Case: 22-60397 Document: 00516886063 Page: 1 Date Filed: 09/06/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
September 6, 2023
No. 22-60397 Lyle W. Cayce
____________ Clerk
Healthy Gulf; Sierra Club,
Petitioners,
versus
United States Army Corps of Engineers;
Stephen Murphy, in his official capacity as
New Orleans District Commander, U.S. Army Corps of Engineers;
Martin Mayer, in his official capacity as Chief, Regulatory Division,
New Orleans District, U.S. Army Corps of Engineers,
Respondents.
______________________________
Petition for Review of a Permit by
the U.S. Army Corps of Engineers
Agency No. MVN-2016-01501-WII
______________________________
Before King, Smith, and Elrod, Circuit Judges.
Jerry E. Smith, Circuit Judge:
Driftwood LNG and Driftwood Pipeline (jointly “Driftwood”) want
to convert natural gas produced in the United States into liquefied natural
gas (“LNG”) for export to international markets. That undertaking involves
building an LNG production and export terminal and a pipeline that will con-
nect to existing interstate pipeline systems; the terminal would be located on
the Calcasieu River in Louisiana.
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Numerous federal and state agencies are involved in the approval and
permitting process for projects such as Driftwood’s. One of those agencies—
the U.S. Army Corps of Engineers (“the Corps”)—granted Driftwood one
of the requisite permits.
Petitioners Healthy Gulf and Sierra Club petition for review of that
permit, alleging that the Corps’s decision violated the governing statute and
was arbitrary and capricious. We disagree, so we deny the petition.
I.
We briefly survey the statutory and regulatory landscape of natural gas
pipeline approval before discussing the facts particular to this case.
A.
The Natural Gas Act gives the Federal Energy Regulatory Commis-
sion (“FERC”) authority over the approval process for LNG terminals and
pipelines. 15 U.S.C. §§ 717b(e)(1) (terminals), 717f(c) (facilities generally,
including pipelines). We focus on the approval process for terminals because
petitioners challenge the approval process only as it pertains to Driftwood’s
LNG terminal, not the pipeline.
FERC acts as “the lead agency for the purposes of coordinating all
applicable Federal authorizations and for the purposes of complying with the
National Environmental Policy Act of 1969” (“NEPA”). Id. § 717n(b)(1).
Other state and federal agencies, including the Corps, “shall cooperate with”
FERC. Id. § 717n(b)(2).
One of Corps’s roles is ensuring compliance with the Clean Water Act
(“CWA”), which generally prohibits “the discharge of any pollutant”—
including dredged spoil, rock, and sand—into the “navigable waters” of the
2
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United States.1
Some areas of water—labeled “special aquatic sites”—have signifi-
cant ecological characteristics and are generally important to the environ-
mental health of a region’s ecosystem. 40 C.F.R. § 230.3(m). Those include
wetlands.2
The CWA allows the Corps3 to “issue permits, after notice and
opportunity for public hearings[,] for the discharge of dredged or fill material
into the navigable waters at specified disposal sites.” 33 U.S.C. § 1344(a). In
selecting those sites and approving permits, the Corps ensures compliance
with certain CWA-mandated regulations called the “Section 404(b)(1)
Guidelines” (the “Guidelines”), codified at 40 C.F.R. §§ 230.1–.26, and the
Corps’ own permit regulations, see 33 C.F.R. §§ 320.1–332.8.
The governing principle of the Guidelines is that, in general, “no dis-
charge of dredged or fill material” is permitted where it would “cause or
contribute to significant degradation of the waters of the United States.”
40 C.F.R. § 230.10(c). The Corps’s goal is “no overall net loss to wetlands.”
CWA § 404(b)(1) Guidelines, 55 Fed. Reg. 9210, 9211 (Mar. 12, 1990).
To that end, the Corps performs a three-step analysis of (i) avoidance,
(ii) minimization, and (iii) compensatory mitigation. See id. at 9212. First,
avoidance: “[N]o discharge of dredged or fill material shall be permitted if
there is a practicable alternative . . . which would have less adverse impact[,]
_____________________
1
33 U.S.C. §§ 1311(a), 1362(6)–(7); see also id. § 1362(12) (defining “discharge of
a pollutant” as “any addition of any pollutant” for our purposes).
2
“Wetlands generally include swamps, marshes, bogs, and similar areas.”
33 C.F.R. § 328.3(c)(1).
3
Technically, the Secretary of the Army, who has delegated the authority to the
Chief of Engineers. 33 C.F.R. § 323.6(a), (d).
3
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. . . so long as the alternative does not have other significant adverse
environmental consequences.” 40 C.F.R. § 230.10(a). That requirement is
often called the least environmentally damaging practicable alternative
(“LEDPA”).
Alternatives are practicable if they (i) are “available” and (ii) feasible
after considering “cost, existing technology, and logistics in light of overall
project purposes.” Id. § 230.10(a)(2). And in the specific case of projects
located on special aquatic sites but which are not inherently water-
dependent, “practicable alternatives that do not involve special aquatic sites
are presumed to be available, unless clearly demonstrated otherwise.” Id.
§ 230.10(a)(3).
Second, minimization: Permittees must take “appropriate and prac-
ticable steps” to minimize potential deleterious consequences of the dis-
charge on the aquatic ecosystem. Id. § 230.10(d).
Third, compensatory mitigation: “Appropriate and practicable com-
pensatory mitigation is required for unavoidable adverse impacts which
remain” after adequate avoidance and mitigation. 55 Fed. Reg. at 9212; see
also 33 C.F.R. § 332.2. Compensatory mitigation includes the “restoration,
enhancement, establishment, and in certain circumstances preservation” of
aquatic resources. 33 C.F.R. § 332.3(a)(2); see also id. § 332.2.
There are three main types of mitigation, which the Corps “shall
consider” in the following order. Id. § 332.3(b)(1). At the apex are mitigation
bank credits. Id. § 332.3(b)(2). Mitigation banks are sites established (and
often operated) by permitted, public or private sponsors to restore, establish,
enhance, and/or preserve aquatic resources. Id. § 332.2. Purchasing a credit
transfers the mitigation obligation from the credit purchaser to the bank
sponsor. Id.
The next-preferred type is in-lieu fee program credits. Id.
4
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§ 332.3(b)(3). In-lieu fee programs operate similarly to mitigation banks but
generally involve more risk of unsuccessful mitigation and a potentially
longer timeframe for mitigation because mitigation banks do not make credits
available until specific environmental milestones have been met. See id.
§ 332.3(b)(2)–(3).
At the bottom of the hierarchy is permittee-responsible mitigation.
See id. § 332.3(b)(4)–(6). Instead of purchasing credits from a mitigation
bank or in-lieu fee program, the permittee undertakes the mitigation efforts
directly—and retains full responsibility for them. Id. § 332.2. Permittee-
responsible mitigation is the only option for projects not within the service
area of a mitigation bank or in-lieu fee program. Id. § 332.3(b)(4).
The hierarchy exists as a default (and procedural requirement given
that it provides the order in which the Corps must “consider” options), but
the Corps may override it as appropriate. Id. § 332.3(b)(2)–(3).
The entire above process for CWA permitting, however, is just one
piece of the regulatory puzzle: As we noted, there are often multiple agencies
involved. Under the NEPA, for any project that is a “major Federal
action[]” and “significantly affect[s] the quality of the human environment,”
an agency must prepare a statement describing, among other things, the pro-
ject’s environmental impact, inevitable adverse environmental effects, and
alternatives. 42 U.S.C. § 4332(2)(C). In other (and more common) words,
an environmental impact statement, or “EIS.” FERC produced the EIS for
Driftwood’s project in cooperation with other agencies.
NEPA documents “will in most cases provide the information for the
evaluation of alternatives under the[] Guidelines,” but they may “address a
broader range of alternatives than required” for the Corps’s purposes.
40 C.F.R. § 230.10(a)(4). They may also “not have considered the alter-
natives in sufficient detail to respond to the requirements of the[] Guide-
5
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lines,” in which case the Corps must supplement them as needed. Id.
B.
Driftwood intends to develop a project to export LNG to domestic and
foreign markets. The project comprises two parts: (i) an LNG production
and export facility and (ii) ninety-six miles of pipeline that will connect to the
interstate pipeline infrastructure and transport natural gas to the LNG facil-
ity. Again, only the facility is at issue here. Driftwood wants to locate the
project in southwestern Louisiana, on the west bank of the Calcasieu River
near Carlyss. That site offers “deep water access to accommodate the safe
berthing and loading of LNG” needed for the project. It also provides access
to the Calcasieu Ship Channel (and, ultimately, to the Gulf of Mexico). Drift-
wood expects the facility to produce approximately 60,800 million pounds of
LNG per year, which will be exported on an average of one LNG carrier per
day.
The relevant application process began in 2017, when Driftwood
sought approval from FERC, the lead agency for the project. In 2019, FERC
published an EIS of over 500 pages after providing several opportunities for
public input.
The EIS identified six potential alternative locations for the LNG
facility, including the one—Alternative Site 6 in the EIS—at issue here.4
FERC rejected Alternative Site 6 because, although “development of th[e]
site would affect about 50 acres fewer wetlands than the proposed site, the
wetlands in the northern portion of the site appear[ed]” to contain a “vege-
tation community of special concern.” Moreover, Alternative Site 6 would
require two miles of additional pipeline. The site therefore “did not provide
_____________________
4
As we discuss infra, the EIS analyzed Alternative Site 6 because a member of the
public had suggested it during the public comment period on the draft EIS.
6
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a significant environmental advantage to Driftwood’s proposed site.”
FERC authorized the project in April 2019. 167 FERC ¶ 61,054
(2019). In parallel, in March 2017, Driftwood jointly applied to the Corps for
a CWA permit and to the Louisiana Department of Natural Resources for a
Coastal Use permit. The application requested permission to develop 718
acres of a 790-acre site for the LNG facility, which would result in the per-
manent loss of 319.3 acres of wetlands.
Under both state and federal law, Driftwood needed to offset the
negative environmental impacts of its project. First, under Louisiana law,
Driftwood had to use the dredged material beneficially because the project
involved dredging more than 25,000 cubic yards.5 Second, under the CWA,
Driftwood needed to provide compensatory mitigation for the permanent
and unavoidable loss of coastal wetlands.
Driftwood killed the proverbial two birds with one stone. As part of
its compensatory mitigation, Driftwood asked to offset 134.3 acres of
impacted wetland by purchasing credits from an approved mitigation bank.
But it would offset the remaining 185.0 acres through the beneficial use of
dredged material—specifically, depositing it strategically in ten areas, ulti-
mately to restore an estimated 3,000 acres of emergent, estuarine intertidal,
and scrub or shrub wetlands.6
The Corps and the Louisiana Department of Environmental Quality
(“LDEQ”) issued a joint public notice in March 2018 and opened a twenty-
_____________________
5
The project required dredging over 8 million cubic yards of material, far in excess
of the 25,000-cubic-yard requirement. Driftwood had limited alternatives under state
requirements, including contributing to the Louisiana Coastal Resources Trust, but it
chose to use the dredged material beneficially.
6
In the short term, Driftwood’s proposed beneficial use would restore approxi-
mately 496.4 acres of saline marsh and 149.4 acres of fresh marsh, or about 650 acres total.
7
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day comment period. Interested parties submitted numerous comments, to
which Driftwood and the Corps responded. Among the commenters was
Healthy Gulf, then known as the Gulf Restoration Network.7 Healthy Gulf’s
comment did not discuss Alternative Site 6, nor did any of the other com-
ments.
One untimely commenter, however, did mention Alternative Site 6.
In about September/October 2018, retired ecologist Kenneth Teague
emailed FERC (copying other agencies), commenting on FERC’s draft EIS
during FERC’s public comment period and raising, inter alia, the use of
Alternative Site 6. Teague also emailed the Corps directly and expressed
concerns about the standards used to assess possible contamination of the
dredged material Driftwood sought to use beneficially. In that same email,
he acknowledged that he had “missed” the Corps’s “public notice.” The
Corps noted in internal communications that the comments arrived “way
outside of [its] Public Comment period and close to [its] permit decision.”
In May 2019, the Corps published a memorandum detailing its envir-
onmental evaluation. That memorandum incorporated by reference particu-
lar parts of FERC’s EIS. It also discussed alternative locations for the project
but not Alternative Site 6 specifically.8 It concluded that Driftwood’s pro-
posed location was the least environmentally damaging practicable alterna-
tive (“LEDPA”).
The memorandum also addressed Driftwood’s proposed compensa-
tory mitigation. The Corps used the Louisiana Wetland Rapid Assessment
_____________________
7
Our Story, Healthy Gulf, https://healthygulf.org/about-us/our-story/ (last
visited June 28, 2023).
8
“Alternative Site 6” in the Corps’s memorandum corresponded to “Alternative
Site 4” in the EIS.
8
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Method (“LRAM”) to evaluate the impact of Driftwood’s project and com-
pensation. The Corps allowed Driftwood to mitigate using both credits and
the beneficial use of the dredged material, finding that the “results are
expected to outweigh the traditional mitigation bank credit program for
impacts to estuarine, palustrine emergent, and palustrine scrub-shrub wet-
land communities.”
The Corps ultimately concluded that the project complied with the
Guidelines and issued a permit to Driftwood in May 2019. The permit came
with numerous conditions designed to lessen the environmental impact and
to require Driftwood to implement its beneficial-use plan.
In July 2022—over three years after the issuance of the permit—
Healthy Gulf and the Sierra Club petitioned for review, alleging Adminis-
trative Procedure Act (“APA”) and CWA violations. Driftwood intervened.
In January 2023, the Corps moved for judicial notice of the permit it
had issued to a third party for a project that is located in part on Alternative
Site 6. Petitioners opposed, and the court carried the motion with the case.
We do not rely on the information in question and therefore deny the motion
as moot.
II.
We use APA standards to assess administrative challenges to permits
issued under the CWA. See Buttrey v. United States, 690 F.2d 1170, 1183 (5th
Cir. 1982). Per the APA, we hold unlawful and set aside agency action found
to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accor-
dance with law.” 5 U.S.C. § 706(2)(A). The Corps satisfies that require-
ment by examining and considering the relevant data and articulating a satis-
factory explanation for its decision on permitting. Shrimpers & Fishermen of
the RGV v. U.S. Army Corps of Eng’rs, 56 F.4th 992, 996 (5th Cir. 2023).
Putting it another way: We ask whether “the agency’s path may reasonably
9
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be discerned.”9 The standard is deferential, and we do not substitute our
judgment for the agency’s. FCC v. Fox Television Stations Inc., 556 U.S. 502,
513–14 (2009). That is particularly true where there are technical and
scientific findings. See Shoreacres v. Waterworth, 420 F.3d 440, 445 (5th Cir.
2005).
III.
On two grounds, the petitioners assail the Corps’s decision to issue
Driftwood a permit.
First, the Corps “incorporat[ed]” the portion of FERC’s EIS analyz-
ing alternatives to the project but did not specifically assess Alternative
Site 6. The Corps therefore failed to identify the LEDPA, which petitioners
suggest may be Alternative Site 6. Second, the Corps did not adequately jus-
tify its deviation from the statutory hierarchy of compensatory mitigation
schemes, which petitioners repeatedly stress is “rigid.” Furthermore,
according to petitioners, even if the hierarchy were flexible, the Corps failed
to address “serious concerns about the viability of the [proposed] dredged
material plan.”
The Corps rebuffs both attacks, so its issuance of the permit emerges
unscathed.10
_____________________
9
Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 43 (1983) (quoting Bowman Transp. Inc. v. Ark.-Best Freight Sys., 419 U.S. 281,
286 (1974)).
10
We briefly dispose of two arguments. Driftwood and amici ask us to deny the
petition as barred by laches because petitioners waited too long to petition for review.
Because we deny the petition on other grounds, we pretermit any discussion of laches,
including whether the doctrine still applies in the context of environmental agency actions.
Driftwood also asserts that petitioners’ argument about Alternative Site 6 is
“moot” because the site is unavailable, so there is no way for us to provide petitioners with
meaningful relief. Driftwood misapprehends the relief we can provide. The remedy poten-
10
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A.
Petitioners fault the Corps for not adequately considering Alternative
Site 6 and thereby failing to demonstrate that the project was the LEDPA.
Although FERC’s EIS did reject Alternative Site 6, it concluded only that it
“did not provide a significant environmental advantage to Driftwood’s pro-
posed site,” so it “did not evaluate it further.” On the other hand, the
Corps’s memorandum did not discuss Alternative Site 6 at all. According to
petitioners, even if the Corps had incorporated the entire discussion of alter-
native sites from the EIS into its memorandum, FERC’s findings did not
meet the demands of the CWA. After all, the CWA requires identifying the
least environmentally damaging option, a more exacting standard than assess-
ing whether one alternative offers a significant environmental advantage over
another.
A necessary premise of petitioner’s theory is that the Corps had an
obligation to consider Alternative Site 6. Because it did not, petitioners’
argument fails.
In general, parties challenging an agency’s compliance with its legal
duties must “structure their participation so that it . . . alerts the agency to
the [parties’] position and contentions.”11 Thus, “[u]nder ordinary princi-
ples of administrative law a reviewing court will not consider arguments that
[parties] failed to raise in timely fashion before an administrative agency.”
Gulf Restoration Network v. Salazar, 683 F.3d 158, 174–75 (5th Cir. 2012)
(quoting Sims v. Apfel, 530 U.S. 103, 114–15 (2000) (Breyer, J., dissenting)).
_____________________
tially available is the setting aside of the issuance of the permit, not an injunction that the
Corps locate the project on Alternative Site 6. Driftwood’s mootness claim fails.
11
Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 764 (2004) (alterations in original)
(quoting Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 553
(1978)).
11
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And in the case of alternatives, parties generally must raise them during the
public comment period.12 Moreover, the Corps presumes that “all interested
parties and agencies will wish to respond to public notices.” 33 C.F.R.
§ 325.3(d)(3).
There is no dispute that the Corps did indeed provide an opportunity
for public comment as required by law.13 Indeed, Healthy Gulf’s predecessor
took advantage of the public comment period to point out the need to address
alternatives and satisfactorily analyze them to determine the LEDPA. That
comment was entirely justified: The joint public notice did not discuss any
alternatives analysis, whether already undertaken or contemplated.
There is also no dispute that notice of Alternative Site 6 was provided
to the Corps in an untimely manner. Teague emailed the Corps in September
2018, well outside the March 2018 comment window. And Teague’s com-
ments directed specifically to the Corps did not mention Alternative Site 6
or, indeed, any alternatives at all. Instead, he focused on the potential con-
tamination of the dredged material. Later, in October 2018, he emailed offi-
cials of numerous agencies, including the Corps, informing them that he had
provided an updated comment to FERC during its public comment window
for the draft EIS. But that comment was expressly directed to FERC, not the
Corps: It was addressed to FERC’s secretary, discusses only the draft EIS,
and referred to “FERC’s analysis” and “FERC staff.”
_____________________
12
See Shrimpers, 56 F.4th at 998 (“More importantly, [the submitted comments]
do not recommend this second alternative Petitioners now suggest.”); accord Hillsdale
Env’t Loss Prevention, Inc. v. U.S. Army Corps of Eng’rs, 702 F.3d 1156, 1170 (10th Cir.
2012).
13
See 33 U.S.C. § 1344(a) (“The Secretary may issue permits[] after notice and
opportunity for public hearings . . . .”); see also 33 C.F.R. § 325.3 (specifying the public
notice procedures).
12
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It is therefore arguable whether anyone sufficiently alerted the Corps
to Alternative Site 6 at all. Teague’s comments to the Corps did not mention
alternatives, but only contamination. And Teague’s comments about Alter-
native Site 6 were addressed to FERC, in reference to the EIS, and submitted
during the EIS comment process, with numerous other agencies copied. But
even assuming that Teague’s comments put the Corps on notice, they were
still untimely in the Corps’s permitting process. And untimely arguments
are not generally available on judicial review. Gulf Restoration Network,
683 F.3d at 174–75.
Petitioners unsuccessfully attempt to excuse the tardiness on several
grounds. The first is that the Corps made it functionally impossible for peti-
tioners to raise their point about Alternative Site 6 during the public com-
ment period. As petitioners correctly note, the Corps’s joint public notice
did not mention any particular alternatives (or indeed any analysis of alter-
natives).14 That omission, according to petitioners, made it impracticable for
Teague (or petitioners, or anyone else) to offer any specific comment on
Alternative Site 6. Petitioners accordingly contend that they were excused
from alerting the Corps to their specific contention that Alternative Site 6
was an alternative worth considering.
Petitioners overreach. Although the joint public notice did not specifi-
_____________________
14
Unbeknownst to petitioners at the time, however, Driftwood had engaged in an
analysis of alternatives. It listed the mandatory site criteria (inter alia, sufficient depth,
adequate shoreline for three berths, proximity to existing natural gas pipeline systems, and,
of course, availability); it identified six potential alternative sites across Texas, Louisiana,
and Mississippi; and it evaluated them.
The Corps evaluated those same six sites in its memorandum and rejected each as
a viable alternative. Petitioners do not challenge any of the reasoning or conclusions as to
those six sites. Nor do they suggest that the Corps’s alternatives analysis was inadequate
for any reason other than its failure to determine that Alternative Site 6 was not the
LEDPA.
13
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cally present any analysis of alternatives, it thoroughly described the location
and nature of the project. The notice stated that the facility would be “on a
790-acre site located in Calcasieu Parish, Louisiana,” that it would be “situ-
ated along the west bank of the Calcasieu River, between mile markers 22 and
23,” and that it would be located in four watersheds, each identified by name
and hydrologic unit code. The notice even attached drawings showing the
project’s placement vis-à-vis the watersheds. It also described the project, its
environmental impact, and Driftwood’s proposed mitigation strategy.
Alternative Site 6 was located less than two miles northeast of the pro-
posed site. Petitioners do not even attempt to explain how the information
provided in the public notice was so vague or deficient as to preclude any
possibility of putting the Corps on notice of Alternative Site 6. Even if it were
unreasonable to expect petitioners to mention Alternative Site 6 specifically,
nothing in the comment by Healthy Gulf’s predecessor adverted to any sites,
collections of sites, or even general areas as potential alternatives, despite
recognizing that an alternatives analysis would both be necessary and need to
include alternative locations. Nor did the organization request a public hear-
ing to address any uncertainty. See 33 U.S.C. § 1344(a). The comment said
only that the organization “request[s] an adequate alternatives analysis in
response to [the] letter.” That is precisely what petitioners received in the
Corps’s memorandum, which addressed six alternative sites spanning three
states. Petitioners oppugn none of the Corps’s analysis of any of those alter-
native sites.
In response, petitioners marshal Delaware Riverkeeper Network v.
United States Army Corps of Engineers, 869 F.3d 148 (3d Cir. 2017), for the
proposition that the administrative timeline justifies Teague’s late com-
ments. There, the petitioners objected to a CWA permit because the Corps
allegedly had failed to examine an alternative infrastructural system for an
14
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interstate pipeline project.15 The alternative was presented in the initial
application for a CWA permit and also was addressed in the FERC-produced
EIS. Id. at 155–56. Nevertheless, the Third Circuit concluded that “the
Corps’ process made it impracticable for [the petitioner] to lodge its
objections with the Corps” because “FERC did not publicly release its
Environmental Assessment until . . . after the expiration of the Corps’ com-
ment period,” so “[a]ny deficiencies with the Environmental Assessment for
purposes of the [CWA] . . . could not have been addressed to the Corps by
comment.” Id.
The case is inapposite for several reasons. Alternative Site 6 was not
mentioned in Driftwood’s application, nor was it raised at any point, by
anyone in any way, before the close of the comment period. Likewise, the
existence of Alternative Site 6 as an option was not unforeseeable but for
FERC’s draft EIS, nor do petitioners seriously claim it was. Finally, the
Corps does not contend that petitioners had to object to Alternative Site 6 in
their public comment to the FERC-produced EIS, unlike in Delaware
Riverkeeper Network. See 869 F.3d at 155–56. Instead, the Corps’s objection
is that, in their comment to the Corps about the need to consider alternative
sites, petitioners did not raise Alternative Site 6. In sum, the administrative
timeline did not so prevent petitioners from putting the Corps on sufficient
notice that it should consider Alternative Site 6 as to excuse their forfeiture.
Petitioners offer a second basis for excusing their forfeiture and ask us
to credit the untimely Alternative Site 6 comment because of the “obvious-
_____________________
15
Explained reductively, the proposed system—pipeline “looping”—involved
laying sections of pipes in parallel to existing sections of pipes and emptying into them to
maximize the retention of natural gas traveling through the pipes. The alternative was
“compression,” i.e., using turbines to increase the pressure and flow rate of gas at given
points along the pipe system. 869 F.3d at 151–52, 151 n.2.
15
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flaw” exception, which applies where some deficiency in agency reasoning
“might be so obvious that there is no need for a commentator to point [it] out
specifically in order to preserve its ability to challenge a proposed action.”
Pub. Citizen, 541 U.S. at 765.
Whatever the specific standard for “obviousness” may be, petitioners
fail to meet it. Their first justification for the obviousness of Alternative
Site 6 is that FERC addressed it in Section 3.5.1.1 of the EIS. True. But the
reason that FERC discussed Alternative Site 6 in detail in the final EIS was,
as it said, that “[a] comment on the draft EIS recommended an analysis” of
it. Petitioners’ second justification is Teague’s comments and their content.
But neither Teague’s nor petitioners’ unsubstantiated proclamations that
Alternative Site 6 was “obvious” make it so, even assuming that its pur-
ported obviousness meant that omitting discussion of it was an “obvious
flaw.”
In other words, a federal agency routinely responded to a public com-
ment as part of the notice-and-comment process. That development is
(hopefully) uncontroversial for any competent administrative agency. We
are thus left with petitioners’ contradictory contentions that the failure to
consider Alternative Site 6 was both such an obvious flaw that it did not need
to be raised and so indiscernible that petitioners should be considered incap-
able of having raised it.
The petitioners’ position fails. Under the obvious-flaw exception, the
question is whether the flaw is so evident that there is no need for it to be
pointed out at all during the public comment period. See Shrimpers, 56 F.4th
at 998–99. Petitioners offer nothing more than their conclusory contention
that Alternative Site 6 was an “obvious” alternative. That is in no way suffi-
cient to demonstrate that the “flaw” of not considering Alternative Site 6
was so obvious that the Corps should have analyzed the site despite the
16
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No. 22-60397
absence of any comment adverting to it during public comment period.
Finally, petitioners attempt to excuse the forfeiture by invoking the
“independent knowledge” exception, which some circuits have recognized.
Those that do acknowledge the exception apply it where an agency had
“independent knowledge of the very issue” that a petitioner is raising in
challenge to the agency action. ’Ilio’ulaokalani Coal. v. Rumsfeld, 464 F.3d
1083, 1093 (9th Cir. 2006)16; see also Del. Riverkeeper Network, 869 F.3d
at 156.
This circuit has not embraced the exception.17 We adhere to our pre-
cedent and decline to recognize a freestanding independent-knowledge
exception.18
Even if we did, however, it would be inappropriate to apply it here.
The public comment window opened in March 2018 and lasted for twenty
days. The untimely comments about Alternative Site 6 were submitted
months later, and they were directed to FERC, not the Corps. The agency
therefore did not acquire independent knowledge of Alternative Site 6 before
the close of the comment period. Applying the exception would undermine
the purpose of the Corps’s public comment period by allowing the public to
take advantage of other agencies’ later public comment periods. Though the
_____________________
16
The Ninth Circuit has combined the obvious-flaw and independent-knowledge
inquiries: “This court has interpreted the ‘so obvious’ standard as requiring that the
agency have independent knowledge of the issues that concern petitioners.” Barnes v. U.S.
Dep’t of Transp., 655 F.3d 1124, 1132 (9th Cir. 2011).
17
See, e.g., Shrimpers, 56 F.4th at 997–99 (analyzing the “obvious flaw” exception
but not mentioning the independent-knowledge exception).
18
We therefore pretermit discussion of whether independent knowledge is or can
be a requirement of the obvious-flaw exception. We do not reach the issue because, as we
have explained, any flaw in the Corps’s issuance of the permit and accompanying memo-
randum was not obvious.
17
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No. 22-60397
Corps did collaborate with FERC, it was responsible for reaching its own
decision, through its own process, on whether the project complied with the
Guidelines.
It would also create the risk of arbitrary line-drawing as to what the
right cutoff is—does independent knowledge acquired one day before the
scheduled agency action impose a burden on the agency? One month? And
those concerns are not hypothetical: The Corps viewed Teague’s emails dir-
ected specifically to it—which focused on contamination, not alternatives—
as “way outside of [its] Public Comment period and close to [its] permit
decision” on the project. In light of the existence of public comment periods,
we have no interest in adjudicating how “close” is too “close” in the context
of untimely comments. We therefore see no reason here for deviating from
our general requirement that a party “rais[e] the alternative in the comments
addressed to the agency” during the relevant public comment period. See id.
at 998; see also Pub. Citizen, 541 U.S. at 764–65.19
_____________________
19
Petitioners also suggest that the Corps’s “incorporation” of the EIS into its
memorandum required it to factor Alternative Site 6 into its LEDPA analysis. The memo-
randum did acknowledge that the EIS “include[d] the alternatives analysis required under
NEPA.” It also stated that the information in the memorandum’s alternatives analysis was
“consistent with the information provided in the []EIS.”
As the parties all agree, alternatives analyses under NEPA are “substantively dif-
ferent” from those under the Guidelines, which require determining the LEDPA. Del.
Riverkeeper Network, 869 F.3d at 156; see also 40 C.F.R. § 230.10(a)(4). And the inquiry
and range of alternatives considered is not always co-extensive. The applicable regulation
notes that “the analysis of alternatives required for NEPA environmental documents . . .
will in most cases provide the information for the evaluation of alternatives under these
Guidelines.” 40 C.F.R. § 230.10(a)(4). But it also adds a caveat: “On occasion, these
NEPA documents may address a broader range of alternatives than required to be consid-
ered under this paragraph . . . .” Id.
That is the case here—petitioners do not contend that the Corps had an obligation
to analyze Alternative Site 6 for any reason other than the fact that Teague alerted FERC
to its existence during the public comment period on the draft EIS. And although both
18
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No. 22-60397
In sum, petitioners did not timely alert the Corps to Alternative Site 6;
as a result, they are unable to challenge the permit issuance on that ground.
B.
Petitioners claim that the Corps violated the regulatory hierarchy for
types of compensatory mitigation outlined in 33 C.F.R. § 332.3. Specifically,
the Corps allowed Driftwood to compensate in part using permittee-
responsible mitigation (the beneficial use of the dredged material) instead of
entirely through preferred methods. Petitioners also contend that even if the
Corps were allowed to deviate from the hierarchy, it failed to demonstrate
cause to do so here.
That argument has no merit. The relevant regulation requires the
Corps (through the responsible district engineer) to consider compensatory
mitigation options “in the order presented” by the regulation. 33 C.F.R.
§ 332.3(b)(1). But the Corps has the authority to “override” the regulatory
preference “where appropriate, [such] as . . . where . . . a permittee-
responsible project will restore an outstanding resource based on rigorous
scientific and technical analysis.” See id. § 332.3(b)(2).
That understanding is reflected in Atchafalaya Basinkeeper v. U.S.
Army Corps of Eng’rs, 894 F.3d 692 (5th Cir. 2018), on which petitioners
heavily rely. Contra petitioners’ characterization, Atchafalaya Basinkeeper
did not hold the Corps hostage to a completely inflexible regulatory hierar-
chy. Instead, and in the context of the relevant regulation, the court
reiterated that the regulatory hierarchy was indeed a hierarchy but that the
_____________________
FERC and the Corps evaluated some of the same alternative locations, FERC evaluated
some that the Corps did not, and vice-versa. Alternative Site 4 in the Corps’s memoran-
dum, for example, was not assessed in the EIS. Undoubtedly, the Corps had the option of
evaluating Alternative Site 6—doing so would have saved us much ink. But it did not have
any obligation to do that.
19
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No. 22-60397
Corps could depart from it where appropriate and when justified by reasoning
documented in the administrative record. See id. at 700–01 (describing when
the Corps may deviate from the hierarchy established in § 332.3(e)(1)–(2),
which addresses in-kind versus out-of-kind mitigation). The regulations
applicable here likewise expressly allow the Corps to override the hierarchy.
Petitioners’ focus on the Corps’s failure to establish that the higher-priority
mitigation options were “unavailable” is therefore a red herring—there is no
such requirement either in the regulation or in our caselaw.
The parties do not dispute that the mitigation strategy here contra-
venes the default hierarchy. The plan proposed by Driftwood and considered
by the Corps involves offsetting 134.3 acres of wetland impacts by purchasing
mitigation bank credits and offsetting the remaining 185.0 acres of wetlands
impacts through the beneficial use of dredged material, a form of permittee-
responsible mitigation. Under the default hierarchy, mitigation bank credits
would be used to offset the entire detrimental impact of the project. See
33 C.F.R. § 332.3(b)(2). The question is therefore whether the Corps exam-
ined the relevant data and provided a satisfactory explanation. State Farm,
463 U.S. at 43. We bear in mind that we are most deferential to the Corps
where its decision is based on an “evaluation of complex scientific data
within its technical expertise.” Shrimpers, 56 F.4th at 1001 (quoting Sierra
Club v. EPA, 939 F.3d 649, 680 (5th Cir. 2019)). The Corps’s approval of
the mitigation strategy here easily withstands our scrutiny.
There were two primary justifications for departing from the default
mitigation hierarchy. The first was that Driftwood’s proposed beneficial-use
plan was expected to restore around 650 acres of marsh habitat at the thresh-
old and up to 3,009 acres of coastal marsh habitat in the longer term—far
exceeding the restoration required to offset the requisite 185 acres. So Drift-
wood’s permittee-responsible mitigation was “expected to outweigh the tra-
ditional mitigation bank credit program.” The Corps contemplates using its
20
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No. 22-60397
discretion in precisely those circumstances: “[D]istrict engineers have the
discretion to modify the hierarchy in order to approve the use of the envir-
onmentally preferable compensatory mitigation.” Compensatory Mitigation
for Losses of Aquatic Resources, 73 Fed. Reg. 19594, 19614 (Apr. 10, 2008).
The second was that the proposed plan complied with state law and
furthered Louisiana’s stated interests in restoring and protecting coastal wet-
lands. The Corps pointed in particular to the goals of the Louisiana Master
Plan for Coastal Protection and Restoration and the Chenier Plain Coastal
Protection and Restoration Authority.
The record reveals thorough analysis and cooperation by the Corps
and other agencies, and a lucid explanation of why the Corps was permitting
a departure from the default hierarchy. The approval process spanned sev-
eral years and involved detailed analysis by (and often the cooperation of)
FERC, the Corps, the EPA, the National Marine Fisheries Services, the
Louisiana Department of Wildlife and Fisheries, and LDEQ, among others.
The administrative record is over 24,000 pages and provides more than
enough insight into the agencies’ deliberations, as we discuss below.
Given that we look at the Corps’s decision not as environmental scien-
tists but “as a reviewing court exercising our narrowly defined duty of hold-
ing agencies to certain minimal standards of rationality,”20 we have no diffi-
culty upholding the Corps’s decision about Driftwood’s mitigation strategy.
We nevertheless respond to petitioners’ barrage of wholly meritless
objections, assuming, counterfactually, that they were all properly and timely
brought to the relevant agency’s attention. First, petitioners point to an error
in the Corps’s memorandum, where the Corps incorrectly noted that the
_____________________
20
City of Shoreacres, 420 F.3d at 445 (quoting Avoyelles Sportsmen’s League, Inc. v.
Marsh, 715 F.2d 897, 905 (5th Cir. 1983)).
21
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No. 22-60397
mitigation strategy did not “deviate” from the regulatory hierarchy.21 That
error, however, does not annihilate the numerous findings and explanations
in the record, including the Corps’s conclusion that the approved mitigation
scheme was “expected to outweigh the traditional mitigation bank credit
program.” Based on the record as a whole, the Corps evidently understood
that it was departing from the default hierarchy, and we can easily discern its
reasoning despite the error.22
Petitioners next attack the Corps’s use of the LRAM, urging that any
reliance thereon would be a post-hoc rationalization and, besides, that the
LRAM “cannot justify a deviation [it] neither recognized nor evaluated.”
The notion is strange. The Corps used LRAM to determine the required
compensatory mitigation amounts throughout its entire analysis. Petitioners
are correct that the LRAM does not purport to choose among alternatives.
That’s where the Corps comes in: It takes LRAM data and uses those data—
along with its expertise, the governing principles, and project-specific facts—
to decide whether to approve particular mitigation strategies. The notion of
making data-informed decisions is hardly outré. At any rate, the use of the
LRAM already has this court’s imprimatur.23
We proceed to petitioners’ concern that the dredged material deposi-
tion areas will not immediately—or perhaps ever—result in highly function-
_____________________
21
The Corps’s briefing acknowledges the error.
22
See Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 658 (2007)
(noting that a lack of perfect clarity does not preclude upholding an agency action).
23
See Atchafalaya Basinkeeper, 894 F.3d at 700–01 (“In general, the Supreme Court
has held that the use of scientific methodology like that contained in the LRAM is subject
to particular judicial deference.” (citing Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 377–
78 (1989))). Petitioners’ attempt to distinguish Atchafalaya Basinkeeper on the basis that
the LRAM was used in that case to follow rather than override the default regulatory hier-
archy defies both basic notions of logic and the reliability of data.
22
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No. 22-60397
ing wetlands. Petitioners are correct that “all compensatory mitigation pro-
jects should provide a high level of functional capacity.” 73 Fed. Reg.
at 19601. But functionality is the touchstone of the relevant analysis here,
which is why the Corps is “moving towards greater reliance on functional
and condition assessments to quantify credits and debits.” Id. That means
that the Corps may account for “uncertainty of success or temporal losses”
when determining how much mitigation permittees must provide. Id.
at 19602; see also id. at 19601 (“Replacement ratios may be used to adjust for
the relative quality of impact sites and mitigation projects . . . .”). In simpler
terms, if a proposed mitigation strategy will take longer or is less likely to
succeed, the Corps may require the permittee to restore more acres than it is
affecting to account for those uncertainties. Likewise, if there is an impact to
a particularly high-value area of 50 acres, the permittee may have to restore
more than 50 acres to compensate if the restored area is of lesser value.
That is exactly what occurred here. The LRAM is a functional assess-
ment, and the concerns raised by petitioners were already incorporated into
the Corps’s decisionmaking. Those concerns—and the corresponding func-
tional analyses—explain why Driftwood was required under the permit to
restore approximately (at the threshold) 650 acres of marshland to offset 185
acres of wetland impacts. Petitioners offer no rejoinder.
Petitioners’ related concerns about accountability and performance
standards are unavailing. The beneficial-use plan includes numerous perfor-
mance criteria and standards related to target elevation, turbidity, tidal
exchange, and vegetative plantings. It also has express provisions concerning
monitoring.
Moreover, the permit includes a special condition holding Driftwood
accountable for the “successful completion and maintenance” of the plan,
including “marsh re-establishment/creation.” Any failure, deficiency, or
23
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No. 22-60397
temporal lag may lead to additional compensatory mitigation to offset the
impact. Furthermore, the permittee-responsible mitigation must occur
“simultaneously/concurrently” with any “facility related wetland impacts.”
Driftwood is also on the hook for the success of its mitigation efforts for at
least twenty years.24
We reach the penultimate of petitioners’ criticisms. They urge that
the Corps failed to address concerns from the Louisiana Department of Wild-
life and Fisheries (“the Department”) regarding the hydrologic connectivity
(roughly, the presence of water pathways allowing the movement of organ-
isms and matter from one place to another) in certain areas affected by the
project. But they also acknowledge that the Department withdrew its con-
cerns. Although petitioners intimate that the withdrawal was the result of a
nefarious “pressure” campaign by Driftwood and the Corps, the record
reveals that Driftwood merely addressed the issues, whereupon the Depart-
ment acknowledged that its “previous concerns . . . [h]ad been alleviated.”25
The Department then concurred in the proposed mitigation plan and
“offered no objection to permit issuance.” Unsurprisingly, we decline to
suggest that we know better than the Department whether its technical con-
cerns were adequately addressed in the cooperative, multi-year permitting
process.
_____________________
24
We mention only in passing the requirements that Driftwood provide data, draw-
ings, photographs, and occasional reports to the Corps and that it must meet vegetative
coverage and exotic or invasive-species standards.
25
Specifically, the Department considered its concerns alleviated by “the creation
of a surplus of estuarine wetlands and the tidal connections proposed” in a particular part
of the beneficial-use area. In essence, Driftwood’s beneficial-use plan more than offset the
potential impact that engendered the Department’s concerns. Driftwood also noted that
one of the Department’s proposed solutions involved damaging the structural integrity of
an embankment “that combat[ted] severe erosion” and had been approved for construc-
tion by five federal agencies (plus Louisiana).
24
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No. 22-60397
Finally, petitioners posit that the Corps ignored concerns that “Drift-
wood’s proposal to dredge materials adjacent to a contaminated site[26]
risk[s] spreading the contamination to the dredged material disposition
areas.” The record says the opposite. Both FERC and the Corps mentioned
those concerns to Driftwood early in the review process. Those conversa-
tions persisted for over a year,27 and the Corps, cooperating with FERC, even
provided input to Driftwood on the contamination issue.
The ongoing discussion about potentially contaminated dredged
material culminated in a thorough analysis in the EIS, which concluded that
the project “would not mobilize existing contaminated soils.” That deter-
mination was based on comparing the boundaries of the contaminated sec-
tions of the site with Driftwood’s intended dredging locations as well as Drift-
wood’s representations that it would not dredge in an area that had not been
tested sufficiently.
Moreover, both the Corps and the Louisiana Department of Natural
Resources (which issued Driftwood a Coastal Use permit) imposed condi-
tions on Driftwood to ensure that it did not dredge and use contaminated
material. The Corps’s permit requires that Driftwood place only material
“free of contaminants to the best of [Driftwood]’s knowledge.” Similarly,
the Coastal Use permit provides that “[a]ll fill material shall be clean and free
of contaminants.” Driftwood also put forward both an “unanticipated dis-
_____________________
26
The site in question housed “historical ship building, repair, and barge-cleaning
operations.”
27
Petitioners note that a Corps employee stated in a September 2017 email that the
Corps was “punting” to FERC certain concerns (raised by Teague) about contamination.
Although true, that is irrelevant. For one, the record shows that the Corps was involved in
addressing potential contamination before and after that email, as we discuss infra. And,
at any rate, that email was limited to the specific contamination issues raised by Teague in
an untimely email to the Corps, not the contamination question generally.
25
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No. 22-60397
coveries” plan and a risk management plan to address potential encounters
with contaminated material during dredging. LDEQ did not object to those
plans, and FERC likewise viewed the plans (along with Driftwood’s express
commitments) as sufficient to alleviate concerns about “mobiliz[ing] existing
contaminated soils.”28
In summary, despite petitioners’ numerous objections to the Corps’s
reasoning and conclusions, we uphold its decision to depart from the default
regulatory hierarchy regarding compensatory mitigation. The Corps more
than adequately explained its decision.
* * * * *
The petition for review of the permit issued by the U.S. Army Corps
of Engineers to Driftwood is DENIED. The Corps’s motion for judicial
notice is DENIED as moot in light of our lack of reliance on any of the
documents sought to be noticed.
_____________________
28
Petitioners also contend that the EIS used the wrong standard in evaluating con-
tamination. But the EIS expressly addressed public comments discussing what standard it
should use and found that the intent of the suggested standard—the EPA’s Inland Testing
Manual—was satisfied. Moreover, the Corps and Driftwood communicated about the two
standards and found them reconcilable.
26