Spellmon

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

ATCHAFALAYA BASINKEEPER, INC., CIVIL ACTION

ET AL.

VERSUS

SCOTT A. SPELLMON, ET AL. NO. 23-01697-BAJ-RLB

RULING AND ORDER

This case concerns an after-the-fact permit (a permit that is granted after

construction has begun) issued by the U.S. Army Corps of Engineers and its officials

(“Defendants” or “Corps”) for a structure (the “Miller Structure”) in Pat’s Throat

Bayou. Plaintiffs Atchafalaya Basinkeeper and Louisiana Crawfish Producers

Association-West are nonprofit organizations alleging that the Corps violated the

Clean Water Act (“CWA”) and the Rivers and Harbors Act (“RHA”) and acted

arbitrarily, capriciously, and in excess of statutory authority when it issued the

permit after-the-fact as a Nationwide Permit (“NWP”) 14.

Now before the Court are Plaintiffs’ Motion For Summary Judgment

(Doc. 30) and the Federal Government Defendants’ Cross Motion For Summary

Judgment (Doc. 33). The parties submitted supplemental briefing. (Docs. 35, 36).

Plaintiffs seek relief in the form of a Court Order:

(1) Declaring the Corps’ authorization of the Miller Structure to be illegal;

(2) Vacating/setting aside the Corps’ NWP authorization #MVN-2021-01131-

CF for the Miller Structure;

(8) Enjoining the application of NWP 14 or any other Army Corps Nationwide

Permit to the structure;

(4) Declaring that the Corps’ regulations allowing it to issue nationwide

permits under the RHA exceeds the Corps’ statutory authority, and

vacating that regulation;

(5) Declaring that use of NWP 14 for after-the-fact authorizations is illegal

under the RHA, and enjoining such uses in the Atchafalaya Basin.

The Court has carefully considered the Administrative Record, the arguments

of all parties, and the applicable law and jurisprudence in this matter. For the

following reasons, Plaintiffs’ and Defendants’ Motions will both be GRANTED IN

PART and DENIED IN PART.

I. FACTUAL BACKGROUND

Pat’s Throat Bayou is located within the Atchafalaya Basin. (AR 10-12).

Pat’s Throat has long been used for access to fishing grounds (AR 87; AR 93), and it

sustains the area’s crawfish populations. (See AR 87-88, AR 93). Pat’s Throat Bayou

is also a historically navigable waterway falling under the Corps’ jurisdiction.

(See AR 90).

In September 2021, the Miller Hunting Club built a structure! (the

“Miller Structure”) across Pat’s Throat to access additional hunting areas without

first obtaining a permit from the Corps. (AR 84; AR 98; AR 90). The Miller Structure

is approximately 32 feet long, 17 feet wide, and 6 feet tall, and has a few culverts so

1 Plaintiffs refer to the structure as a “dam.”

that flowing water can pass through it (AR 1; AR 18; AR 84; AR 75-78, AR 56-57).

The Miller Structure spans across Pat’s Throat Bayou, so boats cannot pass it. (See

AR 75-78, AR 56-57, AR 138, Doc. 30-3 § 20 Doc. 30-7 § 12). Prior to the construction

of the Miller Structure, fishermen would regularly clear away branches and trees

that fell into Pat’s Throat if the debris blocked boat access. (Doc. 30-3 4 12).

In October 2021, Plaintiff Atchafalaya Basinkeeper sent the Corps a letter

notifying it of the “illegal dam ... across Pat’s Throat ... [which] completely stops all

navigation through the bayou.” (AR 93). The letter warned that the structure would

reduce the water flow speed and “forever alter the hydrology of the area if allowed to

remain into the high-water season.” (AR 98—94). Plaintiff also attached photographs

of the structure. (Id.).

Later that month, the Corps issued Benjamin Miller (“Miller”) of the Miller

Hunting Club a “Notice of Violation” for the “unauthorized work and fill material in

section 10 waters” that created the structure. (AR 90). The Corps noted that the

activity was a violation of both the RHA and the CWA. (/d.). Plaintiffs were not

informed whether the Corps pursued any follow-up enforcement action, so Plaintiffs

sent a Notice of Intent to File a Clean Water Act Suit Against Miller Hunting Club

to Benjamin Miller in November 2021, copying the Corps on this notice. (AR 86~—89).

The November 2021 Notice alleged that Miller discharged fill into jurisdictional

waters without a permit, in violation of the Clean Water Act. (AR 86-88). The notice

also noted that although fishermen had used Pat’s Throat for navigation for over a

century, “navigation [was] now completely impounded” because of the structure. (Id.).

Miller proceeded to submit an after-the-fact permit application to the Corps in

January 2022. (AR 83-85). The Corps also received several photographs that Miller

took of the Miller Structure. (AR 14-17).

The Miller Structure required at least two types of legal permission from the

Corps: (1) authorization under Section 404 of the Clean Water Act to discharge fill as

a pollutant into navigable waters (88 U.S.C. §§ 1811(a); 1844; 1362(7); and

(2) authorization under Section 10 of the Rivers and Harbors Act to obstruct

navigable waters (83 U.S.C. § 408).

The Corps asked Miller whether others used the Pat’s Throat for access, and

Miller said “Pat[’]s [T]hroat is cluttered with debris and fallen trees. So any boat

travels could not happen,” also sending a picture of debris and fallen trees in

Pat’s Throat (AR 51-55). This conflicted with Plaintiffs’ communications with the

Corps, which stated that fishermen were navigating through Pat’s Throat. (AR 87;

AR 93). Without conducting a site visit, in March 2022, the Corps granted the Miller

Structure an after-the-fact permit under NWP 14 (AR 7-8), along with a

Memorandum for Record (AR 1-6), that authorized the Miller Structure under

Section 10 of the RHA and Section 404(b) of the CWA.

A month after the Corps authorized the Miller Structure, Corps employees sent

emails to one another indicating that they did not know the bottom elevation of water

at the Miller Structure, nor did they have information about the navigability of

Pat’s Throat besides the photograph of the debris Miller sent. One email said:

During low-water, how deep is the water in Pat’s Throat at the culverts? And,

do we know what the bottom elevation (NGVD) is at the culvert location? □□□

curious to know at what gauge elevation does the water begin to backflow from

Whiskey Pilot Channel into Pat’s Throat and compare the elevations. This

should shed some light on navigability, if Pat’s Throat is not littered with

obstructions (i.e., falling trees, logs, etc.). Also, go ahead and schedule a site

visit soon so we can confirm the presence of the water control structure (WCS)

and photographically document the navigability of Pat’s Throat from the WCS

to the culverts, basically is it passable by boat.

(Doc. 21-2 at 2 (emphasis added)). Another Corps employee responded to the email as

follows:

When its low I think the water is a foot or two feet max based on the ATF

drawings. Attached is a photo the Hunting Club provided me showing that

debris is in the canal. The photo was provided when the Atchafalaya River was

moving towards flood stage so it doesn’t quite represent the lowest water level.

The Hunting Club said that this debris is minor compared to larger debris

areas in the canal so currently I believe that the waterway is currently

impassable unless all of the debris would be removed. If all the debris would

be removed then it MAYBE would be navigable during high waters for a few

months a year. We don’t know the bottom elevation (NGVD) at the culvert

location.

(emphasis added) (/d. at 1).

The record does not reflect that the Corps visited the Miller Structure before

or after authorizing the Permit. Plaintiffs brought this instant lawsuit in

December 2028, alleging that the Miller Structure did not meet the General or

Regional Conditions required for it to obtain an after-the-fact NWP 14. Plaintiffs also

allege that the Corps’ regulations authorizing it to issue after-the-fact permits and

nationwide permits were unlawful.

II. LEGAL STANDARD

Section 10 of the Rivers and Harbors Act makes it is unlawful “to build or

commence the building” of structures and other work in the navigable waters of the

United States without first obtaining authorization from the Corps. 33 U.S.C. § 408.

Section 404(b) of the Clean Water Act prohibits the discharge of dredged or fill

material into waters of the United States [“SWOTUS”] without similarly obtaining

authorization from the Corps. 33 U.S.C. §§ 1311(a); 1344; 1362(7). Fill material is

defined as material “placed in [WOTUS] where the material has the effect of:

(i) [r]eplacing any portion of a [WOTUS] with dry land or (ii) [c]Jhanging the bottom

elevation of any portion of a [WOTUS].” 33 C.F.R. §§ 323.2(c), 323.2(e)(1). The Corps

issues authorizations for CWA Section 404(b) and RHA Section 10 permits under

NWP 14 in one consolidated document, as it did here. 86 Fed. Reg. 2744

(Jan. 13, 2021).

The Corps issues permits for Section 404(b) of the CWA and Section 10 of the

RHA as either individual permits or general permits.2 General permits are issued to

categories of projects that the Corps has determined cause only minimal adverse

environmental effects. 33 U.S.C. §§ 1344(e)(1), 322.2(f). The CWA expressly

empowers the Corps to adopt schemes to issue general permits, 33 U.S.C. § 1344,

while the RHA does not.

Alternatively, the Corps issues individual permits to specific projects after

reviewing the projects on an individual basis. 33 C.F.R. § 322.2(e). Individual permits

are required when a project does not fall into any of the categories of projects covered

by general permits. 33 C.F.R. § 322.8(a). If the Corps issues an individual permit, the

Corps must provide public notice and the opportunity for public hearings before

2 Nationwide permits, such as NWP 14, are general permits. 33 C.F.R. § 330.2(b).

issuing the permit. 33 U.S.C. § 1844(a). Additionally, the Corps may not issue an

individual permit for an activity if there are less environmentally damaging

practicable alternatives or where the activity contributes to significant degradation

of WOTUS. 40 C.F.R. §§ 230.10(a), 230.10(c).

The Permit issued here granting CWA Section 404 authorization and RHA

Section 10 authorization was NWP 14. NWP 14 requires that applicants seek

verification from the Corps that their project complies with the NWP before beginning

construction. 38 C.F.R. § 330.6(a). The Corps then reviews the project to ensure that

it complies with the terms and conditions of the NWP. 33 C.F.R. § 330.1(e)(2).

NWP 14 authorizes structures such as roads, highways, and railways that

cross WOTUS and which do not cause a loss of greater than half an acre of WOTUS.

86 Fed. Reg. 73522, 73538 (Dec. 27, 2021). In order to quality for NWP 14, the

applicant must meet all General and Regional Conditions applicable to the NWP.

General Conditions are imposed on all nationwide permits (86 Fed. Reg. 2744, 2758,

2867-75 (Jan. 18, 2021); 38 C.F.R. § 380.1(c)), and regional conditions are imposed

on a regional basis onto nationwide permits (33 C.F.R. § 330.5(c)(1)).

The Corps can issue an NWP to an activity “only if that activity and the

permittee satisfy all of the NWP’s terms and conditions.” 33 C.F.R. § 330.1(c). In other

words, a “prospective permittee must satisfy all terms and conditions of an NWP for

a valid authorization to occur.” Id. § 330.4(a).

The conditions applicable to NWP 14 at issue here are General Conditions 1,

2, 5, and 9, and Regional Condition 7. (AR 18-46). Plaintiffs contend that the Corps’

authorization of the Miller Structure under NWP 14 was arbitrary and capricious

because the structure did not meet these conditions.

General Condition 1 provides that the activity may not cause “more than a

minimal adverse effect on navigation.” (AR 19). General Condition 2 provides that

the activity may not “substantially disrupt the necessary life cycle movements” of

aquatic life indigenous to the waterbody and that all crossings shall be “suitably

culverted, bridged, or otherwise designed and constructed to maintain low flows to

sustain the movement of those aquatic species.” (AR 19-20). General Condition 5

provides that an activity may not occur “in areas of concentrated shellfish

populations[.]” (AR 20). General Condition 9 provides that “[t]he activity must be

constructed to withstand expected high flows” and the activity may not “impede the

passage of normal or high flows.” Jd. Regional Condition 7 provides that culverts

“must be sufficiently sized to maintain expected high-water flows and be installed at

a sufficient depth to maintain low flows to sustain the movement of aquatic species.”

(AR 37).

If an applicant constructs a project without obtaining required Corps

authorization, the RHA authorizes the Corps to respond through legal action.

33 U.S.C. § 406. Under the Corps’ regulations, the Corps can also respond by

requiring initial corrective measures (83 C.F.R. § 326.3(d)), voluntary restoration

(33 C.F.R. § 326.3(e)(1)G)), or the submission of an after-the-fact permit application

(33 C.F.R. § 326.3(e)), which is how the Corps responded to the Miller Structure. The

Corps can issue an “after-the-fact” authorization when it determines that the work

does not contravene the public interest and complied with applicable guidelines.

See, e.g., 83 C.F.R. § 330.6(e); 39 Fed. Reg. 12115, 12123-24 (Apr. 3, 1974);

40 Fed. Reg. 31320, 31330-31 (July 25, 1975); 11 Fed. Reg. 117, 117A-826

(Sept. 11, 1946).

II. STANDARD OF REVIEW

Summary judgment is appropriate if the record shows “that there is no genuine

issue as to any material fact and the moving party is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a). In the context of a challenge to an agency action under

the Administrative Procedure Act (APA), “[sJummary judgment is the proper

mechanism for deciding, as a matter of law, whether an agency’s action is supported

by the administrative record and consistent with the APA standard of review.”

Blue Ocean Inst. v. Gutierrez, 585 F. Supp. 2d 36, 41 (D.D.C. 2008). Thus, in

evaluating a case on summary judgment, the court applies the standard of review

from the APA. See Shell Offshore Inc. v. Babbitt, 238 F.3d 622, 627 (5th Cir. 2001).

In a challenge to agency action brought pursuant to the APA, a court shall

“hold unlawful and set aside agency action, findings, and conclusions found to be,”

among other things, “arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law.” 5 U.S.C. § 706(2)(A)—-(D). When reviewing for arbitrariness and

capriciousness, a court considers whether an agency has “examine[d] the relevant

data and articulate[d] a satisfactory explanation for its action including a rational

connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n

of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 48 (1983) (quotation

omitted). Agency action is arbitrary and capricious when “the agency has relied on

factors which Congress has not intended it to consider, entirely failed to consider an

important aspect of the problem, offered an explanation for its decision that runs

counter to the evidence before the agency, or is so implausible that it could not be

ascribed to a difference in view or the product of agency expertise.” Jd. The scope of

review “is narrow and a court is not to substitute its judgment for that of the agency.”

Id. Instead, this court looks to “whether the decision was based on a consideration of

the relevant factors and whether there has been a clear error of judgment.” Judulang

v. Holder, 565 U.S. 42, 53 (2011).

The APA additionally requires courts to set aside agency action that exceeds

statutory authority. 5 U.S.C.§ 706(2)(C). In determining whether an agency has acted

within its statutory authority, courts “must exercise their independent

judgment.” Loper Bright Enters. v. Raimondo, 603 U.S. 869, 412 (2024).

IV. ANALYSIS

This case concerns the Corps’ issuance of NWP 14 to the Miller Structure.

First, the Court finds that Plaintiffs have standing to challenge the issuance of NWP

14. The Court also finds that Plaintiffs have not waived their CWA claims. The Court

will additionally admit Plaintiffs’ extra-record testimonies. Second, the Court finds

that the Corps reached unreasonable conclusions about General Conditions 5 and 9

and Regional Conditions 7. Because the Structure could only obtain NWP 14 if it

adhered to these conditions, the Court will vacate the NWP 14 issued to the Miller

Structure. Finally, the Court finds it inappropriate to vacate the Corps’ regulations

governing the issuance of after-the-fact permits and nationwide permits.

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A. Plaintiffs Have Standing.

For standing in federal proceedings, a party must demonstrate the “triad of

injury in fact, causation, and redressability.” Steel Co. v. Citizens for a Better

523 U.S. 83, 103 (1998). The injury in fact must be “a harm suffered by the

plaintiff that is ‘concrete’ and ‘actual or imminent.” Jd. (citing Whitmore □□□

Arkansas, 495 U.S. 149, 155 (1990)). Causation requires a “traceable connection”

between the plaintiffs injury and the defendant’s conduct. Id. Redressability requires

“a likelihood that the requested relief will redress the alleged injury.” Id.

Plaintiffs Atchafalaya Basinkeeper and Louisiana Crawfish Producers’

Association-West seek associational standing. Associational standing exists when at

least one of the entity’s “members would otherwise have standing to sue in their own

right, the interests at stake are germane to the [entity’s] purpose, and neither the

claim asserted nor the relief requested requires the participation of individual

members in the lawsuit.” Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC),

Ine., 528 U.S. 167, 181 (2000) (citing Hunt v. Wash. State Apple Advert. Comm,

432 U.S. 333, 343, 97 (1977).

When a case involves multiple plaintiffs, “[a]t least one plaintiff must have

standing to seek each form of relief.” Town of Chester v. Laroe Estates, Inc.,

581 U.S. 483, 434 (2017). Because both organizations are seeking the same form of

relief for each claim and associational standing, the Court can proceed to the merits

if a single member of either Atchafalaya Basinkeeper or Louisiana Crawfish

Producers’ Association-West has standing.

Turning to whether Plaintiffs’ members would have standing to sue in their

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own right: first, Plaintiffs must demonstrate that a member has suffered an injury in

fact to a “legally protected interest.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560

(1992). At summary judgment, injury must be set forth by specific facts rather than

by general allegations. Id. at 561.

The Court finds that Plaintiffs have adequately shown an injury in fact arising

from the Corps’ issuance of the Permit. Plaintiffs, commercial and recreational

crawfish fishermen, testify that the Miller Structure has affected the quality of water

in areas downstream from Pat’s Throat, thereby decreasing the quantity and quality

of the crawfish that they catch. (Docs. 30-3—30-7). Their income from their crawfish

yields has decreased, and their costs have increased because they must travel further

to access different fishing spots. One member of Louisiana Crawfish Producers’

Association-West, Jody Meche, attested:

While I continued to try crawfishing in Pat’s Throat after the structure

was built, its presence has significantly reduced available catch around

Pat’s Throat and Billy Littles Lake... . After 3 days, there were only 5-

6 crawfish in each trap, instead of the 50-90 I would have expected to

see. These crawfish did not look healthy, and were ugly, small, and

discolored.

[es]

Because of the continued presence of the structure, crawfishing in Pat’s

Throat has not been profitable for me, and I have had to drive to other

areas that were more productive, including Bayou Pigeon. It now takes

me more than an hour longer to travel by truck, with my boat trailer, to

get to the new area I have to launch from. This additional travel time

cuts into the time that I can spend working.

(Doc. 30-3 4 18, 21).

Another member of Louisiana Crawfish Producers’ Association-West,

Lon Theriot, Sr., attested that “[s]ince the dam’s construction, no one, including

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myself, is fishing in Ramah [where Billy Littles Lake is located] because Ramah has

dead water” that “[c]rawfish are unable to thrive in.” (Doc. 30-6 { 7). Theriot further

attested that he “usually make[s] around $1,000 per day when the crawfish are

running in Ramah. However, because the crawfish cannot survive there due to the

dam in Pat’s Throat, I cannot fish in Ramah.” (/d. 9). Additionally, while “it would

only take [Theriot] thirty (80) minutes to travel to Ramah,” but now he has an extra

commute time of 1.5 hours to access a different fishing spot. (/d. § 11). “This extra

travel time has impacted the amount of time [Theriot has] been able to fish, as well

as created added fuel cost... .” Ud. | 12).

Economic harm, such as that at issue here, has been recognized to establish

standing. See, e.g., Sierra Club v. Morton, 405 U.S. 727, 738 (1972). Defendants argue

that Plaintiffs only speculate that the Miller Structure is adversely affecting crawfish

in the area and decreasing their income, but the United States Court of Appeals for

the Fifth Circuit has held that mere “concern” or “belief” that an action causes harm

is sufficient to establish an injury in fact. See Sierra Club, Lone Star Chapter v.

Cedar Point Oil Co. Inc., 73 F.3d 546, 556 (5th Cir. 1996).

Members also testify that the Miller Structure blocked a navigable waterway,

and that this has harmed them personally. For example, one crawfisherman testified

that the Miller Structure made Pat’s Throat unnavigable, so he had to trailer his boat

and drive to a distant boat launch to access his fishing spot, incurring additional

commute-related expenses. (Doc. 30-3 § 22). Another crawfisherman testified that he

used to pass through Pat’s Throat nearly every day during high water season, first as

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a full-time commercial crawfisherman and now as a recreational fisherman, but the

Miller Structure has blocked boat access through Pat’s Throat, making it more

difficult for him to recreationally fish and taking away his access to navigable waters.

(Doc. 30-7 Jf 3, 8, 11, 12). See Sierra Club v. Morton, 405 U.S. at 738 (protected

interested may reflect aesthetic, conservational, and recreational, and economic

values); see also Silver Springs Paradise Co. v. Ray, 50 F.2d 356, 359 (5th Cir. 1931)

(The “public right of navigation entitles the public generally to the reasonable use of

navigable waters.”); La Civ. Code arts. 450, 452 (“[R]unning waters [and] the waters

and bottoms of natural navigable water bodies” are “public things,” which are “subject

to public use in accordance with applicable laws and regulations.”). The Declarations

provided by Plaintiffs establish that Plaintiffs’ members have the requisite injury in

fact to proceed with the standing analysis.

Second, Plaintiffs’ members must show traceability between the Corps’

authorization of the Miller Structure and their injury. Harm is fairly traceable when

there is a causal connection between the defendant’s conduct and the alleged injury.

Ctr. for Biological Diversity v. U.S. Env’t Prot. Agency, 987 F.3d 538, 542-48

(5th Cir. 2019). The Court finds that the traceability requirement has been satisfied

because, as Plaintiffs explain, when the Corps issued the Permit, it legalized the

structure and allowed it to remain in Pat’s Throat. If the Corps did not authorize the

Miller Structure, the Corps could have required that the structure be removed and

that the area be restored to pre-project conditions. (AR 90).

Third, individual members must show that their injury will be redressable by

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a favorable Court decision setting aside the Permit authorization. If the Court deems

that the Miller Structure did not satisfy NWP 14’s general and regional conditions,

this means that the Structure could only be authorized by an individual permit, not

a general one. An individual permit would impose greater procedural requirements

on the Corps and open up the possibility that the Corps may conclude that the Miller

Structure violates RHA Section 10 and CWA Section 404. This is sufficient to

establish redressability. Ondrusek v. U.S. Army Corps of Eng’rs, 123 F.4th 720, 734

(5th Cir. 2024) (“The injury is redressable by judicial review as long as there is some

prospect that fixing the alleged procedural violation could cause the agency to change

its position on the substantive action.”) (internal quotations omitted); see also

id. at 735 (preparation of a new decision “may at least force the Government to

reconsider its decision, which satisfies the redressabilitv element.”); Id. (“It is enough

for a plaintiff to show that there is a possibility that the procedural remedy will

redress his injury”) (internal quotations omitted). Therefore, members of the

Plaintiffs have standing to sue in their own right.

Plaintiffs also meet the requirements of associational standing because at least

one of the group’s members would otherwise have standing to sue in their own right,

as discussed, the interests at stake are germane to the organizations’ purposes, and

neither the claims asserted nor the relief requested requires the participation of

individual members in the lawsuit. Louisiana Crawfish Producer’s Association-

West’s members have demonstrated in the Declarations quoted above that they have

standing to sue in their own right. The interests at stake are germane to Louisiana

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Crawfish Producer’s Association-West’s purpose, which is to protect the economic,

environmental, and cultural interests of the Atchafalaya Basin and its residents, to

promote a healthy habitat for crawfish, fish, and other wildlife that the Basin

supports, and to protect and ensure public access to waters of the United States

located in the Basin. (Doc. 30-5 4 4). Nor do the claims asserted or relief requested

here require the participation of the organization’s individual members. See Gulf

Restoration Network v. Salazar, 683 F.3d 158, 168 (5th Cir. 2012) (“Because neither

the claims nor the relief require individualized proof, they are thus properly resolved

in a group context” (quotations omitted, cleaned up)). For these reasons, Louisiana

Crawfish Producer’s Association-West has associational standing, and because

Louisiana Crawfish Producer’s Association-West and Atchafalaya Basinkeeper seek

the same relief, the Court can proceed to the merits.

B. Plaintiffs Have Not Waived Their CWA Claims.

The parties disagree about the type of relief the Court should grant if it finds

that the Miller Structure did not meet all of NWP 14’s conditions. As mentioned, the

Corps issues RHA Section 10 and CWA Section 404(b) authorization under one NWP

14 document. 33 C.F.R. § 330.1(g) (““NWPs can be issued to satisfy the permit

requirements of [the RHA] [and] section 404 of the Clean Water Act.”).

The Corps asserts that the Court should only vacate the part of NWP 14 that

applies to RHA authorization, and that the CWA authorization should remain

unaffected, because Plaintiffs have waived their right to assert a CWA claim. The

Corps contends that Plaintiffs only made passing, conclusory references to CWA

violations in their motion for summary judgment, and that Plaintiffs do not have the

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right to assert a CWA in their reply to their motion for summary judgment because

“arguments raised for the first time in reply are generally forfeited.” Guillot on behalf

of T.A.G. v. Russell, 59 F.4th 748, 754 (5th Cir. 2023).

Plaintiffs respond that they have not waived their right to assert a CWA claim.

Plaintiffs contend that their claim that the Corps should not have issued NWP 14 to

the Miller Structure does not break down into separate CWA and RHA arguments

because NWP 14 grants authorization under both statutes. Plaintiffs argue that they

sufficiently asserted CWA claims in their motion for summary judgment. Plaintiffs

also assert that their Complaint put the Corps on clear notice of their CWA claims.

Furthermore, Plaintiffs contend that even if the Court finds that Plaintiffs did not

assert CWA claims in their motion for summary judgment, Guillot on behalf of T.A.G.

is inapplicable because they asserted CWA claims in their memorandum in opposition

to the Corps’ Cross Motion for Summary Judgment, which was not a “reply.”

The Court finds that Plaintiffs did not waive their CWA claims. NWP 14

authorizes both CWA and RHA activities under one general Permit Verification. (AR

7-AR 46). Plaintiffs repeatedly assert throughout their motion for summary

judgment that the Corps violated the CWA by using NWP 14 to authorize the Miller

Structure. (Doc. 380 at 1-2 (“The Corps violated the Clean Water Act and Rivers and

Harbors Act by [] arbitrarily and capriciously using NWP 14 to authorize the dam

even though the dam patently did not satisfy multiple conditions essential for

coverage under NWP 14”); Doc. 30-1 at 8 (Defendants “violated the Clean Water Act

and Rivers and Harbors Act when they issued Benjamin Miller an after-the-fact

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approval of his illegal construction of a dam... pursuant to [NWP] 14”); Jd. at 10

(‘[T]he Corps’ after-the-fact approval of the Miller Dam under NWP 14... was

arbitrary and capricious and illegal under the RHA and the Clean Water Act”); Id. at

48 (“[T]he Corps’ issuance of after-the-fact permit [] to Benjamin Miller for the dam

in Pat’s Throat violates the Clean Water Act and Rivers and Harbors Act”)). Plaintiffs

also sufficiently explain that NWP 14 authorizes CWA activities and that their

challenges apply to the entirety of NWP 14, including the CWA authorization

embedded within NWP 14. Plaintiffs’ motion for summary judgment makes clear that

the Plaintiffs challenged the CWA authorizations within Miller’s NWP 14. Therefore,

the Corps will vacate the entirety of NWP 14, not just the RHA Section 10

authorization embedded within it.

C. The Court Will Admit the Testimonies as Extra-Record

Evidence.

Having found that Plaintiffs have met standing requirements, the Court will

now turn to the issue of extra-record evidence. Plaintiffs ask the Court to admit the

testimonies in their Declarations as extra-record evidence.

The APA requires a court reviewing an agency action to “review the whole

record or those parts of it cited by a party.” 5 U.S.C. § 706. “[T]he focal point for

judicial review should be the administrative record already in existence, not some

new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 188, 142

(1973). Pursuant to this “record rule,” “[a]gency action is to be upheld, if at all, on the

basis of the record before the agency at the time it made its decision.” Indep. Turtle

Farmers of La., Inc. v. United States, 703 F. Supp. 2d 604, 610 (W.D. La. 2010)

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(quoting Louisiana ex rel. Guste v. Verity, 853 F.2d 322, 327 n.8 (5th Cir. 1988)).

However, an agency cannot “unilaterally determine what constitutes the

administrative record,” and its “designation of the administrative record, like any

established administrative procedure, is entitled only to a presumption of

administrative regularity.” Atchafalaya Basinkeeper v. U.S. Army Corps of Eng’rs, No.

18-23, 2019 WL 18159731, at *1 (M.D. La. May 14, 2019) (quoting City of Dall., Tex.

v. Hall, No. 07-0060, 2007 WL 3257188, at *4 (N.D. Tex. Oct. 29, 2007)).

“The Court may look outside the administrative record in narrow

circumstances.” OnPath Fed. Credit Union v. U.S. Dep’t of Treasury, Cmty. Dev. Fin.

Institutions Fund, No. 20-1867, 2021 WL 5769468, at *2 (E.D. La. Dec. 6, 2021).

“Supplementation of the administrative record is not allowed unless the moving party

demonstrates ‘unusual circumstances justifying a departure’ from the general

presumption that review is limited to the record compiled by the agency.”

Medina Cnty. Env’t Action Ass’n v. Surface Transp. Bd., 602 F.3d 687, 706

(5th Cir. 2010) (quoting Am. Wildlands v. Kepmthorne, 530 F. 3d 991, 1002 (D.C. Cir.

2008)). The introduction of “extra-record evidence” into the administrative record

indicates the inclusion of “additional evidence ‘outside of or in addition to the

administrative record that was not necessarily considered before the agency.” Gulf

Coast Rod Reel & Gun Club, Inc. v. U.S. Army Corps of Eng'rs, No. 3:18-CV-126, 2015

WL 1883522, at *1 (S.D. Tex. Apr. 20, 2015) (citing Calloway v. Harvey, 590 F. Supp.

2d 29, 38 (D.D.C. 2008)). The Fifth Circuit has specifically held that supplementation

with extra-record evidence “may be permitted” if the “the district court need|[s] to

19

supplement the record with ‘background information’ in order to determine whether

the agency considered all of the relevant factors. .. .” Medina, 602 F.3d 706 (cleaned

up) (citations omitted).

Plaintiffs argue that the testimonies in their Declarations provide background

information about the navigability of Pat’s Throat, its regular use in commerce, and

the effects of the Miller Structure on nearby water levels and the aquatic ecosystem

that will shed light on whether the agency considered all relevant factors. Plaintiffs

assert that the record is “obtuse” in this regard because the Corps did not conduct

notice and comment prior to issuing the Permit, and therefore Plaintiffs did not have

the opportunity to describe their use of the Pat’s Throat or the Structure’s effects on

the waterway. In opposition, the Corps argues that the testimonies in the

Declarations are not relevant to determining whether the agency reasonably

explained its decision, and that the attempt to introduce the testimonies as extra-

record evidence is untimely because it comes after the deadline to supplement the

record.

Having considered the parties’ arguments and the record as a whole, the Court

finds it appropriate to consider the testimonies as extra-record evidence because they

provide important “background information” that the record lacks. Specifically, the

testimonies contain information about the conditions of Pat’s Throat and the

Miller Structure’s impact prior to the Corps’ authorization of the structure. The

testimonies are relevant to determining whether the Corps considered the general

and regional conditions at issue here at the time it issued the permit.

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D. The Authorization Violated General and Regional Conditions.

Plaintiffs ask the Court to set aside and declare unlawful the Corps’

authorization of the Miller Structure. The Miller Structure was required to meet all

the terms and conditions of NWP 14 in order to obtain authorization under it.

33 C.F.R. §330.4(a). Plaintiffs allege that the Miller Structure fails to satisfy the

following conditions: (1) a project may not have more than a minimal adverse effect

on navigation (General Condition 1); (2) the project must be “constructed to withstand

expected high flows” and must not “impede the passage of normal or high flows”

(General Condition 9); (8) the project must have culverts “sufficiently sized to

maintain expected high-water flows and be installed at a sufficient depth to maintain

low flows to sustain the movement of aquatic species” (Regional Condition 1); and

(4) the project may not “occur in areas of concentrated shellfish populations” (General

Condition 5).

1. The Court Will Not Determine Whether the Corps

Reasonably Concluded that the Structure Did Not Violate

General Condition 1.

Plaintiffs contend that the structure violated General Condition 1, which

requires that “[nJo activity may cause more than a minimal adverse effect on

navigation.” (AR 19). There is no dispute that Pat’s Throat Bayou is a navigable water

of the United States. (AR 60; SAR 5). Fishermen have long passed through

Pat’s Throat Bayou to access nearby fishing areas. (Doc. 30-3 § 12 (“The area around

Pat’s Throat has historically been good to fish because it is a migration route for

fish.”); Doc. 80-7 § 3 (“My family and I have depended on Pat’s Throat for crawfishing

to make a living for my entire life.”); Doc. 30-6 § 13 (“I’ve been fishing in the

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[Pat’s Throat] area for almost my entire life.”)). Now, the Miller Structure prevents

direct access via Pat’s Throat from the Atchafalaya River to these nearby fishing

grounds. (AR 75-78; AR 55-57).

Prior to the Corps’ authorization of the Miller Structure, Plaintiffs twice

notified the Corps that Pat’s Throat’s was important to navigation and that the Miller

Structure impeded navigation. (AR 93; AR 87). The photographs of the

Miller Structure received by the Corps showed that it was impossible for boats to pass

through Pat’s Throat near the Atchafalaya River. (AR 55-57; AR 75-78; AR 938-94).

Also before the Corps was Miller’s photograph of debris in the waterway and his

assurance that boats could not pass through the waterway. (AR 51-55).

In its authorization, the Corps cited Miller’s statement for its conclusion that

the Miller Structure would not affect navigation. (AR 1) (“[T]he permittee provided

information that debris is common throughout the waterway and that the waterway

is not navigable so the project will not have an effect on navigability.”)).

According to Plaintiffs, the Corps acted arbitrarily and capriciously because it

did not consider the letters Plaintiffs had submitted to the Corps indicating that the

Miller Structure prevented navigation. Plaintiffs further contend that if the Corps

considered Plaintiffs’ letters, then the Corps acted arbitrarily and capriciously by

offering an explanation for its decision that ran counter to the evidence before it. Id.;

see also Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29, 48 (19838).

22

The Corps responds by citing a regulation used to assess navigability under

the RHA. The Corps claims that under the regulation, a waterway may still be

navigable even if an individual traveling by boat must carry his boat in certain areas

(which individuals moving through Pat’s Bayou would have to do, as boats cannot

pass the Miller Structure):

A stream may be navigable despite the existence of falls, rapids, sand bars,

bridges, portages, shifting currents, or similar obstructions. Thus, a waterway

in its original condition might have had substantial obstructions which were

overcome by frontier boats and/or portages, and nevertheless be a “channel” of

commerce, even though boats had to be removed from the water in some

stretches, or logs be brought around an obstruction by means of artificial

chutes.

33 C.F.R. § 329.10. The Corps also states that Pat’s Throat is not the only path to

nearby fishing areas, such as Billy Littles Lake, and that Plaintiffs’ members can still

travel to the Lake through alternative routes. The Corps further argues that it was

not required to complete a site visit to verify Miller’s assurance that Pat’s Throat is

not navigable because Miller’s photographs of the structure provided the Corps with

sufficient information to issue the verification. The Corps concludes that its decision

was reasonable, citing Oil & Gas Ass’n v. EPA, 161 F.3d 928, 934 (5th Cir. 1998)

(‘Ifthe agency’s reasons and policy choices conform to minimal standards of

rationality, then its actions are reasonable and must be upheld.”)).

Plaintiffs respond that the regulation cited by the Corps defining

“navigability,” 33 C.F.R. Part 329, is inapplicable because its purpose is to “define|]

the term ‘navigable waters of the United States’ as it is used to define authorities of

the Corps of Engineers.” 33 C.F.R. § 329.1. In other words, Plaintiffs argue that the

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regulation set the jurisdiction of the Corps to regulate activities, and is irrelevant to

answer the question of whether the structure has more than a minimal adverse effect

on “navigation.”

The Corps responds that under its understanding of navigability, as informed

by 33 C.F.R § 329.10, it considered the Miller Structure to have only a minimal impact

on navigation. While the Miller Structure may have made it difficult to navigate down

Pat’s Throat, there were other pathways that individuals could take to get to Billy

Littles Lake and other fishing areas.

The Court finds this to be a close call. Although the Miller Structure blocks

access to Pat’s Throat from the Atchafalaya River, boats can ultimately still reach

their destination through alternate paths, however inconvenient. Under the

regulation relied upon by the Corps, it appears that Pat’s Throat could potentially

still be considered navigable. Conversely, the Corps’ cited regulation only states that

Pat’s Throat ‘may’ be considered navigable, without certainty (“A stream may be

navigable despite the existence of . . . obstructions”). 33 C.F.R. § 329.10 (emphasis

added). Additionally, the Corps had information before it, which it failed to respond

to, indicating that fishermen regularly traversed through Pat’s Throat prior to the

construction of the Miller Structure. Accordingly, because the Court finds that the

Corps reached unreasonable conclusions regarding the conditions discussed below,

the Court need not conclusively decide this issue at this time.

2. The Corps Unreasonably Concluded that the Miller

Structure Did Not Violate General Condition 9 and

Regional Condition 7.

Plaintiffs contend that the Miller Structure did not meet the requirements of

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General Condition 9 and Regional Condition 7. General Condition 9 provides that

“It]he activity must be constructed to withstand expected high flows” and prohibits

any activity from restricting or impeding the normal flow of water. (AR 20). Regional

Condition 7 requires that culverts “must be sufficiently sized to maintain expected

high-water flows and be installed at a sufficient depth to maintain low flows to

sustain the movement of aquatic species.” (AR 37).

One month after the Corps issued the authorization, its employees exchanged

emails indicating they lacked information about the bottom depth of water at the

Miller Structure. (Doc. 21-2 at 1-2 (‘We don’t know the bottom elevation (NGVD) at

the culvert location.”)). The Corps’ authorization does not discuss the depth of the

culverts, and it does not discuss any specific consideration of water flow through the

culverts. (AR 1-6). Plaintiffs’ complaint that the Miller Structure affected water flow

in the area was also in the administrative record. (AR 88 (“The impoundment at Pat’s

Throat will... reduce water flow... .”)). The administrative record also contained

Miller’s photographs of the Miller Structure (AR 75—78; AR 56—57) and Miller’s

drawing of the Miller Structure, which did not show the low water mark or the bottom

elevation (AR 18).

Plaintiffs argue that the Corps’ authorization was arbitrary and capricious

because the Corps failed to consider whether Miller Structure’s culverts allowed

water through in a way that would not violate General Condition 9 or Regional

Condition 7.

The Corps responds that the photographs that Miller submitted confirmed that

25

water flows through the culverts and that the Corps reasonably concluded this was

sufficient to ensure that the Structure complied with General Condition 9 and

Regional Condition 7. (AR 75-78; AR 56-57). The Corps also asserts it was not

required to conduct a site visit to evaluate how the culverts affected water flow.

33 C.F.R. § 325.2(d)(2)(iv).

The Court agrees with Plaintiffs. The authorization document and subsequent

emails between Corps employees demonstrate that the Corps lacked highly relevant

information, such as the bottom elevation of water at the structure (Doc. 21-2), when

it determined that the structure would not impact water flow in violation of the two

conditions. The Corps made its determination based on (1) a few photographs

submitted by Miller taken during a few isolated moments in time (AR 75-78; 56-57),

especially when the Corps itself determined that those photographs did not represent

the lowest water level (Doc. 21-2); and (2) Miller’s drawing of the Miller Structure

that did not show the low water mark or the bottom elevation (AR 18). Accordingly,

the Court finds that the Corps acted arbitrarily and capriciously in determining that

the Miller Structure did not violate General Condition 9 and Regional Condition 7.

38. The Corps Unreasonably Concluded that the Structure

Did Not Violate General Condition 5.

Next, Plaintiffs claim that the Miller Structure violated General Condition 5,

which requires that “[nJo activity may occur in areas of concentrated shellfish

populations[.]” (AR 20). In this case, the relevant shellfish are crawfish.

Plaintiffs contend that even though the Corps acknowledged that the structure

would “permanently impact canal waterbottoms habitat and hydrology” (AR 1), and

26

that even though Louisiana Crawfish Producers Association-West informed the

Corps that its members (i.e., crawfishermen) “commercially fish” in “Pat’s Throat

Bayou and adjacent areas” (AR 87), the Corps failed to include any discussion of the

Miller Structure’s effect on crawfish populations in its authorization document.

Plaintiffs also cited testimony from its crawfishermen members indicating that they

fished in Pat’s Throat Bayou and relied on it to access other nearby fishing spots

(Doc. 30-3 J 9, 12-14; Doc. 30-7 { 3).

The Corps responds that the Declarants did not testify regarding the presence

of crawfish within Pat’s Throat itself. Instead, Declarants stipulated that Pat’s

Throat was an active fishing area, but necessarily not an active shellfish fishing area.

(Doc. 30-3 14-16). Therefore, the Corps concludes that there was nothing in the

record or in extra-record evidence to support the contention that the Miller Structure

was in an area containing concentrated shellfish populations.

The Court finds that the Corps arbitrarily and capriciously determined that.

the Miller Structure was not built in an area of concentrated shellfish populations.

Specifically, the Corps had in the record before it notice from crawfishermen that they

“commercially fished” in Pat’s Throat Bayou as well as adjacent areas. (AR 87). The

natural assumption that follows is that there were crawfish in Pat’s Throat Bayou.

Without discussing crawfish or explaining why it disagreed with Plaintiffs’

statement, the Corps failed to consider an important aspect of the problem, or even

inspect Pat’s Throat to determine whether it was an area containing shellfish. The

Court finds that the Corps did not have support for its determination that the Miller

27

Structure did not violate General Condition 5.

4, Conclusion.

In sum, the Corps failed to support its conclusion that the Miller Structure did

not violate General Conditions 5 and 9 and Regional Condition 7. For this reason, the

Corps’ authorization of the Miller Structure under NWP 14 authorization #MVN-

2021-01131-CF is invalid and vacated. However, at this time, the Court does not have

enough information to determine whether the Miller Structure affirmatively violated

the required general and regional conditions. Therefore, the Court will deny

Plaintiffs’ request to enjoin the application of NWP 14 generally and other nationwide

permits to the Miller Structure.

E. The Corps’ Regulations Governing After-the-Fact Permits and

Nationwide Permits Do Not Exceed the Corps’ Statutory

Authority Under RHA Section 10.

Plaintiffs turn from the issue of whether the Miller Structure met the

requirements of NWP 14 to the issue of whether the Corps had authority at all under

RHA Section 10 to issue regulations permitting after-the-fact permits and nationwide

permits.

Section 10 of the RHA states:

The creation of any obstruction not affirmatively authorized by

Congress, to the navigable capacity of any of the waters of the United

States is prohibited; and it shall not be lawful to build or commence the

building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead,

jetty, or other structures in any port, roadstead, haven, harbor, canal,

navigable river, or other water of the United States, outside established

harbor lines, or where no harbor lines have been established, except on

plans recommended by the Chief of Engineers and authorized by the

Secretary of the Army; and it shall not be lawful to excavate or fill, or in

28

any manner to alter or modify the course, location, condition, or capacity

of, any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or

inclosure within the limits of any breakwater, or of the channel of any

navigable water of the United States, unless the work has been

recommended by the Chief of Engineers and authorized by the Secretary

of the Army prior to beginning the same.

38 U.S.C. § 403 (emphasis added).

Plaintiffs argue that an interpretation that weighs the structure, legislative

history, and language of the text of Section 10 demonstrates that after-the-fact

permits and general permits exceed the express authority delegated by Congress to

the Corps in the RHA. The Court does not agree.

1. The Corps’ Regulations Authorizing After-the-Fact

Permits Do Not Exceed the Corps’ Authority Under the

RHA.

Plaintiffs first argue that Section 10 of the RHA prohibits the issuance of after-

the-fact permits, such as the one that Miller received. Plaintiffs point to language in

33 U.S.C. § 403, above, that states that it is unlawful to construct a structure, such

as the Miller Structure, unless the work was authorized by the Corps prior to

construction. Therefore, Plaintiffs argue, the Corps’ regulations allowing for the

issuance of after-the-fact permits (83 C.F.R. § 326.3(e)) are not authorized by

Congress. Plaintiffs further argue that the regulations undermine Congress's intent,

because the RHA was “enacted to protect navigation and navigable capacity of the

nation’s waters” (42 Fed. Reg. 37122 (Jul. 19, 1977)), and after-the-fact permits allow

for more instances of navigable obstruction.

The Corps responds that its authority to issue after-the-fact authorization is

29

inherent in RHA Section 12, 33 U.S.C. § 406, under which it has discretion to pursue

the removal of unauthorized structures. That section states that “the removal of any

structures or parts of structures erected in violation of’ Section 10 “may be enforced

by the injunction of [] district court[s.]” 833 U.S.C. § 406 (emphasis added). The statute

states, moreover, that “proper proceedings to this end may be instituted under the

direction of the Attorney General of the United States” Id. (emphasis added). The

Corps claims this provides it with enforcement discretion. See Opati v. Republic of

Sudan, 590 U.S. 418, 428 (2020) (“As we have repeatedly observed when discussing

remedial provisions using similar language, the word ‘may’ clearly connotes

discretion.”) (internal quotations omitted).

The Court finds that the Corps’ regulations do not exceed the Corps’ authority

under RHA Section 10. Section 10 describes what an individual building a structure

in WOTUS is prohibited from doing (e.g., the individual is prohibited from building

the structure without obtaining prior authorization from the Corps). This is clear

from the language of Section 10. 33 U.S.C. § 403 ([I]t shall not be lawful to

build ...”). It is also clear from Section 12, under which violators “shall be deemed

guilty of a misdemeanor” and punished through penalties and imprisonment if the

Corps decides to pursue an enforcement action. 33 U.S.C § 406.

What Section 10 does not do is place prohibitions on how the Corps may

respond to structures built without its prior authorization. Congress did not require

that the Corps respond at all to these structures, instead stating that the Corps “may”

respond by pursuing legal action. The Corps has issued regulations permitting it to

30

respond in ways that lie somewhere in between pursuing legal action, which it has

discretion to do, and not responding at all, which it also has discretion to do. One of

the methods within this range of options for response is the issuance of after-the-fact-

permits if the Corps is satisfied that the project will adhere to applicable RHA and

CWA requirements. In sum, the Corps did not exceed its authority under the RHA in

issuing its after-the-fact regulations.

2. The Corps’ Regulations Authorizing General Permits Do

Not Exceed the Corps’ Authority Under the RHA.

Plaintiffs next claim that RHA Section 10 contains no authority for the Corps

to issue general permits for entire categories of activities. Section 10 makes it

unlawful to excavate, fill, or alter navigable waters unless the work has been

“authorized” by the Corps beforehand. 33 U.S.C. § 408. Plaintiffs contend that while

the RHA grants the Corps to authority to authorize work via individual permits on a

case-by-case basis, general permitting schemes exceed the Corps’ authority to

“authorize” work. Plaintiffs point out that while the CWA expressly authorizes the

agency to create general permitting schemes (83 U.S.C § 1344(e)(1) ([T]he Secretary

may... issue general permits on a State, regional, or nationwide basis.”)), the RHA

contains no such express authorization. Plaintiffs also assert that the RHA’s

legislative history lacks reference to a general permitting scheme.

The Corps responds that the operative term RHA Section 10 is “authorize” (33

U.S.C. § 403 (Construction is prohibited “unless the work has been . . . authorized”

by the Corps), and that “authorize” is broad enough to encompass not just individual

permits, but also general permits. Moreover, with respect to the CWA’s express

31

general permitting scheme, the Corps replies that the RHA was enacted decades

before the CWA, and courts do not generally presume that Congress acts intentionally

and purposely when it includes particular language in one statute, but not another,

when the statutes are not contemporaneous. Burnett v. Stewart Title, Inc., 431 B.R.

894, 897 (S.D. Tex. 2010), affd sub nom. In re Burnett, 635 F.3d 169 (5th Cir. 2011).

The Court agrees with the Corps. The Court does not find that the Corps

exceeded its statutory authority by providing Section 10 RHA permits as NWP

authorizations. By using language as broad as “authorize,” Congress did not preclude

the Corps from issuing general permits. See also Vieux Carre Prop. Owners Residents

and Ass‘ns v. Brown, 40 F.8d 112 (5th Cir. 1994) (treating nationwide permits as valid

permits under the RHA).

In sum, Plaintiffs have failed to persuade the Court that the Corps’ issuance of

regulations authorizing after-the-fact permits and regulations allowing it to issue

nationwide permits exceeds the statutory authority granted to it in the RHA.

V. CONCLUSION

Accordingly,

IT IS ORDERED that Plaintiffs’ Motion for Summary Judgment (Doc. 30) be

and is hereby GRANTED IN PART AND DENIED IN PART. The Court finds that

the Corps reached unsupported conclusions that the Miller Structure did not violate

General Conditions 5 and 9 and Regional Condition 7.

IT IS FURTHER ORDERED that the Corps’ authorization of the Miller

Structure under authorization #MVN-2021-01131-CF is invalid and is VACATED.

IT IS FURTHER ORDERED that the Federal Defendants’ Cross Motion for

32

Summary Judgment (Doc. 33) be and is hereby GRANTED IN PART AND

DENIED IN PART.

IT IS FURTHER ORDERED that the matter is STAYED and

ADMINISTRATIVELY CLOSED to allow the Corps the opportunity to rectify the

deficiencies and develop the record with respect to the Conditions aforementioned.

315

Baton Rouge, Louisiana, this day of March, 2026

JUDGE BRIAN A.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

33