676 F. App'x 245
5th Cir.2017Background
- Rollover Pass is a man-made channel connecting East Bay (part of Galveston Bay) to the Gulf; it increased erosion and became a popular fishing spot.
- After Hurricane Ike (2008), Texas funded closure of the pass; the Texas General Land Office (GLO) studied impacts and sought a Clean Water Act §404 permit from the U.S. Army Corps of Engineers (Corps).
- The Corps adopted the GLO study in an Environmental Assessment (EA), concluded a Finding of No Significant Impact, and issued the §404 permit in 2012 to close the pass.
- Two local organizations (Gulf Coast Rod, Reel, and Gun Club, and Gilchrist Community Association) sued under the Administrative Procedure Act claiming NEPA violations, alleging (1) inadequate cumulative-impact/salinity analysis and (2) inadequate consideration of practicable alternatives.
- The district court granted summary judgment for the Corps; plaintiffs appealed. The Fifth Circuit reviewed de novo under the APA’s arbitrary-and-capricious standard and affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of cumulative-impact/salinity analysis under NEPA | Corps used seasonal-averaged salinity model and omitted effects of the Needmore Diversion; plaintiffs argued a daily model (TxBLEND) and inclusion of Needmore would show greater salinity impacts | Corps reasonably chose seasonal models (less subject to episodic anomalies, based on 70+ years of data), explained cost/time tradeoffs, expanded modeled area in response to comments, and concluded Needmore would operate intermittently and not appreciably affect salinity | AFFIRMED — Corps’ choice of model and consideration of freshwater inflows were not arbitrary or capricious; EA adequately assessed cumulative salinity impacts |
| Adequacy of consideration of practicable alternatives under NEPA | Corps failed to consider practicable alternatives such as jetties or constructing a gate at the pass mouth | Corps relied on GLO’s prior rejection of jetties (explaining adverse sediment effects) and considered/rejected multiple alternatives; gate was not clearly presented to agency and was not argued below; similar measures (weir modification) were considered and rejected as ineffective | AFFIRMED — Corps sufficiently considered and rejected alternatives; plaintiffs waived or failed to raise gate alternative before the agency/district court, and EA satisfied NEPA’s alternatives requirement |
Key Cases Cited
- Amrollah v. Napolitano, 710 F.3d 568 (5th Cir. 2013) (standard of review for summary judgment reviewed de novo)
- City of Shoreacres v. Waterworth, 420 F.3d 440 (5th Cir. 2005) (deferential review of agency NEPA/CWA decisions)
- La. Crawfish Producers Ass’n–W. v. Rowan, 463 F.3d 352 (5th Cir. 2006) (agency action upheld unless arbitrary or capricious; NEPA cumulative-impact and alternatives discussion requirements)
- Sabine River Auth. v. U.S. Dep’t of the Interior, 951 F.2d 669 (5th Cir. 1992) (agency may choose between conflicting technical evidence)
- Markle Interests, LLC v. U.S. Fish & Wildlife Serv., 827 F.3d 452 (5th Cir. 2016) (EA/FONSI ends further NEPA obligations if no significant impact found)
- Gulf Restoration Network v. U.S. Dep’t of Transp., 452 F.3d 362 (5th Cir. 2006) (courts must review agency decisions under a deferential ‘‘minimal rationality’’ standard)
- Girling Health Care, Inc. v. Shalala, 85 F.3d 211 (5th Cir. 1996) (agency is factfinder in judicial review of agency decisions)
- Hayward v. U.S. Dep’t of Labor, 536 F.3d 376 (5th Cir. 2008) (court’s role is not to reweigh evidence but to ensure agency considered relevant factors)
- Delta Found., Inc. v. United States, 303 F.3d 551 (5th Cir. 2002) (agency decision must be based on relevant factors)
- Miss. River Basin Alliance v. Westphal, 230 F.3d 170 (5th Cir. 2000) (upholding agency consideration of alternatives rejected at preliminary stages)
- Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752 (2004) (parties must raise issues to agency to allow meaningful consideration)