City of Shoreacres v. Waterworth

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED AUGUST 24, 2005
August 8, 2005
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk

No. 04-20527

CITY OF SHOREACRES; ET AL,

Plaintiffs,

CITY OF SHOREACRES; CITY OF
TAYLOR LAKE VILLAGE TEXAS;
GALVESTON BAY CONSERVATION AND
PRESERVATION ASSOCIATION; TEXAS
COMMITTEE ON NATURAL RESOURCES;
GALVESTON BAY FOUNDATION; HOUSTON
YACHT CLUB; PROFESSIONALS INVOLVED
IN SEAFOOD CONCERNED ENTERPRISES;
GULF RESTORATION NETWORK; CITY OF
SEABROOK; CITY OF EL LAGO,

Plaintiffs-Appellants,

versus

LEONARD D WATERWORTH, Colonel,
District Engineer, Galveston
District – US Army Corps of
Engineers; ROBERT B FLOWERS,
Lieutenant General, Commander
and Chief of Engineers, US Army
Corps of Engineers; LES BROWNLEE,
Acting Secretary of the Army;
UNITED STATES ARMY CORPS OF ENGINEERS,

Defendants-Appellees,

PORT OF HOUSTON AUTHORITY,
 Intervenor Defendant-Appellee.

Appeal from the United States District Court
for the Southern District of Texas

Before GARWOOD, SMITH and CLEMENT, Circuit Judges.

GARWOOD, Circuit Judge:

Plaintiffs-appellants brought this suit under 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., against the

United States Army Corps of Engineers (Corps) seeking recision of

a 33 U.S.C. § 1344 dredge and fill permit issued by the Corps to

the Port of Houston (Port) for the construction of a ten-berth

cargo and cruise ship terminal adjacent to the Bayport Shipping

Channel off Galveston Bay. The district court granted summary

judgment to the Corps and the intervenor Port. We affirm.

Facts and Proceedings Below

On October 8, 1998, the Port filed an application with the

Corps for a 33 U.S.C. § 1344 permit to dredge and fill navigable

waters of the United States. The Port proposed building a cargo

and cruise ship terminal on undeveloped land adjacent to the

Bayport Shipping Channel along the northwestern coast of

Galveston Bay. The plan called for seven cargo ship berths,

three cruise ship berths, and extensive ancillary facilities

2
along a region of the coast that is heavily industrialized. The

Port intends to finance the Bayport project with proceeds from a

$387 million 1999 bond issue for that purpose approved by the

voters of Harris County, Texas in which both the Port and Bayport

are located.

The Corps undertook the comprehensive technical and public

interest review required by the Code of Federal Regulations.

See, e.g., 33 C.F.R. § 230 (procedures for implementing NEPA); 33

C.F.R. § 320 (outlining the Corps’ general regulatory policy); 40

C.F.R. § 1502 (preparation of an environmental impact statement).

Following public input and preliminary technical work, the Corps

issued its Draft Environmental Impact Statement (DEIS) on

November 12, 2001. The Corps continued its technical work and

accepted public comment on the DEIS until August 2002. Nine

months later, on May 16, 2003, the Corps issued its Final

Environmental Impact Statement (FEIS) and entertained further

public comment until August 2003. The Corps then issued its

eight-volume Record of Decision (ROD) on December 19, 2003, in

which the Corps approved a plan for the construction of the

Bayport terminal and the mandatory preservation of undeveloped

areas elsewhere to compensate for the environmental loss at

Bayport. The Corps granted the 33 U.S.C. § 1344 dredge and fill

permit on January 5, 2004, over five years after the permit

application was filed.

3
 Meanwhile, as the Corps was considering the Bayport permit

application, it was also considering a similar dredge and fill

permit application filed in April 2000 by Texas City, Texas to

build a six-berth cargo terminal at Shoal Point in Galveston

County along the southwestern coast of Galveston Bay. The Corps

issued a permit to Texas City on April 23, 2003, approximately

one month before it handed down its FEIS on the Port’s Bayport

permit application.

On January 29, 2004, appellants filed their second (and

final) amended complaint asking the district court to vacate the

permit and enjoin the Port from proceeding with the Bayport

project because the Corps had issued the permit in violation of

the CWA and NEPA.1 Appellants also sought a preliminary

injunction against construction while judicial review was

pending. Rather than rule on this motion, the district court

agreed to an expedited pretrial schedule and a summary judgment

ruling by May 4, 2004. The Port then agreed to “stand still”

while the case went forward through summary judgment. The

parties filed cross-motions for summary judgment in April 2004,

and the district court granted summary judgment to appellees and

against appellants on May 4, 2004. Final judgment was entered

1
As with the original and first amended complaints
(respectively filed June 24 and August 15, 2003), the second
amended complaint did not name the Port as a defendant. The Port
is an intervenor, having been permitted on October 16, 2003, to
intervene as a matter of right under FED. R. CIV. P. 24(a).

4
the same day.

Discussion

1. Standard of Review

We review a grant of summary judgment de novo under the same

standard applied by the district court. Terrebonne Parish Sch.

Bd. v. Mobil Oil Corp., 310 F.3d 870, 877 (5th Cir. 2002).

The decision of the Corps to grant a permit under 33 U.S.C.

§ 1344 is reviewed under the standard set forth in the

Administrative Procedures Act, 5 U.S.C. § 701 et seq. We will

“hold unlawful and set aside” the Corps’ permit to the Port only

if we determine that the Corps’ “action, findings, and

conclusions” are, inter alia, “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” 5 U.S.C. §

706(2)(A); Shell Offshore v. Babbitt, 238 F.3d 622, 627 (5th Cir.

2001). “We accord substantial weight” to the Corps’

interpretation of its permit granting authority under 33 U.S.C. §

1344 because “‘[a]n agency’s construction of a statute it is

charged with enforcing is entitled to deference if it is

reasonable and not in conflict with the expressed intent of

Congress.’” Save Our Community v. USEPA, 971 F.2d 1155, 1163

(5th Cir. 1992) (quoting United States v. Riverside Bayview Homes

Council, Inc., 106 S. Ct. 455, 461 (1985)); Avoyelles Sportsmen’s

League, Inc. v. Marsh, 715 F.2d 897, 904 (5th Cir 1983) (“This

standard of review is highly deferential”); Sabine River

5
Authority v. U.S. Dep’t of Interior, 951 F.2d 669, 678 (5th Cir.

1992) (“[u]nder this highly deferential standard of review, a

reviewing court has the ‘least latitude in finding grounds for

reversal’”) (quoting North Buckhead Civic Assoc. v. Skinner, 903

F.2d 1533, 1538 (11th Cir. 1990)). “We must look at the decision

not as the chemist, biologist or statistician that we are

qualified neither by training nor experience to be, but as a

reviewing court exercising our narrowly defined duty of holding

agencies to certain minimal standards of rationality.”

Avoyelles, 715 F.2d at 905 (internal quotation marks and citation

omitted).

This deferential standard of review applies regardless of

whether we are reviewing the Corps’ decision under the CWA or

NEPA.

2. The Clean Water Act

a. Determination of Wetlands Jurisdiction

The centerpiece of appellants’ challenge to the dredge and

fill permit is that the Corps erroneously determined the extent

of its regulatory jurisdiction over the wetlands at the Bayport

site.2 Appellants maintain the entire approximately 146 acres of

2
The Clean Water Act requires a permit “for the discharge
of dredged or fill material into the navigable waters” of the
United States. 33 U.S.C. § 1344(a). “Waters of the United
States” are those waters affecting interstate or international
commerce, including “interstate wetlands.” 33 C.F.R. §
328.3(a)(2). The Corps does not have the authority to regulate
isolated, intrastate waters. Solid Waste Agency v. US Army Corps

6
wetlands at the Bayport site constitutes jurisdictional wetlands,

substantially more than what the Corps concluded were present

(the Corps found only 19.7 acres of jurisdictional wetlands, as

well as 126.7 acres of non-jurisdictional wetlands and 1.56 acres

of intertidal mud flats). Appellants contend that the Corps, by

undercounting the acreage within its wetlands jurisdiction,

corrupted the entire decisional process under the CWA.3

of Eng’rs, 121 S. Ct. 675, 683-84 (2001) (holding that the mere
presence of migratory birds does not bring an otherwise isolated
body of water under the regulatory jurisdiction of the Corps).
3
Appellants argue that the Corps’ determination of its
wetlands jurisdiction is a legal question subject to de novo
review. In particular, they argue that it was an error of law
for the Corps to refuse to consider whether overland sheet flow
should be used at all in determining whether certain waters are
“waters of the United States.” We disagree with this
characterization of the Corps’ decision. The Corps did not
categorically refuse to use overland sheet flow in its analysis.
Rather, it determined that in this particular setting the
overland sheet flow shown was as a factual, scientific matter
inadequate to establish a sufficient hydrological nexus with
interstate waters. In other words, unlike in In re Needham, 354
F.3d 340, 344 (5th Cir. 2003), in which the appellant challenged
the district court’s construction of the Oil Pollution Act, 33
U.S.C. 2201 et seq., the jurisdictional issue here may be more
properly considered as a question of fact concerning “the extent,
not the existence, of agency jurisdiction.” Avoyelles, 715 F.2d
897, 906 (5th Cir. 1983). The Corps generally has broad
discretion to decide whether a sufficient hydrological nexus
exists to bring wetlands under regulatory control:
The wetlands determination is precisely the
type of agency decision that is normally
subject to limited judicial review. The EPA
developed an extensive administrative record
in making its decision; it collected reports
from its own expert consultants, as well as
from the parties. The determination itself,
which requires an analysis of the types of
vegetation, soil and water conditions that

7
 According to the ROD, the Corps, using its Wetlands

Delineation Manual, initially determined on April 28, 1999, that

there were 102 acres of wetlands at the Bayport site subject to

its regulatory jurisdiction.4 The Corps concluded, however, that

it needed to reevaluate its jurisdictional determination after

the Supreme Court handed down Solid Waste Agency v. United States

Army Corps of Eng’rs, 121 S. Ct. 675, 683-84 (2001) (holding that

the “migratory bird rule,” upon which much of the Corps’ initial

determination in this case had been predicated, overreached the

Corps’ authority under the Clean Water Act). After re-surveying

Bayport, the Corps concluded that of the total some 146 acres of

wetlands at the site only 19.7 acres came within its

jurisdiction. The Corps then evaluated the Port’s permit

application in light of this determination.

We do not find it necessary to consider the several ways in

which appellants challenge the Corps’ jurisdictional

would indicate the existence of wetlands, is
the kind of scientific decision normally
accorded significant deference by the courts.
De novo review would permit the courts to
intrude into an area in which they have no
particular competence.
Id. (citations omitted); see also 40 C.F.R § 230.41(a)(2)
(stating that determining the extent of wetlands is a task for
specialists).
4
This determination followed a year and a half of study and
was the result of the Port’s request for an initial survey, filed
well before the Port actually submitted its dredge and fill
permit application, on the extent of the Corps’ wetlands
jurisdiction.

8
determination. In the ROD, the Corps responded point-by-point to

substantive public questions about its environmental impact

statements. One question concerned the possibility that using a

particular survey technology called LIDAR would enlarge wetlands

jurisdiction to 40 acres. The Corps replied that LIDAR is not an

approved technique in the Wetlands Delineation Manual, but in any

case:

Even assuming that all wetlands and other
aquatic areas on the Bayport site were
jurisdictional, which is not the case, the
mitigation provided by the [Port], involving
over 1,130 acres of wetlands and other
habitat, adequately compensates for
environmental impacts as evidenced by the
acceptance of this plan by the [other state
and federal] resource agencies. As a result,
even if the [Corps] were to conclude that all
of the aquatic areas on the site, including
all of the wetlands on the site, were subject
to [Clean Water Act] jurisdiction, the [Port]
has provided ample mitigation to compensate
for the loss of all aquatic areas on the site
that will be filled in or otherwise degraded
by the project. Consequently, the [33 U.S.C.
§ 1344] permit that the [Corps] proposes to
issue would still be fully justified in this
case by the generous mitigation package
offered by the [Port]. Therefore, issuance
of the proposed permit would still be
appropriate under all applicable laws and
regulations even if all aquatic areas on the
project site were subject to [Clean Water
Act] jurisdiction.

(emphasis added). Given that the Corps clearly would have made the

same decision even if it used the wetlands determination that

appellants advocate, we need not consider whether the Corps abused

its discretion in concluding that it could exercise regulatory

9
jurisdiction over only 19.7 acres of wetlands. Manning v. Upjohn

Co., 862 F.2d 545, 547 (5th Cir. 1989) (“Principles of judicial

restraint dictate that if resolution of an issue effectively

disposes of a case, we should resolve the case on that basis

without reaching any other issues that might be presented.”).5

b. Practicable Alternatives

The Corps may not issue a 33 U.S.C. § 1344 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). Appellants contend that Shoal Point and Pelican Island,

both of which are in southwestern Galveston Bay, are practicable

alternatives to the Bayport site but, in an abuse of discretion,

5
Appellants also argue that the allegedly flawed
jurisdictional determination resulted in inadequate compensatory
mitigation. They contend in particular that the permit the Corps
approved violated the longstanding Memorandum of Agreement (MOA)
between it and the Environmental Protection Agency
(EPA)concerning how to define proper compensatory mitigation. We
reject this contention. Not only does the Corps disagree with
this contention, which it has the discretion to do, the EPA
itself was involved in the decisionmaking process and ultimately
approved the Corps’ mitigation plan. Furthermore, the other
three resource management agencies that took part in the decision
– the United States Fish and Wildlife Service, the Texas
Commission on Environmental Quality, and the Texas Parks and
Wildlife Department – also approved of the Corp’s permit plan.
Moreover, in light of the unanimous approval of the Corps’ action
by every environmental regulator involved in this case, it simply
cannot be said that the Corps acted arbitrarily and capriciously
in issuing the dredge and fill permit to the Port.

10
were not considered by the Corps. 40 C.F.R. § 230.10(a)(ii)

(defining a practicable alternative as, inter alia, “[d]ischarge of

dredged or fill material at other locations in waters of the United

States...”). They assert that, as a result of this oversight, the

dredge and fill permit issued to the Port is unlawful under the

CWA.

While Shoal Point and Pelican Island are arguably plausible

alternatives given that they are reasonably proximate to Bayport

and may be environmentally acceptable, they must nevertheless be

“practicable” under a detailed test. An alternative is practicable

only if

“it is available and capable of being done
after taking into consideration cost, existing
technology, and logistics in light of overall
project purposes. If it is otherwise a
practicable alternative, an area not presently
owned by the applicant which could reasonably
be obtained, utilized, expanded, or managed in
order to fulfill the basic purpose of the
proposed activity may be considered.”

40 C.F.R. § 230.10(a)(2).

The Corps contends that neither Shoal Point nor Pelican Island

is a “practicable alternative” under this definition for several

reasons. First, Shoal Point was not “available.” On April 23,

2003, the Corps issued a permit to Texas City to build a six-berth

cargo and cruise ship terminal at Shoal Point and thus Shoal Point

was not available to the Port. Shoal Point was also unavailable

for the additional reason that the Port undisputedly has no

11
authority to condemn land outside of Harris County, TEX. WATER CODE

§ 62.1071(c), and the absence of eminent domain power would present

a serious impediment to assembling the many contiguous parcels at

Shoal Point that the project would require.6

Furthermore, neither Shoal Point nor Pelican Island is a

logistically feasible alternative, and thus is not “practicable,”

because the Port intends to fund its project with the proceeds of

a 1999 Harris County bond issue. The proceeds of this bond issue,

however, could not legally be spent outside of Harris County, which

excludes both Shoal Point and Pelican Island because they are in

Galveston County.

In addition, building the new terminal at Shoal Point or

Pelican Island would not comport with the Port’s “overall project

purpose,” which was to further expand Harris County as one of the

nation’s major ports. Situating the port at either Shoal Point or

Pelican Island would frustrate the overall project purpose in the

further sense that it would needlessly complicate, rather than

simplify, the logistics of maritime commerce through Harris County

because the shipping industry would have to move passengers and

goods through locations that are comparatively remote from

metropolitan Houston.

Appellants only dispute two of these reasons. They contend

that the absence of condemnation power and the 1999 bond issue do

6
This was not a problem with respect to Pelican Island
because the Port purchased Pelican Island in 2000.

12
not ipso facto preclude acquiring land outside of Harris County

because the Port could have financed the project at Shoal Point or

Pelican Island with operating revenues. However, there is no

evidence that the Port has any surplus operating revenues, much

less that any such would be sufficient for that purpose, and the

passage of the bond issue suggests otherwise. Even if we were to

consider the Corps’ other reasons arbitrary and capricious, which

we hold they are not, appellants would still not prevail under this

objection because an unowned alternative site is a “practicable

alternative” under 40 C.F.R. § 230.10(a)(2) only if the site “could

reasonably be obtained.” A mere, unsupported theoretical

possibility of acquiring the alternative site, which is all that

appellants offer, does not constitute a showing that the

alternative site is reasonably obtainable, much less that the

Corps’ decision was arbitrary and capricious. Appellants have not,

therefore, shown that the Corps’ decision not to consider Shoal

Point and Pelican Island was an abuse of discretion.

c. Deepening the Houston Ship Channel

Appellants contend that the scope of shipping to and from the

Bayport terminal will eventually lead to deepening the Houston Ship

Channel from forty-five to fifty feet to accommodate the larger

vessels that are expected to traverse the oceans in the future.7

7
We note that the evidence plainly supports the Corps’
finding that the Bayport terminal does not require deepening of
the channel. The Corps determined that the current depth was

13
They argue that deepening the channel will have an adverse effect

on Galveston Bay’s freshwater ecosystems because it will alter the

Bay’s salinity. Because, they allege, the Bayport project will

lead to the deepening of the Houston Ship Channel and such

deepening will “cause or contribute to significant degradation of

the waters of the United States[,]” 40 C.F.R. § 230.10(c), the

Corps should not have issued the Port its dredge and fill permit.

40 C.F.R. § 230.10(c) does not, however, require the Corps to

consider the effects of the Bayport terminal itself once it begins

operations. Instead, section 230.10(c) requires the Corps to

consider whether “the discharge of dredged or fill material

[pursuant to a 33 U.S.C. § 1344 permit] will cause or contribute to

significant degradation of the waters of the United States”

(emphasis added), not the effect of any completed project. See,

e.g., 40 C.F.R. § 230.10(c)(3) (instructing the regulatory agency

to consider “[s]ignificantly adverse effects of the discharge of

more than “sufficient for operation of the Panamax vessels that
are expected to be the most common vessels calling at the
proposed facilities;” that “[t]he largest of these [Panamax
class] ships . . . are able to operate in minimum water depths of
40 feet;” and that :[f]or the foreseeable future, containerized
cargo shipped through the Gulf of Mexico ports, including the
Port of Houston, will be carried almost exclusively by Panamax
class ships, which include the largest ships able to transit the
Panama Canal.” These findings are not arbitrary or capricious or
unsupported by substantial evidence.
Of course, nothing in the challenged permit authorizes or
purports to authorize any channel deepening. As all parties
recognize, any deepening of the Houston Ship Channel requires
Congressional authorization.

14
pollutants on aquatic ecosystem diversity”) (emphasis added); see

also 40 C.F.R. § 230.11(g) (defining a “cumulative impact” for the

purposes of the CWA as “changes in an aquatic ecosystem that are

attributable to the collective effect of a number of individual

discharges of dredged or fill material”). The deepening of the

Houston Ship Channel will not result from the discharge of dredged

or fill material from the Bayport project. Rather, the deepening

of the Houston Ship Channel, if it ever occurs, will be the result

of a separate project (requiring Congressional approval) undertaken

for that specific purpose. It was, therefore, not an abuse of

discretion for the Corps to construe the CWA and its regulations as

not requiring the Corps to consider any future deepening of the

Houston Ship Channel as an adverse environmental consequence of

issuing a dredge and fill permit to the Port.8

3. The National Environmental Policy Act

Unlike the Clean Water Act, which has substantive

environmental goals, 33 U.S.C. § 1251 (“The objective of this

chapter is to restore and maintain the chemical, physical, and

biological integrity of the Nation’s waters.”), the National

Environmental Policy Act is strictly procedural. Robertson v.

8
Furthermore, even if we were to credit appellants’
construction of section 230.10, which is so capacious as to reach
even the most attenuated effects, the Corps plainly has the
discretion under the APA to adopt the narrower, and indeed far
more plausible, view that the regulation reaches only the
proximate environmental effects of the discharge itself.

15
Methow Valley Citizens Council, 109 S. Ct. 1835, 1846 (1989)

(stating that “it is now well settled that NEPA itself does not

mandate particular results, but simply prescribes the necessary

process”). “Indeed, NEPA does not prohibit the undertaking of

federal projects patently destructive of the environment; it simply

mandates that the agency gather, study, and disseminate information

concerning the projects' environmental consequences.” Sabine, 951

F.2d at 676.

NEPA requires, among other things, the preparation of a

comprehensive environmental impact statement whenever “proposals

for legislation and other major Federal actions significantly

affect[] the quality of the human environment...” 42 U.S.C. §

4332(2)(C); 40 C.F.R. § 1502. Appellants contend that the Corps’

final environmental impact statement was procedurally defective

under NEPA because (1) it did not properly elucidate the no-action

alternative required by 40 C.F.R. § 1502.14, and (2) it did not

treat the deepening of the Houston Ship Channel as a foreseeable

environmental consequence of the Bayport project under 40 C.F.R. §

1502.16. Appellants also argue that the Corps’ ultimate decision

to grant the dredge and fill permit to the Port was irrationally

inconsistent with one of the conclusions set forth in the FEIS.

a. The No-Action Alternative

An essential feature of an EIS is its analysis of alternatives

to the proposed action. This alternatives analysis, described by

16
the relevant regulation as “the heart of the environmental impact

statement[,]” must “[r]igorously explore and objectively evaluate

all reasonable alternatives” to the proposed action, including the

“no-action alternative” in which it is assumed that the project

does not go forward. 40 C.F.R. § 1502.14. The importance of the

alternatives analysis is reflected in our three-part test for

evaluating an EIS, which requires, inter alia, determining “whether

the agency in good faith objectively has taken a hard look at the

environmental consequences of a proposed action and

alternatives...” Miss. River Basin Alliance v. Westphal, 230 F.3d

170, 174 (5th Cir. 2000) (internal quotation marks and citation

omitted).9 NEPA requires only that the Corps consider alternatives

relevant to the applicant’s goals and the Corps is not to define

what those goals should be. Citizens Against Burlington, Inc. v.

Busey, 938 F.2d 190, 198 (D.C. Cir.) cert. denied 112 S. Ct. 616

(1991). In this case, the Corps identified seven alternative sites

and configurations for the Bayport project. These alternatives

were evaluated under twenty broad criteria and the Corps ultimately

9
We note that this three-part test is applied under the
highly deferential standard of review set forth in the APA.
Miss. River Basin Alliance v. Westphal, 230 F.3d 170, 174-75 (5th
Cir. 2000) (stating that the APA governs and that an agency
conclusion supported by evidence in the record warrants
deference).
The other two prongs of the test are (1) whether the
environmental impact statement is sufficiently detailed to allow
others to understand its reasoning; and (2) whether the
alternatives are sufficiently well developed to allow a “reasoned
choice.” Id.

17
issued a permit to build the ten-berth terminal at Bayport.

Appellants contend that the Corps’ no-action alternative,

which was part of the FEIS issued on May 16, 2003, was flawed

because it proceeded under the assumption that no new ship

terminals would be built in Galveston Bay. Appellants argue that

this assumption was irrational on its face because the Corps, just

three weeks earlier on April 23, had granted a permit to Texas City

to construct a six-berth terminal at Shoal Point on the

southwestern tip of Galveston Bay. Appellants assert that an

environmental impact statement this defective violates NEPA because

it does not supply a basis for informed decisionmaking.

The Corps responds that its Bayport FEIS was all but finished

when the ROD and permit for the Texas City project were issued. In

rejecting a request to prepare a supplemental EIS, the Corps

decided not to treat the proposed Shoal Point project as “an

existing condition” for the purposes of the Bayport FEIS because

the mere issuance of a 33 U.S.C. § 1344 permit to Texas City did

not make its six-berth project a fait accompli. The ROD noted that

other factors controlled when, or even if, the Shoal Point terminal

would ever be built. See Custer County Action Assn v. Garvey, 256

F.3d 1024, 1040 (10th Cir. 2001) (characterizing the no-action

alternative as the “status quo” or the “current level of

activity”). Rather than frame the not-yet-constructed Shoal Point

terminal as an “existing condition,” the Corps treated it as a

18
potential cumulative impact and evaluated the Port’s Bayport permit

application in light of this assumption.10 While appellants may not

agree with this methodology, it is neither arbitrary nor capricious

and thus is entitled to deference.

b. Deepening the Houston Ship Channel

Appellants contend, as discussed previously, supra § 2(c),

that the cargo ships of the future will be too large to use the

Houston Ship Channel at its current depth of forty-five feet and

will require future dredging to fifty feet. By being an otherwise

potential destination for such vessels, appellants assert that the

Bayport terminal, and by extension the 33 U.S.C. § 1344 permit to

dredge and fill for that terminal, will in effect “cause” the

channel to be deepened by five feet sometime in the future. Such

deepening, they maintain, will have drastic environmental

consequences because the deeper channel will raise the salinity of

transitional ecosystems in Galveston Bay that are primarily

freshwater. They charge that the Corps acted arbitrarily under

NEPA in refusing to consider the deepening of the Houston Ship

Channel as an indirect effect of granting the Port’s dredge and

fill permit because such deepening is a reasonably foreseeable, not

10
A 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 (Federal or non-Federal) or
person undertakes such other actions. Cumulative impacts can
result from individually minor but collectively significant
actions taking place over a period of time.” 40 C.F.R. § 1508.7.

19
speculative, cumulative effect of the permit.

First, before we examine whether deepening the Houston Ship

Channel is too speculative to warrant consideration as a cumulative

impact, there is meaningful doubt that deepening the channel can be

an effect NEPA requires the Corps to consider at all. NEPA

requires the Corps to take into account both the direct and

indirect adverse environmental consequences of issuing a 33 U.S.C.

§ 1344 dredge and fill permit. 42 U.S.C. § 4332(C)(ii); 40 C.F.R.

1502.16(a) & (b). Indirect effects are those “which are caused by

the action and are later in time or farther removed in distance,

but are still reasonably foreseeable.” 40 C.F.R. § 1508.8(b)

(emphasis added). “[A] ‘but for’ causal relationship is

insufficient to make an agency responsible for a particular effect

under NEPA and the relevant regulations.” DOT v. Pub. Citizen, 124

S. Ct. 2204, 2215 (2004). Rather, a plaintiff mounting a NEPA

challenge must establish that an alleged effect will ensue as a

“proximate cause,” in the sense meant by tort law, of the proposed

agency action. Id. (citing Prosser and Keeton for the proximate

cause standard).

However, it is doubtful that an environmental effect may be

considered as proximately caused by the action of a particular

federal regulator if that effect is directly caused by the action

of another government entity over which the regulator has no

control. In DOT v. Public Citizen, the Supreme Court held that the

20
Department of Transportation had no duty under NEPA to prepare an

environmental assessment of the effects of Mexican motor carriers

using American highways because the authority to allow or prohibit

Mexican motor carriers into the country rested solely with the

President. 124 S. Ct. at 2214-15. The Court held, in other words,

that pollution from Mexican motor carriers was not an “effect” that

the DOT had to consider because no “action” by the DOT would

“cause” Mexican motor carriers to enter the United States. It is

undisputed that the Houston Ship Channel can only be deepened by an

Act of Congress, not any decision by the Corps.11 If the rationale

of Public Citizen is applicable, the deepening of the Houston Ship

Channel, if it ever occurs, would not be treated as a 40 C.F.R. §

1508.8(b) “indirect effect” “caused” by the Corps’ decision to

grant a 33 U.S.C. § 1344 dredge and fill permit to the Port. 124

S. Ct. at 2217 (“We hold that where an agency has no ability to

prevent a certain effect due to its limited statutory authority

over the relevant actions, the agency cannot be considered a

legally relevant ‘cause’ of the effect.”). Under such an analysis,

the Corps, therefore, would not be obligated under NEPA to consider

this possibility and did not abuse its discretion in declining to

11
In the FEIS for the Bayport project, the Corps considered
the cumulative environmental consequences to Galveston Bay of
permitting the Bayport project to go forward in light of other
current projects in the Bay, including the current deepening of
the Houston Ship Channel from 40 to 45 feet, which was authorized
by Congress as part of the Water Resources Development Act of
1996, 33 U.S.C. § 2230 et seq.

21
do so.12

We need not, and do not, ultimately determine whether such a

Public Citizen analysis is appropriate in this context. That is so

because in any event, even if we were to assume that deepening the

Houston Ship Channel is not per se excluded as a matter of law

(merely because requiring Congressional approval) from the sorts of

cumulative environmental effects that the Corps ought to account

for in its FEIS, there was no need to do so in this case because

for a number of reasons it is impossible to know whether the

channel will ever be deepened. The Corps’ obligation under NEPA to

consider cumulative impacts is confined to impacts that are

“reasonably foreseeable.” 40 C.F.R. § 1508.7. An impact is

“reasonably foreseeable” if it is “sufficiently likely to occur

that a person of ordinary prudence would take it into account in

reaching a decision.” Sierra Club v. Marsh, 976 F.2d 763, 767 (1st

Cir. 1992). “Reasonable foreseeability” does not include “highly

speculative harms” that “distort[] the decisionmaking process” by

emphasizing consequences beyond those of “greatest concern to the

public and of greatest relevance to the agency’s decision.”

12
Appellants try to distinguish Public Citizen on the
ground that it involved whether the DOT had any obligation at all
to prepare an environmental assessment whereas in this case there
is no dispute that the Corps had to prepare an EIS. However,
both Public Citizen and this case turn on whether the
environmental consequences of another governmental entity’s
independent action should be treated as an “indirect effect” of a
prior action by a different agency.

22
Robertson, 109 S. Ct. at 1849 (internal quotation marks and

citations omitted); Vermont Yankee Nuclear Power Corp. v. Natural

Resources Defense Council, Inc., 98 S. Ct. 1197, 1215-16 (1978)

(“Time and resources are simply too limited to hold that an impact

statement fails because the agency failed to ferret out every

possible alternative, regardless of how uncommon or unknown that

alternative may have been at the time the project was approved.”);

Limerick Ecology Action v. NRC, 869 F.2d 719, 745 (3d Cir. 1989).

The Port properly cites several reasons why asserting that the

channel will be deepened is pure speculation. First, the Corps

expressly concluded that for the “foreseeable” future “almost” the

only vessels using the Bayport terminal would be Panamax-class

ships, the largest able to traverse the Panama Canal. Such vessels

already operate safely in the Houston Ship Channel and would not

require deepening it in the future. See note 7, supra. The Port

also points to a report prepared for Texas City’s Shoal Point

project indicating that there is no plausible economic

justification for deepening the channel in the foreseeable future.

In addition to the absence of any need to deepen the channel, it

could only be done, as mentioned above, by Congress alone and there

is no proposal for any such project.13 Finally, even if there were

13
This is not to imply that the absence of a proposal for a
related action means that it can automatically be excluded from
NEPA consideration. See Fritiofson v. Alexander, 772 F.2d 1225,
1243 (5th Cir. 1985).

23
a proposal, history indicates that it takes decades to dredge the

channel. The Port notes that the channel is only now being dredged

to forty-five feet and this comes more than thirty years and three

hundred million dollars after the deepening was initially

proposed.14

Significantly, appellants themselves offer absolutely no

concrete analysis with respect to the likelihood that the channel

will need to be dredged within the Corps’ twenty-seven year

planning horizon. Rather than explain how the Corps erroneously

interpreted the evidence in the administrative record, they simply

recite the platitude that mere uncertainty does not equal a lack of

reasonable foreseeablity. While this is true, indeed obvious, in

a sense, such proposition does not mean that it was an abuse of

discretion for the Corps to treat deepening the Houston Ship

Channel as too speculative to warrant consideration as a cumulative

impact of the Port’s dredge and fill permit. None of the cases

appellants cite involves an undertaking remotely resembling in any

of its implications an enterprise like deepening the Houston Ship

Channel. It cannot be said that the Corps acted arbitrarily and

capriciously under NEPA in reaching its decision.

14
We note too that the Corps concluded that Bayport will be
responsible for less than two percent of the expected growth in
shipping in Galveston Bay over the next several decades. Given
this conclusion, which appellants do not challenge, it cannot
plausibly be said that the Bayport project is foreseeably going
to “cause” the Houston Ship Channel to be deepened.

24
 c. The Split Alternative

Appellants also argue that it was arbitrary and capricious for

the Corps to issue a dredge and fill permit to the Port for the

construction of a ten-berth terminal at Bayport after granting a

permit to Texas City for the construction of a six-berth terminal

at Shoal Point because the Corps expressly rejected splitting the

Bayport project’s seven cargo berths between the two sites.

Appellants contend that if it was environmentally unacceptable to

split the Bayport project into four cargo berths at Bayport and

three cargo berths at Shoal Point, then it must, a fortiori, be

environmentally unacceptable for there to be seven cargo berths at

Bayport (plus three cruise ship berths) and six at Shoal Point.

Appellants misunderstand the nature of the Corps’

responsibility under NEPA, which is not to produce any particular

outcome but instead simply to produce informed decisionmaking with

respect to the specific application before it. The Corps prepared

its FEIS and ROD as part of the process of considering the Port’s

application for a 33 U.S.C. § 1344 dredge and fill permit for the

purpose of constructing a ten-berth terminal at Bayport. One of

the alternatives developed by the Corps contemplated splitting the

seven cargo berths between Bayport and Shoal Point. After careful

deliberation, the Corps concluded that the inefficiencies of this

four-three split rendered it inferior to siting all seven cargo

berths at Bayport alone. Nothing in this specific conclusion,

25
which pertained only to the Bayport permit application, implies

that the Corps could not rationally approve two separate permits

for two separate projects at Bayport and Shoal Point.15 Appellants,

therefore, have not shown that the Corps acted arbitrarily and

capriciously.

Conclusion

For the foregoing reasons, the judgment of the district

court is

AFFIRMED.

15
We also note that Bayport is significantly closer to
Houston than is Shoal Point. The Port’s Bayport project was
always intended to handle cargo destined for Houston (including
that to thereafter be further transported over land out of
Houston). That was not true to the same extent with respect to
Texas City’s Shoal Point project.

26