR0030).
Plaintiffs correctly point out that the MOR does not discuss any of the past § 404
permits issued for the Liberty Bayou-Tchefuncte area and it does not mention the
Timber Branch II permit. The Court has previously observed that Plaintiffs’ criticisms of
the cumulative impacts section of the MOR are not exaggerated. (Rec. Doc. 84, Order
and Reasons at 12). Of course, the Corps correctly points out that lack of detail does
not necessarily render any of the determinations contained in the MOR to be arbitrary
and capricious. The Court remains persuaded (as it explained when denying preliminary
relief) that the administrative record does not demonstrate that the Corps failed to
consider the collective impacts of other § 404 permits in the area, including the Timber
Branch II permit, when it issued the Ochsner permit. Even though Plaintiffs did not
comment during the public notice period, representatives of the plaintiffs’ interests met
with personnel from the Corps to explain the potential problems with the extension road.
Plaintiffs’ concerns are legitimate but this is not a case where the Corps has issued a
decision counter to the evidence in the record, and it is not a case where there was only
one permissible decision to be made.
Further, the Court is persuaded that the possibility that the extension road might
prove an attractive lure to further development at some point in the future, while
plausible (the Corps did acknowledge this possibility), is too speculative to constitute a
reasonably foreseeable impact and issuing the permit for the connector road.
The Corps did not reach the decision urged by Plaintiffs but the Court is not
persuaded that the concise nature of the MOR renders the Corps’ FONSI determination
or the permitting decision arbitrary and capricious for failure to consider what the CWA
and NEPA required as to cumulative impacts. The fact that the MOR does not expressly
list the past § 404 permits issued for the Liberty Bayou-Tchefuncte area or the Timber
Branch II permit does not ipso facto mean that the Corps did not consider the
cumulative impacts of those permitting decisions when issuing the FONSI and then
ultimately the permit itself.
Next, Plaintiffs argue that the Corps violated the CWA’s 404(b)(1) guidelines
because the MOR does not explain how the mitigation measures employed—the
purchase of mitigation bank credits—compensates for the environmental impacts of the
project. Plaintiffs complain that the Corps failed to articulate how the mitigation
measures are related to the FONSI, which may implicate NEPA if the mitigation was
relied upon to reduce the project’s significance level before the threshold required for a
full-blown EIS.
The Corps determined that compensatory mitigation would be required to offset
environmental losses resulting from proposed unavoidable impacts to waters of the
United States. (AR0027). Because the proposed project would directly impact
approximately 16 acres of pine flatwood/savanna, the Parish purchased 40.6 acres of
pine flatwood/savanna. (AR0028). The LRAM method was used to determine the
mitigation amount.13 (Id. § 8.4). The Corps made a factual determination that
compensatory mitigation for the Ochsner proposal would help alleviate the loss of
wetland habitat functions realized by the construction activities. (AR0024). The Corps
also indicated that the impact was in the service area of an approved mitigation bank.
(AR0027).
The Corps did not rely on mitigation to arrive at the FONSI when it issued the
Ochsner permit so the Ochsner permit was not issued based on a mitigated FONSI. In
Atchafalaya Basinkeeper, the Fifth Circuit stressed the difference between a FONSI
with accompanying compensatory mitigation and a mitigated FONSI. 894 F.3d at 698.
In this case the Corps’ failure to relate the mitigation measures to the FONSI was not
arbitrary and capricious because the FONSI was not based on mitigation.
As Plaintiffs point out the MOR does not contain a narrative explanation as to
how the mitigation bank credits would compensate for any cumulative impacts, such as
the loss of the flood-absorbing capacity of the wetlands being destroyed by the project.
But the Corps had already concluded that the unmitigated impacts anticipated from the
Ochsner project would not be significant. (AR0029). This factual finding is not arbitrary
and capricious based on the administrative record, which contains no evidence as to
how the wetlands directly impacted by the project contribute to flood control in the
watershed. The Corps’ conclusion that the purchase of 40.6 acres of pine
13 The Fifth Circuit gave in depth consideration to the Louisiana Wetland Rapid Assessment
Method, or LRAM, in its Atchafalaya Basinkeeper v. United States Army Corps of Engineers
decision, 894 F.3d 692, 699-700 (5th Cir. 2018). The LRAM is a type of “functional assessment”
tool that the CWA regulation advises “should be used” to “determine how much compensatory
mitigation is required.” Id. at 700 (quoting 33 C.F.R. § 332.3(f)(1)).
flatwood/savanna would be sufficient compensatory mitigation for the loss of the
wetlands necessary to complete the extension road is not arbitrary and capricious.
Next, Plaintiffs argue that the Corps violated NEPA and the CWA because the
Corps did not conduct an alternatives analysis in accordance with the governing
regulations. In cases where the proposed project is not water dependent, the 404(b)(1)
guidelines mandate a presumption that practicable alternatives “that do not involve
special aquatic sites” are available “unless clearly demonstrated otherwise.” Id. §
230.10(a)(3). The Ochsner extension road is not water-dependent. (AR0015). Plaintiffs
complain that the Corps did not require the Parish to rebut the practicable alternatives
presumption even though the 404(b)(1) guidelines required it. Plaintiffs complain that
alternatives were addressed in a one-page letter from the Parish engineer to the Corps
(AR108), which gave no clear or reasoned explanation for why the road location was
the least environmentally damaging alternative.
The Corps discussed the no action alternative, and two off-site alternatives were
submitted. (AR0018). The two off-site alternatives were not practicable due to significant
right-of-way problems, construction costs, and major traffic disruptions during
construction. (Id.). The no action alternative was rejected because even though there
would be no adverse environmental consequences in doing nothing, the local traffic
conditions (and safety) would not be improved and the other potential benefits
associated with the project would be lost. (Id.).
The Parish submitted to the Corps on-site alternatives with eight different
alignments. (Id.). The Corps was satisfied that the alignment preferred by the Parish
provided the shortest route/length between Ochsner Boulevard and LA Highway 1077
and required less acreage and wetlands to be impacted. (AR0019). The chosen site
addressed the Parish’s needs while minimizing and avoiding adverse impacts to
wetlands. (Id.). The Corps was persuaded that the project was designed to the minimum
width necessary to meet the desired goal. (AR0014). All work shall be conducted within
the right of way and hauled in fill shall come from a clean site chosen by the contractor.
(AR0014).
The MOR provides sufficient explanation as to why certain alternatives were not
chosen and why the Parish’s preferred alternative was actually the most
environmentally friendly. That the MOR does not include an express analysis of the
non-water dependent presumption imposed by the 404(b)(1) guidelines does not render
the Corps’ decision arbitrary or capricious. The record establishes that the Corps was
aware of the presumption and the record contains evidence sufficient to rebut it. Town
of Abita Springs, 153 F. Supp. 3d at 921. Further, the Court finds nothing problematic in
the fact that the Corps did not require the Parish to submit the Lambert Consultants
study underlying the letter that the Lambert consultant submitted in support of the
project, (AR0109), or that the Parish did not submit a traffic study in support of the
connector road. The Corps, whose business is to evaluate/issue dredge and fill permits
consistent with the CWA not to design effective traffic control measures, was entitled to
rely on the Parish’s plausible conclusion (supported by its consultant) that the proposed
road would be effective in alleviating traffic problems in the area. The administrative
record does not contradict this conclusion.
In sum, Plaintiffs have not demonstrated that the Corps’ decision to issue the
Ochsner permit MVN-2017-00075-EPP was arbitrary and capricious. Plaintiffs’ motion
for summary judgment is therefore granted as to the issue of CFRZ’s standing to
challenge the Ochsner permit and denied in all other respects as to the Ochsner permit.
The Corps’ and All State’s cross motions for summary judgment are granted as to the
Ochsner permit.
The Timber Branch II Permit
As with the Ochsner permit, Plaintiffs contend that the Corps’ decision to issue
the Timber Branch II permit was arbitrary and capricious or otherwise not in accordance
with the law because the Corps violated various mandates of the CWA and NEPA when
it issued the permit.
Before proceeding to whether Plaintiffs have shown that the Corps’ issuance of
the Timber Branch II permit was arbitrary and capricious, the Court first considers the
role of the Fifth Circuit’s 2007 decision in O’Reilly, supra. O’Reilly was an appeal of this
Court’s ruling enjoining the § 404 permit issued by the Corps in 2003 for Phase I of a
project called Timber Branch involving the same tract of land at issue herein. No. 04-
940, 2004 WL 1794531. That permit was issued to the prior owner of the land—not to
All State—and it was based on a different development/design plan for Timber Branch
II.
This Court had determined that the Corps’ FONSI was arbitrary and capricious
and that the Corps must prepare a full-blown EIS. Id. at *6. On appeal, the Fifth Circuit
agreed that the FONSI violated NEPA, but the panel was not persuaded that the permit
should be enjoined until the Corps prepared an EIS. O’Reilly, 477 F.3d at 234. Rather,
the appropriate remedy was to allow the Corps to correct the deficiencies in its EA
which could potentially cure the problems identified with the FONSI. Id. The Fifth Circuit
did not vacate the injunction against the 2003 permit but rather amended it “enjoin[ing]
the Corps from issuing a § 404 permit herein until further orders of the district court
consistent with this opinion,” and remand[ing] the case to the Corps for further
proceedings including the preparation of a new EA, a new FONSI, or an EIS or other
appropriate disposition, consistent with this opinion.” Id. at 240-41 (emphasis added).
It was over fifteen years ago when the court of appeals issued its opinion which
left in place the amended injunction and remanded the case to the Corps. Presumably,
the former owner of the tract abandoned the plans for the Timber Branch I project
because it appears that no further action was taken to correct the problems with the
2003 Timber Branch permit. At some point in time All State purchased the land and then
initiated the permit process anew in 2018. There is nothing in the administrative record
to suggest that All State or the Corps relied in any manner on the prior owner’s
application and permit. There has been no suggestion of collusion with the former
owner in order to circumvent the court of appeals’ amended injunction.
The Corps and All State stress that the instant case involves a different applicant,
a different project, a different decision document, and a different Corps permit than the
404 permit issued in 2003. (Rec. Doc. 91-1 at 11 n.3). All State argues that it cannot be
bound by anything in the prior litigation because it did not own the property at the time
and was not the permittee when the injunction was issued.
While Plaintiffs suggest that the prior O’Reilly case forms a “part of the history of
proceedings in this matter,” (Rec. Doc. 41-14 at 3 n.2), they do not argue that the
Timber Branch II permit currently at issue is void for having been issued in defiance of
an extant injunction. But what Plaintiffs point out is that the concerns with Timber
Branch I that were raised in 2003 are worse today due to the rapid and seemingly
unchecked permitting and development taking place in the area in recent years, making
the Corps’ decision to issue the Timber Branch II permit all the more egregious.
The Court is persuaded that the Corps’ issuance of the current Timber Branch II
permit did not violate the injunction left in place by the Fifth Circuit’s 2007 decision.
Thus, while the prior O’Reilly decision perhaps should not be ignored completely
because it did involve the same tract of land and a development similar in design,14 it
does not provide legally preclusive effect in this case.15 Nor does the administrative
record upon which that permit was based (amassed from 1999 when the former owner
began the application process to 2003 when the permit was issued) or the 2003
decision document form a part of the administrative record currently before the Court.
Turning then to the merits of Plaintiffs’ challenge to the Timber Branch II permit,
the Corps issued a FONSI and determined that a full EIS was not required for the
Timber Branch II permit. The MOR is the Corps’ decision document issued in support of
the permit. (TB-AR0021). “Having reviewed the information provided by the applicant
14 All State points out that the prior application was for 81.58 acres with 39.54 acres of wetlands
affected whereas All State’s Timber Branch II impacts less wetlands and is smaller in scope.
Also, the administrative record contains all new site analysis, hydraulic studies, and alternative
site analysis.
15 Besides the legitimate differences between the facts underlying the 2003 permit and the one
at issue here, the Court does not interpret the Fifth Circuit’s 2007 injunction as intending to
restrain use of the land itself in perpetuity. The problem with the 2003 permit was the
deficiencies in the decision document supporting it. Again, All State applied for the Timber
Branch II permit anew relying on nothing from the former owner’s application and the Corps
prepared a new decision document. The Court does not interpret the Fifth Circuit’s injunction to
preclude consideration of a new § 404 permit under those circumstances.
The Corps and All State also stress that unlike the instant case, O’Reilly dealt with a
mitigated FONSI which the Fifth Circuit in more recent jurisprudence has relied upon when
distinguishing O’Reilly. See, e.g., Atchafalaya Basinkeeper, 894 F.3d at 698-99.
and all interested parties and an assessment of the environmental impacts, [the Corps
finds] that this permit action will not have a significant impact on the quality of the
human environment.” (TB-AR0043). Therefore, the Corps concluded that an EIS would
not be required. Id.
The Corps identified direct effects of the proposed project as (but not limited to)
habitat loss, water and air quality, noise and energy consumption. Indirect effects of the
proposed project would be (but not limited to) increased traffic, noise, and continued
impact to the ecosystem within the region. (TB-AR0038). The Corps made a factual
finding that the anticipated environmental consequences and impacts attributed by “this
project” would not be significant. (TB-AR0038). The Corps considered the public interest
review factors when deciding to issue the permit and concluded that the majority of
them were beneficial. (TB-AR0034-0035).
As explained above, NEPA’s regulations required the Corps to consider both
context and intensity in determining whether a project’s effects are significant enough to
require a full EIS. See 40 C.F.R. § 1508.27. But the ten intensity factors listed in the
CEQ regulation are not categorical rules; rather, they guide the agency’s determination.
Spiller v. White, 352 F.3d 235, 243 (5th Cir. 2003). An agency’s decision document is
not deficient simply because the agency does not separately and directly address each
of the factors. Id. And a FONSI is not arbitrary and capricious simply because it
implicates one or more of the intensity factors. See id.
The intensity factors implicated herein are the unique characteristics factor of §
1508.27(b)(3) because wetlands are involved, the cumulative impacts factor of §
1508.27(b)(7), the latter of which Plaintiffs focus upon, and arguably the precedent
factor of § 1508.27(b)(6), in light of Plaintiffs’ concerns about future phases of the
Timber Branch development. Plaintiffs argue that the Corps failed to properly consider
cumulative impacts as required by NEPA rendering the FONSI determination arbitrary
and capricious, and then beyond that the Corps violated the CWA because that body of
law also requires consideration of cumulative impacts. As with the Ochsner permit,
Plaintiffs’ argument is that the Corps failed to consider the cumulative impacts of the
Timber Branch II permit both in relation to the Ochsner permit and to the numerous
other 404 permits issued in the Liberty Bayou-Tchefuncte area in recent years. The
specific adverse cumulative impact that Plaintiffs stress is the potential for flooding in
the area given that wetlands generally serve a valuable flood-absorbing function.
In the MOR the Corps acknowledged that “[c]umulatively, similar projects could
have a long-term impact on the aquatic ecosystem.” (TB-AR0032). But in its
conclusions regarding cumulative impacts, the Corps stated that “the incremental
contribution of the proposed activity to cumulative impacts in the area . . . are not
considered to be significant.” (TB-AR0038). The Corps determined that flood hazards
associated with the project would be “negligible.” (TB-AR0034). The Corps determined
that “[w]ater circulation will be altered at the project site due to the redirection of flow via
subsurface drainage towards the dry retention pond.” (TB-AR0032).
As with the Ochsner permit’s MOR, the Court is not persuaded that the Corps
simply failed to consider the cumulative impacts of the Timber Branch II permit when
concluding that the impacts would not trigger the need for an EIS under NEPA’s
regulations. The administrative record that accompanies the Timber Branch II permit is
robust and evinces significant involvement of Plaintiffs and other concerned citizens
during the thirty-three months that the permit application was pending. But in concluding
that the flooding impact of Timber Branch II itself would be negligible, the Corps
implicitly resolved against Plaintiffs the factual questions pertaining to Timber Branch
II’s flood zone designation, its potential to contribute to flooding in the area, and the
anticipated efficacy of the dry retention pond.
The Timber Branch II project appears to be located in FEMA flood zone X. (TB-
AR AR0123). To help allay flooding concerns raised during the public notice period, All
State modified its project design to include a dry retention pond to increase storm water
retention. Modeling concluded that the proposed drainage modifications and the dry
retention pond, with 91.1 acre-feet of storage, would decrease predevelopment peak
discharge of floodwater runoff by over 25 percent. (TB-AR0181-184). The hydrologic
analysis performed for the Timber Branch II project shows that it complies with the
Parish’s ordinances requiring 25% or more reduction in pre-development runoff. (TB-
AR0099, 178-249).
In reaching its significance findings, the Corps credited the McHugh hydrologic
analysis submitted by All State in support of the project, (TB-AR0176), which suggests
that Timber Branch II’s design will actually decrease floodwater runoff. (TB-AR0181-
184). The Corps chose not to rely upon the study submitted by Dr. Koob, which
supports Plaintiffs’ contentions regarding flooding in the area. (TB-AR0367).
Based on the administrative record, the Corps’ significance conclusions,
including with respect to the potential for flooding impacts attributable to Timber Branch
II, are not arbitrary and capricious. But Plaintiffs argue that the FONSI was arbitrary and
capricious because the Corps did not consider the cumulative flooding impacts
attributable to Timber Branch II. In support of this contention Plaintiffs point out that the
MOR does not discuss any of the other projects (including the Ochsner extension road)
that the Corps has permitted in the area (even though it has those records in its
archives), it does not reference the reasonably foreseeable future development of the
rest of the 200-acre tract of land surrounding the proposed Timber Branch II site, and it
fails to even mention St. Tammany’s catastrophic flooding event of 2016.
Of course, as the Corps points out, NEPA does not prescribe any specific
method of analyzing cumulative impacts. And mindful that consideration of cumulative
impacts under NEPA’s CEQ’s regulations constitutes just one of the ten non-categorial
factors to guide the agency’s permitting decision, the Court is not persuaded that the
Corps’ FONSI for Timber Branch II was arbitrary and capricious for failure to consider
cumulative flooding impacts in the region. The concerns regarding flooding in the area
due to overdevelopment were discussed at length in Dr. Koob’s study which is part of
the administrative record. (TB-AR0367). Even if the Corps had made a factual
determination that the destruction of wetlands in the Liberty Bayou-Tchefuncte area is
contributing to destructive flooding property in the area, and assuming that this is
factually correct, the Corps’ FONSI would not ipso facto have been arbitrary and
capricious.
Plaintiffs argue that the Corps’ FONSI was also arbitrary and capricious because
the Corps did not consider the reasonably foreseeable impacts associated with future
phases of the Timber Branch II development, which recent events have demonstrated
are in the works. Given those recent events such as the land-owner seeking zoning
variances, and showing expansion plans to neighbors, the expansion of Timber Branch
II at some point in the future is more than speculative. But the events that Plaintiffs point
to occurred many months after the Corps’ permitting decision and therefore do not
render the Corps’ failure to address future aspects of Timber Branch II arbitrary and
capricious.
The administrative record supports the Corps’ contention that it considered
potential impacts on the floodplains but ultimately concluded there was no significant
impact. Plaintiffs have not demonstrated that the FONSI was arbitrary and capricious for
failure to properly consider cumulative impacts. The Corps’ decision that no EIS was
required did not violate NEPA at least insofar as cumulative impacts are concerned.16
Plaintiffs argue that another basis for concluding that the FONSI was arbitrary
and capricious is that the Corps failed to articulate how the mitigation measures
required for the Timber Branch II permit are related to the FONSI. Plaintiffs complain
that the EA does not expressly foreclose that the Corps relied on mitigation measures to
reduce the impact levels below the significance threshold requiring a full-flown EIS.
Further, the Corps failed to explain how the mitigation credits compensate for the
localized environmental impacts of the Timber Branch II development, including the loss
of flood-absorbing capacity.
The MOR describes the types of avoidance and mitigation measures required by
Corps’ regulations, the type of compensatory mitigation required, and the amount of
acreage as calculated using the LRAM. (TB-AR0036-37; TB-AR0060-64). The Corps
16 The Court recognizes that the CWA also requires consideration of cumulative impacts but the
Court is not persuaded that the specific cumulative impacts concerns raised by Plaintiffs actually
implicate the CWA’s zone of interests pertaining to the discharge of dredge or fill materials into
navigable waters.
required All State to purchase 58.4 acres of pine flatwood/savanna wetland from
mitigation banks for Timber Branch II. (TB-AR0056). The Corps determined the
“compensatory mitigation should minimize any negative impacts to wetland resources.”
(TB-AR0030).
There is no suggestion from either the MOR or the administrative record that the
mandatory mitigation measures are related to the FONSI, in other words, that the Corps
relied on the mitigation measures to reduce the potential impacts of Timber Branch II
below the significance level that would have triggered an EIS. The Corps did not
reference mitigation in the FONSI, (TB-AR0043), and the mitigation is expressly
referred to as compensatory in nature, (TB-AR0021). The Corps concluded that the
potential impacts from the permit would not meet the “significance” threshold under
NEPA that would require an EIS regardless of mitigation. The FONSI was not arbitrary
and capricious for failing to relate the required mitigation measures to the FONSI.
Plaintiffs argue that the Corps violated NEPA and the CWA because it did not
consider whether the Timber Branch II project as sited in the permit is the least
damaging alternative. It is undisputed that the Timber Branch II project is not “water
dependent” therefore the guidelines impose a presumption that practicable alternatives
to wetlands exist. Plaintiffs complain that the Corps did not hold All State to its burden of
rebutting the presumption but merely accepted All State’s alternative sites analysis
without subjecting it to an independent analysis. Further, Plaintiffs complain that the
Corps gave too much consideration to the applicant’s profit and economic
considerations when approving the Timber Branch II alternative selected by All State.17
In support of the permit application All State submitted a detailed site analysis for
alternatives. (TB-AR0104-0166). The alternative site analysis performed by Blossman
Appraisal Service outlines in detail the requirements of the Timber Branch II project and
the practicable alternatives in light of the project’s goals. The Corps therefore
considered seven (7) offsite alternatives and two (2) onsite alternatives. (TB-AR0026-
0028). The Corps ultimately determined that All State’s preferred alternative impacted
the least amount of wetlands while still maintaining the overall project goals. (TB-
AR0027).
The criteria and/or scope of the proposed Timber Branch II project which
included availability, location, proximity, zoning, highway access, and size, affected
practicability of alternatives. (TB-AR0026). Some of the alternatives did not have the
requisite acreage to support the development, did not have the necessary zoning, were
located in an AE flood plain, and/or impacted a larger portion of jurisdictional wetlands,
rendering them not practicable. (TB-AR0026-0027). Timber Branch II requires certain
zoning requirements in order to support the development, including zoning for
commercial and residential properties.(TB-AR0124). Four of the alternatives could not
meet the necessary zoning requirements, and other alternatives could not meet the size
requirements or impacted more wetlands than the proposed site. Further, other issues
affected the practicability of the other alternatives such as flood zones, soil content,
17 Neither NEPA nor the CWA prohibit the Corps from considering the economics of alternatives
being considered. The Corps did consider All State’s profitability but it did not give undue weight
to that consideration.
availability of central water, sewage, and utilities, parcel size and pre-existing property
claims (TB-AR026-27; TB-AR0104-166).
Two possible on-site alternatives were considered. First, the chosen site plan
which would impact 24.82 acres of wetlands and avoid .24 acres by redesign of part of
the project. (TB-AR0027). The second on-site alternative was the original Timber
Branch II design which was larger in scope and would have impacted a total of 24.66
acres of wetlands. Thus, All State’s preferred alternative impacted slightly less wetlands
of the other on-site alternative. (TB-AR0027).
The Corps considered one no-action alternative. (TB-AR0026-27). As expected
the Corps determined that the no action alternative would avoid all adverse
environmental impacts associated with the development and have the least impact on
wetlands. (Id.). But the no action alternative would not meet the needs of the applicant
and the potential benefits of Timber Branch II, e.g., “additional commercial and
residential opportunities, economic benefits in the form of wages, materials purchased,
property taxes, and jobs,” would not be realized. (TB-AR0026-27).
Insofar as NEPA is concerned, which does not militate in favor of
environmentally-friendly alternatives, the Corps was not arbitrary and capricious in its
consideration of practicable alternatives.
Insofar as the CWA is concerned, the Corps evaluated whether the alternatives
were practicable as that term is defined in 40 C.F.R. § 230.10(a)(2), and determined
that each alternative was not practicable. The Corps determined that development of
any of these alternatives would cause more adverse impacts to wetlands than
development of the subject property. (TB-AR0026-28). The Corps complied with the
404(b)(1) guidelines and 40 C.F.R. § 230.10(a) by reviewing, analyzing, and then
concluding that the “no-action alternative” and the several other alternatives (both off-
site and on-site) were “not practicable.”
Further, the record does not demonstrate that the Corps failed to consider and
that All State failed to rebut the presumption applied in cases where the proposed
project is not water dependent. The CWA is not violated simply because the
presumption was not expressly mentioned in the MOR, see Town of Abita Springs, 153
F. Supp. 3d at 921, and the administrative record contains sufficient evidence to rebut
the presumption as to no practicable alternatives not involving wetlands. Plaintiffs
cannot prevail on their CWA arguments regarding the Timber Branch II project
alternatives and the applicable presumptions under § 230.10(a).
Finally, the Court is not persuaded that either NEPA or the CWA was violated
because the Corps did not commission its own alternatives studies but rather relied
upon the Blossman report submitted by All State. The Corps is surely aware that
applicants are not likely to submit reports that fail to support their preferred alternative.
The Corps’ decision to credit the Blossman report does not lead to an inescapable
conclusion that the Corps simply “rubberstamped” All State’s contentions. The Court
agrees that it is of no consequence that the Corps did not engage its own experts to
prepare an alternative site analysis report.
In sum, Plaintiffs have not demonstrated that the Corps’ decision to issue the
Timber Branch II permit MVN-2018-0215-EPP was arbitrary and capricious. Plaintiffs’
motion for summary judgment is therefore granted as to the issue of standing to
challenge the Timber Branch II permit and denied in all other respects as to the Timber
Branch II permit. The Corps’ and All State’s cross motions for summary judgment are
granted as to the Timber Branch II permit.
Accordingly;
IT IS ORDERED that the Motion for Summary Judgment (Rec. Doc. 41) filed
by the plaintiffs, Loretto O’Reilly, Healthy Gulf, Coalition for Responsible Zoning, and
the Sierra Club and its Delta Chapter is GRANTED IN PART AND DENIED IN PART as
explained above.
IT IS FURTHER ORDERED that the Cross Motion for Summary Judgment
(Rec. Doc. 89) filed by All State Financial Co. and the Cross Motion for Summary
Judgment (Rec. Doc. 91) filed by the United States Army Corps of Engineers and Lt.
General Scott A. Spellmon are GRANTED as explained above.
August 15, 2022
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