Case 2:21-cv-00161 Document 1 Filed on 08/03/21 in TXSD Page 1 of 48
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`CIVIL ACTION NO. 21-161
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`UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF TEXAS
`CORPUS CHRISTI DIVISION
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`INDIGENOUS PEOPLES OF THE
`COASTAL BEND; KARANKAWA
`KADLA TRIBE OF THE TEXAS
`GULF COAST; and INGLESIDE ON
`THE BAY COASTAL WATCH
`ASSOCIATION,
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`Plaintiffs,
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`
`v.
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`UNITED STATES ARMY CORPS OF
`ENGINEERS; LIEUTENANT
`GENERAL SCOTT A. SPELLMON in
`his official capacity; BRIGADIER
`GENERAL CHRISTOPHER G. BECK
`in his official capacity; and COLONEL
`TIMOTHY R. VAIL in his official
`capacity,
`
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`Defendants.
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`PLAINTIFFS’ ORIGINAL COMPLAINT
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`Come Now Indigenous Peoples of the Coastal Bend, Karankawa Kadla Tribe of
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`the Texas Gulf Coast, and Ingleside on the Bay Coastal Watch Association (collectively,
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`“Plaintiffs”), challenging decisions by the United States Army Corps of Engineers
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`(“Corps of Engineers” or “Corps”) in connection with the proposed expansion of Moda
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`Ingleside Oil Terminal in San Patricio County, Texas. For support, Plaintiffs offer the
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`following:
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`1
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`I.
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`INTRODUCTION
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`1.
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`This is a civil action brought by Indigenous Peoples of the Coastal Bend,
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`the Karankawa Kadla Tribe of the Texas Gulf Coast, and Ingleside on the Bay Coastal
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`Watch Association for declaratory, injunctive, and other relief pursuant to the provisions
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`of the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706; the Clean Water Act
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`(“CWA”), 33 U.S.C. § 1344; and the National Environmental Policy Act (“NEPA”), 42
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`U.S.C. § 4321 et seq., and its implementing regulations.
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`2.
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`This litigation arises from the decision by the United States Army Corps of
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`Engineers to issue a Clean Water Act Section 404 permit to Moda Ingleside Oil
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`Terminal, LLC for the proposed expansion of the Moda Ingleside Energy Center (“Moda
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`Terminal”) in the Corpus Christi Ship Channel, in San Patricio County, Texas.
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`3.
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`The Moda Terminal is located near the Gulf of Mexico, where the Corpus
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`Christi Ship Channel meets the La Quinta Ship Channel, immediately to the east of City
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`of Ingleside on the Bay. The Moda Terminal is the largest export terminal in the United
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`States by volume by a considerable margin, with exports averaging about 780 thousand
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`barrels per day over the 14-month period since January 2020, or about 24% of total U.S.
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`crude oil exports.1 The proposed westward expansion of the Moda Terminal would add
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`five additional berths for oil tankers and barges, and essentially double its vessel
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`capacity.
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`1 Housely Carr, Leaders Of The Pack - Three Gulf Coast Crude Oil Export Terminals Winning Battle for
`Barrels, RBN Energy LLC (Mar. 2, 2021), https://rbnenergy.com/leaders-of-the-pack-three-gulf-coast-
`crude-oil-export-terminals-winning-battle-for-barrels (“[The Enterprise Hydrocarbon Terminal in
`Houston] is in the runner-up spot, with volumes averaging more than 420 Mb/d . . . or 13% of the total.”)
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`4.
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`On April 28, 2021, the Corps granted Moda’s request for a Clean Water
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`Act Section 404 permit, authorizing Moda to dredge approximately 3.9 million cubic
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`yards of material out of the Corpus Christi Bay in order to increase its terminal’s
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`footprint—the overall dredge footprint will be approximately 43 acres.
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`5.
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`The construction and operation of the Moda Terminal expansion will have
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`significant impacts on the environment, the surrounding community, and the public
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`interest, as detailed more fully below. Surveys conducted by Moda, for instance,
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`demonstrate this project would have a significant impact on approximately 9.81 acres of
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`diverse seagrasses and estuarine wetlands.
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`6.
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`Plaintiffs Indigenous Peoples of the Coastal Bend, the Karankawa Kadla
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`Tribe of the Texas Gulf Coast, and Ingleside on the Bay Coastal Watch Association have
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`filed this Complaint because the Corps’ issuance of the 404 Permit to Moda authorizing
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`the proposed terminal expansion violates the CWA, NEPA, and the federal APA in
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`critical respects. These violations directly harm Plaintiffs and the members of the plaintiff
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`organizations.
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`II.
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`JURISDICTION
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`7.
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`Plaintiffs state these claims under the Administrative Procedure Act, 5
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`U.S.C. §§ 701-706. This Court has jurisdiction over the claims set forth in this
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`Complaint pursuant to 28 U.S.C. § 1331 (federal question) and 1346 (United States as
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`defendant). The relief sought is authorized by 28 U.S.C. §§ 2201(a) and 2202, and 5
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`U.S.C. § 706.
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`III. VENUE
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`8.
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`Venue is proper in this Court pursuant to 28 U.S.C. §§ 1391(b) and (e),
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`because the property where the proposed Moda Terminal expansion is to be located,
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`which is the subject of the action, is situated within the Corpus Christi Division of the
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`Southern District of Texas.
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`A.
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`Plaintiffs
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`IV. PARTIES
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`9.
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`Plaintiff Indigenous Peoples of the Coastal Bend (“Indigenous Peoples”)
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`is a nonprofit, membership-based organization with approximately 50 members.
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`Indigenous Peoples is based in Corpus Christi. As a part of its mission, Indigenous
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`Peoples works to preserve and protect the history and the natural and cultural resources of
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`indigenous people who have lived and continue to live in the geographical region known
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`as the Texas Coastal Bend, particularly in Aransas, Bee, Brooks, Jim Wells, Kenedy,
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`Kleberg, Nueces, Refugio, and San Patricio Counties. Indigenous Peoples is also
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`dedicated to educating and advocating on behalf of its members and local indigenous
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`people on issues related to protection of the natural environment and places of cultural
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`significance, indigenous rights and justice, and indigenous culture and education.
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`Indigenous Peoples’ members are descendants of various indigenous groups from the
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`Texas Coastal Bend area, including the Karankawa Kadla tribe.
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`10.
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`Plaintiff Karankawa Kadla Tribe of the Texas Gulf Coast (“Karankawa
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`Kadla tribe”) is a tribe whose members are indigenous to the Texas Coastal Bend. The
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`Karankawa Kadla tribe has approximately 300 identified members at this time, and
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`though many more exist, it is not possible to know how many, because the tribe’s
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`ancestors were disbanded with other tribes throughout the region and there was an
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`intentional effort to see the history systematically erased.
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`11. Members of the Indigenous Peoples and of the Karankawa Kadla tribe
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`travel regularly to Ingleside on the Bay in San Patricio County, Texas to enjoy the natural
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`beauty of the land and the ocean, to observe wildlife in the area, and to find spiritual joy
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`and fulfillment through their connections to the land, water, wildlife, and their ancestors
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`who lived in the area. Members of the Indigenous Peoples and of the Karankawa Kadla
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`tribe consider the land and adjacent waters where the proposed Moda Terminal expansion
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`would be built as sacred, because of its link to the members’ ancestors, who lived in the
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`area for hundreds of years.
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`12.
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`The McGloin’s Bluff Site, for example, and the surrounding area is well
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`known as the former site of a large Karankawa encampment. The encampment was where
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`ceremonial dances and other significant rituals took place. Tens of thousands of artifacts
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`have been found in and around the McGloin’s Bluff Site, including pottery fragments,
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`arrow points, tools, and fish and animal bones. The size of the Karankawa encampment
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`in the area was substantially larger than the small area (Archaeological Site 41SP11) that
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`has been studied at the McGloin’s Bluff Site. There is reason to believe that there are
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`more artifacts to be found in the area.
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`13.
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`Though the eastern part of Moda’s property, where the existing Moda
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`facility sits, was also part of the Karankawa encampment, that area has been significantly
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`developed already. The western 432 acres of the Moda property around McGloin’s Bluff,
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`including the coastline and bay, has not been developed. This undeveloped space between
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`the Moda facility and Ingleside on the Bay is the only remaining undeveloped area in this
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`part of the Bay. This undeveloped space represents the last remaining vestige of the
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`landscape and ecosystems that once occupied the area.
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`14.
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`Indigenous Peoples and the Karankawa Kadla tribe both have members
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`who regularly visit property near the McGloin Bluff Site in order to observe the natural
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`beauty of the undisturbed landscape, shoreline, and water that is the location of the
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`proposed Moda expansion. Indigenous Peoples’ members and the Karankawa Kadla
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`tribe’s members use and enjoy these areas to observe the natural beauty of the land, the
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`water, and the wildlife, and members intend to continue to use and enjoy these areas in
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`the near future. Members are culturally and spiritually connected to the McGloin Bluff
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`Site, the surrounding land, coastline, and coastal water, given what they know of its
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`history and that it currently remains undeveloped.
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`15.
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`Indigenous Peoples’ members and the Karankawa Kadla tribe’s members
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`are concerned that the dredging of the Corpus Christi Bay will harm the natural
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`ecosystem and destroy habitat that attracts wildlife. They are concerned that the dredging
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`will destroy ancestral artifacts and thwart their efforts to learn more about their people’s
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`history and culture, and that the expansion of the Moda Terminal will destroy the
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`McGloin’s Bluff site and the surrounding area. The increase in ship traffic and the
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`associated increase in noise, industrial activity, and pollution will destroy their ability to
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`pray and find spiritual joy and fulfillment in observing their ancestral lands and waters.
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`16.
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`For example, one member of Indigenous Peoples regularly travels to
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`Ingleside on the Bay with other members of the organization to observe the natural
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`beauty of the land of McGloin’s Bluff and the nearby coastline. Specifically, she
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`participates in spiritual ceremonies and traditional drum circles in the open area
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`immediately adjacent to Moda’s fenceline and on the nearby beach. From time to time,
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`she has also taken a boat to the barrier island immediately off the coast of Ingleside on
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`the Bay. From both places, she enjoys the view of the McGloin Bluff area and watching
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`the sparkling waters of the ocean and wildlife moving around the area, particularly
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`dolphins and hawks, which are considered signs of approval from her ancestors. She
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`intends to visit the area again every month, but she worries that the Moda expansion and
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`the increased ship traffic and noise will threaten the natural beauty of the area and
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`diminish her ability to use the area for spiritual ceremonies and drumming and harm her
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`ability to find spiritual joy and meaning at the site of her ancestors’ land.
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`17. At least one member of the Karankawa Kadla tribe visits the area near
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`McGloin’s Bluff regularly. He has visited the area at least once per year since he was a
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`child to pray with other members of the tribe. The area has changed and been developed
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`since he was young, and he now visits the open area and beach directly west of the Moda
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`fence line. In the past year, he has gone to this specific area to pray approximately four
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`times, and has also gone on boat trips to the barrier island with members of the
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`Indigenous Peoples. He has plans to continue to visit the area at least as regularly, if not
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`more so, so that he can observe the land and water in the same area where his ancestors
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`did and sit in silent prayer to them. He is concerned that the Moda expansion would harm
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`his ability to find a peaceful place to pray, and that the increase in ship traffic, noise, and
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`industrial activity would harm his ability to pray in silence. He is also concerned that the
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`environmental damage that would be caused by the Moda expansion and increased
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`industrial activity in the water would harm the marine life, the animals, the plants, and the
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`quality of the water and diminish his enjoyment of visiting the sacred ancestral site.
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`18.
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`Plaintiff Ingleside on the Bay Coastal Watch Association, Inc.
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`(“IOBCWA”) is a Texas-based nonprofit membership organization, based in Ingleside on
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`the Bay, San Patricio County, Texas.
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`19.
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`Founded in 2019, IOBCWA’s mission is “to preserve our community’s
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`high quality of life by developing strategic partnerships, fostering innovative approaches,
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`and pursuing funding designed to position IOB [Ingleside on the Bay] as a resilient
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`coastal community able to mitigate the negative effects of rising sea levels, larger and
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`more frequent ship traffic, and rapid industrialization.”
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`20.
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`IOBCWA currently has over 130 members. Among its members is Patrick
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`Nye, who co-founded the organization. Mr. Nye owns property and resides in Ingleside
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`on the Bay, a small city on the north shore of the Corpus Christi Bay. The Moda
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`Terminal property line is 810 feet from his house. Mr. Nye has built his life and his
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`family’s life around recreation on this land and the waters of Corpus Christi Bay. He
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`boats, kayaks, fishes, and crabs on the waters of the Bay. He experiences constant
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`industrial noise from the Moda facility, light pollution at night, and odors from emissions.
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`He observes frequent plumes of silt which come from docking operations, impairing the
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`water quality in front of his house. The failure to meet the requirements of federal statutes
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`protecting natural resources and the public directly harms Mr. Nye.
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`21.
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`Plaintiffs and their members have an interest in ensuring Moda’s activities
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`do not further harm the environment, pursuant to the Clean Water Act, and that a
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`comprehensive environmental analysis, pursuant to NEPA is prepared. Plaintiff
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`IOBCWA participated in the comment process for the Moda Terminal expansion, and
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`brought the issues in this matter to the attention of the Corps of Engineers.
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`22.
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`Plaintiffs and their members are suffering, and will continue to suffer,
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`irreparable injury as a result of the Corps’ failure to comply with the Clean Water Act
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`and NEPA. The Corps’ approval of the Section 404 Permit is based on an inadequate
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`environmental review and the Corps’ failure to follow requisite procedures deprives
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`Plaintiffs and their members of information to which they are entitled under NEPA.
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`B.
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`Defendants
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`23. Defendant United States Army Corps of Engineers is an agency within
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`the executive branch of the federal government. It is the lead agency charged with
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`permitting the discharge of dredged or fill material into waters of the United States under
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`the Clean Water Act. The Corps is responsible for ensuring compliance with various
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`statutes, including the National Environmental Policy Act, for its permitting and
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`authorization decisions.
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`24.
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`The Corps is headquartered in Washington, D.C. and has district offices all
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`over the country. The Corps may be served at 441 G Street NW, Washington, D.C.
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`20314.
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`25. Defendant Lieutenant General Scott A. Spellmon is the Chief of
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`Engineers and Commanding General of the United States Army Corps of Engineers and
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`is designated to act for the Secretary of the Army. Plaintiffs bring this action against Lt.
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`Gen. Spellmon in his official capacity only. He is the officer personally responsible for
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`compliance with any injunction ordered upon the Corps that this Court issues.
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`26. Defendant Brigadier General Christopher G. Beck is the Commander of
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`the Southwestern Division of the United States Army Corps of Engineers. Plaintiffs bring
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`this action against Brig. Gen. Beck in his official capacity only. The Southwestern
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`Division office is located at 1100 Commerce Street, Suite 831, Dallas, Texas 75242.
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`27. Defendant Colonel Timothy R. Vail is the Commander of the Galveston
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`District of the United States Army Corps of Engineers. Plaintiffs bring this action against
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`Col. Vail in his official capacity only. The Galveston District office is located at 2000
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`Fort Point Road, Galveston, Texas 77550.
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`V.
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`RELEVANT LEGAL AUTHORITY
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`A.
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`National Environmental Policy Act
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`28. NEPA, 42 U.S.C. §§ 4321–4370m, is our “basic national charter for
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`protection of the environment.” 40 C.F.R. § 1500.1(a) (2019).2 It makes environmental
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`2 After the Permit application was submitted, the Council on Environmental Quality (CEQ) revised its
`regulations implementing NEPA. See Update to the Regulations Implementing the Procedural Provisions
`of the National Environmental Policy Act, 85 Fed. Reg. 43,304 (July 16, 2020). This Complaint cites to
`the prior regulations, which were in effect during most of the environmental review process for the Moda
`Terminal expansion, including both of the Corps’ public comment periods, and therefore apply here. The
`new regulations are also already subject to four lawsuits. See Compl. for Declaratory and Injunctive
`Relief, California v. Council on Env’t Quality, No. 3:20-cv-06057 (N.D. Cal. Aug. 28, 2020); Compl.,
`Env’t Just. Health All. v. Council on Env’t Quality, No. 1:20-cv-06143 (S.D.N.Y. Aug. 6, 2020); Compl.,
`Wild Va. v. Council on Env’t Quality, No. 3:20-cv-00045 (W.D. Va. July 29, 2020); Compl. for
`Declaratory and Injunctive Relief, Alaska Cmty. Action on Toxics v. Council on Env’t Quality, No. 3:20-
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`protection part of the mandate of every federal agency, 42 U.S.C. § 4331, and requires
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`federal agencies to take environmental considerations and “any irreversible and
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`irretrievable commitments of resources” into account in their decisionmaking “to the
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`fullest extent possible,” id. § 4332; 40 C.F.R. § 1500.2 (2019).
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`29. NEPA seeks to ensure that federal agencies take a “hard look” at
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`environmental consequences before taking a major action. Friends of the Boundary
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`Waters Wilderness v. Dombeck, 164 F.3d 1115, 1128 (8th Cir. 1999). One of NEPA’s
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`primary purposes is to ensure that an agency, “in reaching its decision, will have
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`available, and will carefully consider, detailed information concerning significant
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`environmental impacts.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332,
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`349 (1989). NEPA also “guarantees that the relevant information [concerning
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`environmental impacts] will be made available to the larger audience,” including the
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`general public, “that may also play a role in both the decisionmaking process and the
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`implementation of that decision.” Id.
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`30. NEPA requires federal agencies to fully disclose in “every recommendation
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`or report on proposals for . . . major Federal actions significantly affecting the quality of
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`the human environment, a detailed statement” on, among other
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`things, “the
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`environmental impact of the proposed action” and “any adverse environmental effects
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`which cannot be avoided should the proposal be implemented.” 42 U.S.C. § 4332(C).
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`This statement is referred to as an Environmental Impact Statement (“EIS”).
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`cv-05199 (N.D. Cal. July 29, 2020). Moreover, without express statutory authority to the contrary, rules
`do not apply retroactively. Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (1988).
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`31.
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`The EIS must describe (1) the “environmental impact of the proposed
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`action,” (2) any “adverse environmental effects which cannot be avoided should the
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`proposal be implemented,” (3) any “alternatives to the proposed action,” and (4) any
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`“irreversible or irretrievable commitment of resources which would be involved in the
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`proposed action should it be implemented.” Id.
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`32. NEPA also requires agencies to use high quality, accurate scientific
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`information and to ensure the scientific integrity of the analysis. 40 C.F.R. §§ 1500.1(b)
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`(2019), 1502.24 (2019).
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`33. Major federal actions include “new and continuing activities, including
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`projects and programs entirely or partly financed, assisted, conducted, regulated, or
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`approved by federal agencies,” 40 C.F.R. § 1508.18(a) (2019), and “[a]pproval of
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`specific projects, such as construction or management activities located in a defined
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`geographic area. Projects include actions approved by permit or other regulatory decision
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`as well as federal and federally assisted activities.” Id. § 1508.18(b)(4) (2019). The word
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`“major” “reinforces but does not have a meaning independent of significantly.” Id. §
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`1508.18 (2019).
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`34.
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`If it is unclear whether impacts are significant enough to warrant an EIS, a
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`federal agency may prepare an “environmental assessment” (“EA”) to assist in making
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`that determination. Id. §§ 1501.3 (2019), 1508.9 (2019). If the agency determines that no
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`EIS is required, it must document that finding in a “finding of no significant impact”
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`(“FONSI”). Id. § 1508.13 (2019).
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`35. When a project cannot go forward without a permit, then the environmental
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`impacts of the entire project must be reviewed under NEPA. White Tanks Concerned
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`Citizens, Inc. v. Strock, 563 F.3d 1033, 1039–40 (9th Cir. 2009); see also 33 C.F.R. Pt.
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`325, App. B §§ 7(b)(1), 7(b)(2)(A).
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`36.
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`If the agency concludes in an EA that a project may have significant
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`impacts on the environment, then an EIS must be prepared. 40 C.F.R. § 1501.4 (2019).
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`37.
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`To determine whether a proposed action may significantly affect the
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`environment, the agency must consider both the context (i.e., the import of the action on
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`society, the regions or localities affected, and the interests affected by the action) and
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`intensity (i.e., the “severity of impact”) of the proposed action, including whether the
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`project will take place in “ecologically critical areas” and whether the project will affect
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`endangered species. Id. § 1508.27 (2019).
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`38. With respect to the latter, the regulations lay out ten factors that are to be
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`considered. Examples of these criteria include the degree to which: the proposed action
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`affects public health or safety; the possible effects on the human environment are likely
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`to be highly controversial; the possible effects on the human environment are highly
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`uncertain or involve unique or unknown risks; the action may establish a precedent for
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`future actions with significant effects or represents a decision in principle about a future
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`consideration; the action is related to other actions with individually insignificant but
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`cumulatively significant impacts; and the action may adversely affect an endangered or
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`threatened species or its habitat. Id.
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`39. An EIS must include a “range of actions, alternatives, and impacts.” 40
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`C.F.R. § 1508.25 (2019). For example, an agency must consider direct and indirect
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`impacts, or effects, of an action when determining the scope of an EIS. Id. §
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`1508.25(c)(1)–(2) (2019). The direct effects of an action are those effects “which are
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`caused by the action and occur at the same time and place.” Id. § 1508.8(a) (2019). The
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`indirect effects of an action are those effects “which are caused by the action and are later
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`in time or farther removed in distance, but are still reasonably foreseeable.” Id. §
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`1508.8(b) (2019).
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`40. An agency also must analyze and address the cumulative impacts of a
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`proposed project. Kleppe v. Sierra Club, 427 U.S. 390, 410 (1976); 40 C.F.R. §§ 1508.7
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`(2019), 1508.25(c)(3) (2019). Cumulative impacts are the result of any past, present, or
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`reasonably foreseeable future actions, regardless of who takes them. Such effects “can
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`result from individually minor but collectively significant actions taking place over a
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`period of time.” Id. § 1508.7 (2019).
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`41.
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`“[A] meaningful cumulative impact analysis must identify (1) the area in
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`which the effects of the proposed project will be felt; (2) the impacts that are expected in
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`that area from the proposed project; (3) other actions—past, present, and proposed, and
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`reasonably foreseeable—that have had or are expected to have impacts in the same area;
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`(4) the impacts or expected impacts from these other actions; and (5) the overall impact
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`that can be expected if the individual impacts are allowed to accumulate.” Del.
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`Riverkeeper Network v. Fed. Energy Regul. Comm’n, 753 F.3d 1304, 1319 (D.C. Cir.
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`2014) (quoting Grand Canyon Trust v. F.A.A., 290 F.3d 339, 345 (D.C. Cir. 2002)).
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`Case 2:21-cv-00161 Document 1 Filed on 08/03/21 in TXSD Page 15 of 48
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`42. Cumulative impact analyses are insufficient when they discuss only the
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`direct effects of the project at issue on a small area and merely contemplate other projects
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`but have no quantified assessment of their combined impacts. Bark v. U.S. Forest Serv.,
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`958 F.3d 865, 872 (9th Cir. 2020).
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`43.
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`“The impact of greenhouse gas emissions on climate change is precisely the
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`kind of cumulative impacts analysis that NEPA requires agencies to conduct.” Ctr. for
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`Biological Diversity v. Nat’l Highway Traffic Safety Admin., 508 F.3d 508, 550 (9th Cir.
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`2007).
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`44. NEPA calls for a quantification of the incremental impacts that the
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`proposed project’s emissions will have on climate change or on the environment more
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`generally in light of other past, present, and reasonably foreseeable actions. See Ctr. for
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`Biological Diversity v. Nat’l Highway Traffic Safety Admin., 538 F.3d 1172, 1216 (9th
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`Cir. 2008). NEPA requires analysis of the “actual environmental effects resulting from
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`those emissions.” Id.
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`45. NEPA requires consideration of separate components of a single project in
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`a single NEPA review. 40 C.F.R. § 1508.25 (2019). NEPA regulations state that
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`connected actions should be considered in a single EIS, defining them as actions that
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`“cannot or will not proceed unless other actions are taken previously or simultaneously,”
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`and “are interdependent parts of a larger action and depend on the larger action for their
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`justification.” Id.
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`Case 2:21-cv-00161 Document 1 Filed on 08/03/21 in TXSD Page 16 of 48
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`46. NEPA requires federal agencies to analyze “both the probability of a given
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`harm occurring and the consequences of that harm if it does occur.” New York v. Nuclear
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`Regul. Comm’n, 681 F.3d 471, 482 (D.C. Cir. 2012).
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`47. Agencies cannot avoid their responsibility to consider future effects by
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`claiming they are uncertain, because NEPA requires some element of predictive
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`behavior. N. Plains Res. Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067, 1078–79
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`(9th Cir. 2011); see also 40 C.F.R. § 1502.22 (2019).
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`48.
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`Federal courts have found that NEPA requires analysis of the risk that an
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`oil spill will occur and an assessment of the potential impacts of a spill on particular
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`resources and into Corps’ jurisdictional waterways. See, e.g., Ocean Advocates v. U.S.
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`Army Corps of Eng’rs, 402 F.3d 846, 867–68 (9th Cir. 2005) (Corps was required to
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`analyze effects of increased tanker traffic, and attendant risks of oil spills, before issuing
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`Section 404 permit for dock extension); Sierra Club v. Sigler, 695 F.2d 957, 968–75 (5th
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`Cir. 1983) (Corps violated NEPA in issuing a permit for a dredging project by failing to
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`analyze worst-case scenario of oil tanker spill); Standing Rock Sioux Tribe v. U.S. Army
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`Corps of Eng’rs, 255 F. Supp. 3d 101, 133–34 (D.D.C. 2017) (EA inadequate because it
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`did not describe the potential impacts of an oil spill on specific tribal hunting and fishing
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`rights).
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`49.
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`In addition, NEPA mandates that agencies analyze cultural resource
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`impacts in environmental impact statements. 40 C.F.R. §§ 1502.16(g) (2019), 1508.8
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`(2019).
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`Case 2:21-cv-00161 Document 1 Filed on 08/03/21 in TXSD Page 17 of 48
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`50.
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`“NEPA procedures must insure that environmental information is available
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`to public officials and citizens before decisions are made and before actions are taken.”
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`Id. § 1500.1(b) (2019). Agencies are required to make environmental documents,
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`including environmental assessments and findings of no significant impact, available to
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`the public. Id. §§ 1501.4(e)(1) (2019), 1506.6(b) (2019), 1508.10 (2019).
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`51. An agency’s failure to include and analyze information that is important,
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`significant, or essential renders an EA and FONSI inadequate. See id. § 1500.1 (2019).
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`52.
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`The Corps’ regulations incorporate these requirements by reference. 33
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`C.F.R. Pt. 325, App. B § 2.
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`53.
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`The Corps’ regulations explain that the scope of a NEPA analysis includes
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`the impacts of the specific activity requiring a Corps permit and “those portions of the
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`entire project over which the district engineer has sufficient control and responsibility to
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`warrant Federal review.” Id., App. B § 7(b)(1).
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`54.
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`The Corps’ regulations provide that the NEPA analysis should include
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`direct, indirect, and cumulative impacts. Id., App. B § 7(b)(3).
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`55.
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`The Corps’ regulations further state: “In all cases, the scope of analysis
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`used for analyzing both impacts and alternatives should be the same scope of analysis
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`used for analyzing the benefits of a proposal.” Id.
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`B.
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`The Clean Water Act
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`
`
`56. Congress enacted the Clean Water Act “to restore and maintain the
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`chemical, physical, and biological integrity of the Nation’s waters.” CWA § 101(a), 33
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`U.S.C. § 1251(a).
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`Case 2:21-cv-00161 Document 1 Filed on 08/03/21 in TXSD Page 18 of 48
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`57.
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`The Clean Water Act also established, as part of the Corps’ water resources
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`development program, the long-term goal “to increase the quality and quantity of the
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`Nation’s wetlands.” 33 U.S.C. § 2317(a)(1).
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`58.
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`To accomplish these goals, the Clean Water Act prohibits the discharge of
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`dredged and fill materials into “waters of the United States” absent a permit issued by the
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`Corps under CWA § 404. Unless statutorily exempt, all discharges of dredged or fill
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`material into waters of the United States must be authorized under a permit issued by the
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`Corps. Id. §§ 1344(a)–(e).
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`59.
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`The Corps issues individual permits under CWA § 404(a) on a case-by-case
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`basis after taking “all appropriate and practicable steps to avoid and minimize adverse
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`impacts to waters of the United States.” 40 C.F.R. § 230.91(c)(2); see 33 U.S.C. §
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`1344(a). Such permits are issued after a review involving, among other things, site-
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`specific documentation and analysis of waters and wetlands and potential effects to them,
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`public interest analysis, and a formal determination pursuant to the statutory and
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`regulatory criteria. See 33 C.F.R. § 322.3 and Parts 323, 325.
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`60. Under the Clean Water Act, there are strict substantive limits on approving
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`projects that degrade water quality or harm aquatic uses.
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`61.
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`First, the Corps may not issue a permit under Section 404 if there is a
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`“practicable alternative” to the project with less impact on the aquatic ecosystem. 40
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`C.F.R. § 230.10(a). The Corps is required to conduct an alternatives analysis. The process
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`for undertaking this analysis is set out in the guidelines implementing CWA § 404. The
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`Corps must define the project’s “overall project purposes.” Id.
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`Case 2:21-cv-00161 Document 1 Filed on 08/03/21 in TXSD Page 19 of 48
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`62.
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`The Corps cannot arbitrarily restrict the range of viable alternatives by
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`adopting an overly narrow definition of the project’s purposes. Friends of the Santa
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`Clara River v. U.S. Army Corps of Eng’rs, 887 F.3d 906, 912 (9th Cir. 2018); Del.
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`Riverkeeper Network v. U.S. Army Corps of Eng’rs, 869 F.3d 148, 157 (3d Cir. 2017).
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`63. Cost alone is not sufficient to show that an alternative is not practicable.
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`Del. Riverkeeper Network, 869 F.3d at 159–60