HEALTHY GULF; SIERRA CLUB v. 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
No. 22-60397
United States Court of Appeals for the Fifth Circuit
September 6, 2023
Lyle W. Cayce, Clerk
Petitioners,
versus
Respondents.
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 connect to existing interstate pipeline systems; the terminal would be located on the Calcasieu River in Louisiana. 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 Commission (“FERC“) authority over the approval process for LNG terminals and pipelines.
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“).
One of Corps‘s roles is ensuring compliance with the Clean Water Act (“CWA“), whiсh generally prohibits “the discharge of any pollutant“—including dredged spoil, rock, and sand—into the “navigable waters” of the United States.1
Some areas of water—labeled “special aquatic sites“—have significant ecological characteristics and are generally important to the environmental health of a region‘s ecosystem.
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.”
The governing principle of the Guidelines is that, in general, “no discharge of dredged or fill material” is permitted where it would “cause or contribute to significant degradation of the waters of the United States.”
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[,] so long as the alternative does not have other significant adverse environmental consequences.”
Alternatives are practicable if they (i) are “available” and (ii) are feasible after considering “cost, existing technology, and logistics in light of overall project purposes.”
Second, minimization: Permittees must take “appropriate and practicable steps” to minimize potential deleterious consequences of the discharge on the aquatic ecosystem.
Third, compensatory mitigation: “Appropriate and practicable compensatory mitigation is required for unavoidable adverse impacts which remain” after adequate avoidance and mitigation. 55 Fed. Reg. at 9212; see also
The next-preferred type is in-lieu fee program credits. Id.
At the bottom of the hierarchy is permittee-responsible mitigation. See id.
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.
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 project‘s environmental impact, inevitable adverse environmental effects, and alternatives.
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.
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 facility. 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). Driftwood expects the facility to produce approximatеly 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
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 “vegetation community of special concern.” Moreover, Alternative Site 6 would require two miles of additional pipeline. The site therefore “did not provide 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 permanent 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, ultimately 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-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 comments.
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
In May 2019, the Corps published a memorandum detailing its environmental evaluation. That memorandum incorporated by reference particular 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 proposed location was the least environmentally damaging practicable alternative (“LEDPA“).
The memorandum also addressed Driftwood‘s proposed compensatory mitigation. The Corps used the Louisiana Wetland Rapid Assessment Method (“LRAM“) to evaluate the impact of Driftwood‘s project and compensation. 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 wetland 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 Administrative 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 accordance with law.”
III.
On two grounds, the petitioners assail the Corps‘s decision to issue Driftwood a permit.
First, the Corps “incorporat[ed]” the portion оf FERC‘s EIS analyzing 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 justify 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
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 proposed site,” so it “did not evaluate it further.” On the other hand, the Cоrps‘s memorandum did not discuss Alternative Site 6 at all. According to petitioners, even if the Corps had incorporated the entire discussion of alternative 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 assessing 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 principles 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)). And in the case of alternatives, parties generally must raise
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 comments directed specifically to the Corps did not mention Alternative Site 6 or, indeed, any alternatives at all. Instead, he focused on the pоtential contamination of the dredged material. Later, in October 2018, he emailed officials 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.”
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 Alternative 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 unsuccеssfully attempt to excuse the tardiness on several grounds. The first is that the Corps made it functionally impossible for petitioners to raise their point about Alternative Site 6 during the public comment period. As petitioners correctly note, the Corps‘s joint public notice did not mention any particular alternatives (or indeed any analysis of alternatives).14 That omission, according to petitioners, made it impracticable for Teague (or petitioners, or anyone else) to
Petitioners overreach. Although the joint public notice did not specifi-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 “situated 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 proposed 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 hearing to address any uncertainty. See
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 comments. There, the petitioners objected to a CWA permit because the Corps allegedly had failed to examine аn alternative infrastructural system for an 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’ comment 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 unforeseeablе but for FERC‘s draft EIS, nor do petitioners
Petitioners offer a second basis for excusing their forfeiture and ask us to credit the untimely Alternative Site 6 comment because of the “obvious-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.
Whatevеr 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 purported obviousness meant that omitting discussion of it was an “obvious flaw.”
In other words, a federal agency routinely responded to a public comment 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 оbvious flaw that it did not need to be raised and so indiscernible that petitioners should be considered incapable 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 sufficient to demonstrate that the “flaw” of not considering Alternative Site 6 was so obvious that the Corps should have analyzed the site despite the 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 knowlеdge 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
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 Corps did collaborate with FERC, it was responsible for reaching its own decision, through its own procеss, 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 directed 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 In sum, petitioners did
B.
Petitioners claim that the Corps violated the regulatory hierarchy for types of compensatory mitigation outlined in
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.
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 hierarchy. Instead, and in the context of the relevant regulation, the court reiterated that the regulatory hierarchy was indeed a hierarchy but that the 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
The parties do not dispute that the mitigation strategy here contravenes 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
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 threshold and up to 3,009 acres of coastal marsh habitat in the longer term—far exceeding the restoration
The second was that the proposed plan complied with state law and furthered Lоuisiana‘s stated interests in restoring and protecting coastal wetlands. 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 several 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 scientists but “as a reviewing court exercising our narrowly defined duty of holding agencies to certain minimal standards of rationality,”20 we have no difficulty 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 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 сan 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
We proceed to petitioners’ concern that the dredged material deposition areas will nоt immediately—or perhaps ever—result in highly function-ing wetlands. Petitioners are correct that “all compensatory mitigation projects 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 particulаrly 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 assessment, and the concerns raised by petitioners were already incorporated into the Corps‘s decisionmaking. Those concerns—and the corresponding functional 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 performance 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 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 Wildlife and Fisheries (“the Department“) regarding the hydrologic connectivity (roughly, the presence of water pathways allowing the
Finally, petitioners posit that the Corps ignored concerns that “Driftwood‘s proposal to dredge materials adjacent to a contaminated site26 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 conversations 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 determination was based on comparing the boundaries of the contaminated sections of the site with Driftwood‘s intended dredging locations as well as Driftwood‘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 conditions оn 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-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
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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.