ORDER RE MOTIONS FOR SUMMARY JUDGMENT
Plaintiffs Sam Kunaknana, et al. (“Ku-naknana Plaintiffs”) and the Center for Biological Diversity (“CBD”) filed separate lawsuits challenging Defendant U.S. Army Corps of Engineers’
Challenges to agency decisions brought in this federal district court are resolved through summary judgment motions.
For the reasons discussed herein, CBD’s action will be dismissed because CBD lacks standing. The Kunaknana Plaintiffs’ Motion for Summary Judgment will be granted on their NEPA claim to the extent they assert that the Corps failed to provide a reasoned explanation in the record for its decision not to conduct a supplemental NEPA analysis. This Order does not determine whether a supplemental NEPA analysis is required, nor does it determine the appropriate remedy for the Corps’ NEPA violation. This Order also does not resolve the Kunaknana Plaintiffs’ CWA claim. Instead, the Court requests further briefing from the parties as to how this case should proceed at this juncture.
STATUTORY FRAMEWORK, FACTUAL BACKGROUND, AND PROCEDURAL HISTORY
I. Statutory and Regulatory Framework.
A. Section 404 of the Clean Water Act.
Congress enacted the CWA “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”
Section 404 of the CWA governs permitting for the discharge of dredged or fill material into navigable waters.
B. National Environmental Policy Act.
NEPA declares “a national policy ... to promote efforts which will prevent or eliminate damage to the environment.”
NEPA requires federal agencies to prepare an environmental impact statement (“EIS”) for all “major Federal actions significantly affecting the quality of the human environment.”
In view of NEPA’s purpose to ensure fully informed decision-making, “an agency that has prepared [or adopted] an EIS cannot simply rest on the original document. The agency must be alert to new information that may alter the results of its original environmental analysis, and continue to take a ‘hard look at the environmental effects of [its] planned action ....”’
II. Factual Background.
A. The NPR-A, the Colville River Delta, and the City of Nuiqsut.
Established in 1923, the NPR-A on Alaska’s North Slope is “the largest single unit of public land in the United States and covers 23.6 million acres. It is also an important habitat for vegetation, fish, and wildlife.”
In the eastern half of the NPR-A, the Colville River flows east along the southern boundary and then north along the eastern boundary, eventually making its way through a large delta before emptying into the Beaufort Sea.
The City of Nuiqsut is one of only two permanent population centers within the Colville River Delta.
B. The Alpine Oil Field and the 2004 Alpine Satellites EIS.
In the winter of 1994-1995, ARCO Alaska and its partners discovered the Alpine oil field in the Colville River Delta.
In 2001, ARCO’s successor, ConocoPhil-lips, announced the discovery of additional oil in the area to the west of Alpine, including areas within the NPR-A.
The NEPA review process culminated in 2004 with the publication of the 2,500-page Alpine Satellite Development Plan Final EIS (“Alpine Satellites EIS”).
Three of the EIS alternatives are relevant to this appeal. Alternative A includes construction of gravel roads and .bridges “connect[ing] CD-4 through CD-7 to the existing Alpine Field road.”
In December 2004, the Corps issued a Section 404 permit to ConocoPhillips for CD-3 and CD-4 based on the Alpine Satellites EIS.
C. The CD-5 Permitting Process.
i. 2005 Permit Application.
In September 2005, ConocoPhillips submitted an application to the Corps for a Section 404 permit to develop CD-5.
ii Memorandum of Agreement Between Kuukpik and ConocoPhillips and 2009 Permit Application.
In December 2008, Kuukpik and Cono-coPhillips entered into a Memorandum of Agreement (“MOA”) in which ConocoPhil-lips agreed to certain terms designed to ameliorate the impacts of the CD-5 project on the people of Nuiqsut.
In May 2009, the Corps issued a public notice regarding ConocoPhillips’s resubmitted permit application for CD-5.
Hi. 2010 Record of Decision and Administrative Appeal.
In February 2010, the Corps issued a Record of Decision (“2010 ROD”) denying ConocoPhillips’s 2009 CD-5 permit application based on the* Corps’ determination that ConocoPhillips had failed to demonstrate that its revised proposal was the LEDPA.
ConocoPhillips administratively appealed the 2010 ROD on numerous grounds.
In a decision dated December 2, 2010, a Corps Review Officer determined that “[m]any of the stated reasons in Conoco-Phillips’s [request for appeal] are without merit, however ... several aspects of the [request for appeal] have merit,” including certain of ConocoPhillips’s arguments concerning the practicability of the HDD design.
iv. 2011 Record, of Decision.
Following the administrative remand, ConocoPhillips and other interested parties provided the Corps with considerable amounts of additional information on both the bridge and HDD alternatives.
In December 2011, the Corps issued a Record of Decision (“2011 ROD”) granting ConocoPhillips’s 2009 permit application as modified. The Corps found, based on the additional information submitted following the administrative remand, that Conoco-Phillips’s .bridge proposal as modified was the LEDPA, instead of the HDD approach.
III. Procedural History.
On February 27, 2013, the Kunaknana Plaintiffs filed their lawsuit challenging the Corps’ decision to issue ConocoPhillips the Section 404 permit for CD-5.
• Kuukpik owns the surface estate at the proposed CD-5 location and is the village corporation for Nuiqsut;92
• “ASRC holds the subsurface estate in the area of the proposed ‘CD-5’production pad, and anticipates receiving production royalties once oil production from that project begins;” 93
• The North Slope Borough “is the recognized unit of local government spanning the North Slope of Alaska;”94 and
• The State of Alaska receives taxes and royalties on oil and gas production and actively participated in the CD-5 permitting process.95
On August 14, 2013, the Court issued.an Order Establishing Joint Case Management and a Case Schedule, which provided for the joint management of the Kunakna-na Plaintiffs’ and CBD’s actions and set a briefing schedule.
On February 5, 2014, after the motions had been fully briefed, the Kunaknana Plaintiffs filed a Motion for Temporary Restraining Order and Preliminary Injunction.
DISCUSSION
I. Jurisdiction.
A. Subject Matter Jurisdiction.
This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331.
Under Article III of the Constitution, “[t]he jurisdiction of the federal courts is limited to ‘cases’ and ‘controversies.’ ”
[T]o satisfy Article Ill’s standing requirements, a plaintiff must show (1) it has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.105
The Court explained that in environmental cases, “[t]he relevant showing for purposes of Article III standing ... is not injury to the environment but injury to the plaintiff.”
Plaintiffs bear the burden of establishing their standing to bring suit,
i. Center for Biological Diversity.
CBD filed its lawsuit on behalf of its members.
An association has standing to bring suit on behalf its members when [1] its members would otherwise have standing to sue in their own right, [2] the interests at stake are germane to the organization’s purpose, and [3] neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.112
In CBD’s case, only the first prong of this test is at issue. To demonstrate that at least one of its members would have standing to sue in his or her own right, CBD included as exhibits to its summary judgment motion the declarations of three of its members — Marybeth Holleman, Rick Steiner, and Jack Lentfer.
In her declaration, Marybeth Holleman states that she lives in Anchorage, Alaska.
I am worried that the currently proposed CD-5 project poses the risk of an oil spill into the Colville River, which could flow into the Arctic Ocean. If there were to be an oil spill, my interests in floating the Colville River, and, more broadly, in viewing and appreciating the wildlife of the Colville Delta and the Arctic Ocean, would be harmed.121
In his declaration, Richard Steiner states that he lives in Anchorage, Alas
In his declaration, Jack Lentfer states that he lives in Homer, Alaska and is “retired from working as a wildlife biologist in Alaska for over 46 years.”
ConocoPhillips asserts that none of these declarations demonstrates past use of the CD-5 project area “accompanied by credible evidence of planned future use,” and, therefore, “CBD has failed to demonstrate an injury [in] fact and its case must
In Lujan, plaintiffs Defenders of Wildlife and other environmental organizations (“Defenders”) filed suit against the Secretary of the Interior to challenge a regulation interpreting Section 7(a)(2) of the Endangered Species Act (“ESA”). The challenged regulation limited the requirement that federal agencies consult with the Secretary of the Interior to ensure their actions do not jeopardize endangered species to apply only to “actions taken in the United States or on the high seas” and not to actions taken in foreign nations.
The Supreme Court held Defenders lacked standing because the affidavits contained no facts demonstrating that its members were likely to suffer actual or imminent injury.
That the women “had visited” the areas of the projects before the projects commenced proves nothing.... And the affiants’ profession of an “inten[t]” to return to the places they had visited before — where they will presumably, this time, be deprived of the opportunity to observe animals of the endangered species — is simply not enough. Such “some day” intentions — without any description of concrete plans, or indeed even any specification of when the some day will be — do not support a finding of the “actual or imminent” injury that our cases require.142
The Court also rejected Defenders’ argument that “any person who uses any part of a ‘contiguous ecosystem’ adversely affected by a funded activity has standing even if the activity is located a great distance away.”
The Ninth Circuit reached a similar conclusion in Wilderness Society, Inc. v. Rey.
The Ninth Circuit held that the member’s declaration was “insufficient to support standing.”
Here, the Court agrees with Conoco-Phillips that under Lujan and Wilderness Society, CBD’s members have not demonstrated the requisite injury in fact necessary to confer standing on CBD. As ConocoPhillips points out, neither Ms. Holleman nor Mr. Steiner claims to have ever visited the CD-5 project area.
Mr. Lentfer’s declaration establishes that he has traveled extensively in the Colville River Delta in the past. However, it appears the closest he ever came to the CD-5 project area was in 1964, when he stayed with a family that lived 13 miles downstream from the CD-5 pad and Ni-gliq crossing.
In its reply brief, CBD responds to the lack-of-standing argument by asserting:
The area in which CD-5 will be built is only a small part of the area affected by the Corps’ decision. One of the Center’s primary concerns is that the Corps’ decision to permit an above-ground pipeline and bridge increases the risk of a catastrophic oil spill into the Colville River, which would be carried downstream into the Arctic Ocean. Thus, the Center’s declarants recreational and aesthetic use and enjoyment of the greater Colville River Delta and Arctic Ocean go directly to the heart of the injury; when the zone of impact is widespread, so too are the injuries.159
Thus, CBD attempts to characterize the CD-5 project as affecting a very large geographic area, such that its members’ connections to Arctic Alaska are sufficient to confer standing. However, CBD has cited no authority for the proposition that an environmental plaintiffs standing can be based on connections to the area that could potentially be affected by an agency decision, i.e., in the event of some catastrophe such as an oil spill, as opposed to the area that will with certainty be affected.
CBD also asserts that “the Center’s de-clarants’ interests in affected species ... bear directly on the question of injury in fact, regardless of whether the declarants have viewed those species in the construction area or whether they have viewed those same animals in other areas affected by the project.”
This litigation involves a challenge to an agency decision permitting a single project with a 58.5-acre footprint.
ii. Kunaknana Plaintiffs.
The Kunaknana Plaintiffs are individuals who live in Nuiqsut,
II. Standard of Review of Agency Action.
The Kunaknana Plaintiffs assert that the Corps’ issuance of the wetlands permit for the CD-5 project violated NEPA and Section 404 of the CWA. They seek judicial review of the Corps’ decision under the Administrative Procedure Act (“APA”),
The Supreme Court has held that “[t]he scope of review under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment for that of the agency.”
“In conducting [its] review, [a court] may look only to the administrative record to determine whether the agency has articulated a rational basis for its decision.”
III. Kunaknana Plaintiffs’ Failure to Participate in the CD-5 Permitting Process.
ConocoPhillips asserts that the Kunaknana Plaintiffs’ claims should he dismissed because they did not participate in the CD-5 permitting process before the agency.
The Ninth Circuit “has declined to adopt ‘a broad rule which would require participation in agency proceedings as a condition precedent to seeking judicial review of an agency decision.’ ”
The Supreme Court discussed issue exhaustion in the context of a NEPA claim in Department of Transportation v. Public Citizen.
And yet, after articulating this holding, the Court added that “[ajdmittedly, the agency bears the primary responsibility to ensure that it complies with NEPA.”
For the foregoing reasons, the fact that the Kunaknana Plaintiffs did not participate in the administrative process for CD-5 does not preclude them from maintaining this lawsuit. However, for each issue they seek to raise here, it must be clear from the record that the Corps was aware of the issue. Whether that is the case will be discussed in the next section with respect to each of the issues underlying the Ku-naknana Plaintiffs’ NEPA claim.
The Kunaknana Plaintiffs’ first claim is that the Corps’ issuance of the Section 404 permit to ConocoPhillips violated NEPA. As discussed above, in the 2011 ROD granting ConocoPhillips a Section 404 permit for CD-5, the Corps adopted the 2004 Alpine Satellites EIS.
An agency is not required to prepare an SEIS every time there are changes to a project or new information comes to light.
Whether an SEIS is required “is a classic example of a factual dispute the resolution of which implicates substantial agency expertise.”
These concepts were applied by the Ninth Circuit in Friends of the Clearwater v. Dombeck.
The Ninth Circuit agreed with FOC, explaining:
There is no evidence in the record that, before the inception of this action, the Forest Service ever considered whether the seven new sensitive species designations ... were sufficiently significant to require preparation of an SEIS. When confronted with this important new information, it was incumbent on the Forest Service to evaluate the existing EIS to determine whether it required supplementation.214
The Ninth Circuit held “that the Forest Service’s failure to evaluate in a timely manner the need to supplement the original EIS in light of that new information violated NEPA.”
A. Changes to the CD-5 Project.
The Kunaknana Plaintiffs first assert that the Corps was required to conduct a supplemental NEPA analysis, or at least to make a reasoned determination whether supplementation was required, because changes have been made to the CD-5 project from what was analyzed in the 2004 Alpine Satellites EIS.
As examples of project changes that have occurred since 2004, the Kunaknana Plaintiffs point to the relocation of the CD-5 pad 1.3 miles west, the increase in the number of wells, the changed location of the Nigliq Channel bridge, the changed road alignment and increased road length, the increase in the number of bridges, the increased amount of fill, the increased pad size, and certain mitigation measures.
In the 2011 ROD, the Corps stated that it had determined that the project changes were not substantial enough to warrant preparation of an SEIS,
The Corps ... disagrees that Conoco-Phillips’s latest proposal is substantially different than that identified in the FEIS. ConocoPhillips’s current proposal is very similar to the Alternative F theme that was analyzed in the FEIS. Alternative F in the FEIS was identified as the lead agency’s (BLM) preferred alternative.222
Then, in response to comments from environmental groups, the Corps offered a somewhat different explanation for its decision not to prepare an SEIS to address project changes:
ConocoPhillips’s proposal is not substantially different than the alternatives analyzed in the FEIS. The determination has been made that the FEIS is still adequate and relevant for the evaluation of the CD-5 project at this time. Numerous alternatives and road alignments were analyzed in the FEIS including a road route along the southerly route that is currently proposed by Conoco-Phillips. Although there have been some changes to the locations and sizes of the drill pad the impacts that will result from the project are similar.223
The referenced alternative with a southerly road route appears to be Alternative C-1 in the Alpine Satellites EIS.
In its brief, ConocoPhillips offers a seven-page explanation for how the project changes “were all minor and of no meaningful environmental consequence, fall within the range of impacts previously considered or were included as mitigation measures undertaken to reduce impacts below levels identified in the EIS.”
B. New Information.
The Kunaknana Plaintiffs next assert that the Corps was required to conduct a supplemental NEPA analysis, or at least to make a reasoned decision whether supplementation was required, because new information has been generated since the 2004 Alpine Satellites EIS.
i Documents Cited in the 2011 ROD that Post-Date the 2004- Alpine Satellites EIS.
The Kunaknana Plaintiffs assert that the 2011 ROD “relies upon several post-Alpine Satellites EIS documents, reports, and studies that are all new information,” and that “there is no indication in the record that the Corps ever analyzed the significance of th[is] new information ... despite the Corps’ reliance on the documents in the decision-making process.”
In their briefing, the Kunaknana Plaintiffs list eleven posb-2004 documents cited in the 2011 ROD, including certain information provided by ConocoPhillips and other entities after the administrative remand of the 2010 permit decision.
In their briefing, the Corps and Conoco-Phillips assert that the Kunaknana Plaintiffs have failed to demonstrate that any of the post-2004 documents cited in the 2011 ROD contain significant new information
The Kunaknana Plaintiffs maintain that the Corps’ conclusory statement that there is no significant new information is at odds with the Corps’ express reliance on post>-2004 information in making its LEDPA determination.
ii. New Information About the Impacts of Climate Change on CD-5.
The 2004 Alpine Satellites EIS contains a short, general discussion of climate change.
Future climate changes could potentially affect a number of meteorological conditions in coastal regions such as the North Slope. These conditions include frequency and intensity of storms, storm surges, and flooding. Changes in weather patterns could potentially result in a greater frequency of stronger storms. Melting ice reserves, and subsequent changes in mean sea level, could potentially increase the frequency of storm surges of a given height. Rising river and sea levels from climate change could also result in increased frequency and intensity of flooding. Although there has been no evidence to correlate an increase in storm activity with climate change, studies continue to investigate the potential role that climate change may have on future meteorological conditions.249
The Kunaknana Plaintiffs assert that “[b]etween 2004 and 2011, a considerable body of science developed regarding the impacts of climate change on the Arctic,” but the Corps failed to make a reasoned determination of the significance of this information to CD-5, instead providing only “a handful of cursory statements about the risks from climate change.”
a. ConocoPhillips’s Motion to Strike Kunaknana Plaintiffs’ Extra-Record Summary Judgment Exhibits.
The bulk of the new information about the impacts of climate change that the Kunaknana Plaintiffs assert the Corps failed to consider is not in the agency record; instead, it is presented to the Court in the form of five publicly available reports concerning climate change attached as exhibits to the Kunaknana Plaintiffs’ summary judgment brief.
“Generally, judicial review of an agency decision [under the APA] is limited to the administrative record on which the agency based the challenged decision.”
b. Issue Exhaustion.
With respect to new information concerning climate change, the Corps makes an issue exhaustion argument. The Corps asserts that the Kunaknana Plaintiffs “fail to show that anyone ever contended that new climate change information required supplementation of the Alpine EIS.”
The Kunaknana Plaintiffs assert that “EPA alerted the Corps to post-2004 information pertaining to climate change and impacts to the Arctic and recommended that the Corps analyze the project in light of that new information.”
We remain particularly concerned about the potential adverse impacts to the regional surface hydrology within the Ni-gliq Channel and [Colville River Delta] that may be caused by the bridge and road especially during flood events. The Scenarios Network for Alaska Planning has predicted changes in temperature, precipitation, and season length (thaw to freeze up) using General Circulation models utilized by the Intergovernmental Panel on Climate Change for future climate scenarios. It is prudent to analyze this project in light of these predicted changes with respect to the potential for increased frequency of extreme events.261
The Kunaknana Plaintiffs also cite to a letter dated September 9, 2009 from EPA to the Corps.
In the 2011 ROD, the Corps discussed the ways that climate change may impact the CD-5 project:
All of the CD-5 alternatives could be affected by climate change in the form of increased global ambient temperature, increased snowfall, sea level rise, effects of hydrologic changes due to more rapid snowmelt and increased water levels during spring break up. Melting permafrost and thermokarsting could cause additional gravel fill requirements for all of the project alternatives.266
The Corps also provided a brief analysis of how climate change might affect each of the analyzed alternatives in the 2011 ROD.
“[T]here is no bright-line standard” for determining when an issue has been raised before an agency with clarity sufficient to allow a plaintiff to overcome the issue exhaustion bar.
Rather than resolve the issue exhaustion question at this time, the Court has decided that whether, and to what extent, the Corps should evaluate post-2004 climate change information is better determined after further briefing from the parties on the appropriate remedy for the Corps’ failure to adequately explain its decision not to prepare an SEIS for CD-5 to address changes to the project as well as new information relied upon in the 2011 ROD.
V. Claim 2: Violation of CWA.
To decide the Kunaknana Plaintiffs’ CWA claim at this time would be premature. NEPA procedures are designed to ensure the agency and the public have an opportunity to consider all of the relevant environmental information “before decisions are made and before actions are taken.”
VI. Remedy.
In its brief, ConocoPhillips requests that if the Court rules in favor of Plaintiffs on any of their claims, the Court allow the parties to provide additional briefing on what would be an appropriate remedy.
CONCLUSION
For the foregoing reasons, the Court hereby ORDERS as follows:
1. Center for Biological Diversity v. U.S. Army Corps of Engineers, et al, Case No. 3:13-cv-00095-SLG, is DISMISSED with prejudice because Plaintiff Center for Biological Diversity lacks Article III standing.
2. With respect to filings made in Ku-naknana, et al. v. U.S. Army Corps of Engineers, et al, Case No. 3:13-cv-00044, the Court ORDERS as follows:
a. The Center for Biological Diversity’s Motion for Summary Judgment at Docket 106 is DENIED as moot.272
b. ConocoPhillips’s Consolidated Motion to Strike Plaintiffs’ Extra-Record Summary Judgment Exhibits at Docket 126, and the joinders at Dockets 132, 133, and 134, are GRANTED.273 The Clerk of Court shall strike from the record Exhibit 5 to CBD’s Motion for Summary Judgment, filed at Docket 106-6, and Exhibits 1-5 to the Kunaknana Plaintiffs’ Motion for Summary Judgment, filed at Dockets 109-2— 109-7.
c. The Kunaknana Plaintiffs’ Motion for Summary Judgment at Docket 107 is GRANTED with respect to Plaintiffs’ NEPA claim as follows: the Corps’ determination that a Supplemental Environmental Impact Statement was unnecessary was arbitrary and capricious because the Corps failed to provide a reasoned explanation for that determination that addressed the changes to the CD-5 project since the 2004 Environmental Impact Statement and the new information the Corps relied upon in making its Least Environmentally Damaging Practicable Alternative determination for purposes of Section 404 of the Clean Water Act. ConocoPhil-lips’s Cross-Motion for Summary Judgment at Docket 129 is DENIED with respect to this claim. The Court expresses no opinion at this time whether the Corps is required to prepare a Supplemental Environmental Impact Statement.
d. Within 21 days of the date of this Order, the parties in the Kunakna-na case shall file and serve, either jointly or separately, a motion(s) or stipulation that proposes the further proceedings that should occur in this matter.
Notes
. Both actions named as defendants the Corps as well as Corps officers Thomas P. Bostick and Christopher D. Lestochi. This Order refers to all three defendants collectively as "the Corps.”
. Docket 106 at 4, Case No. 3:13-cv-00044 (CBD Mot. for Summ.’J.); Docket 107 at 2, Case No. 3:13-cv-00044 (Kunaknana Pis.' Mot. for Summ. J.).
. See Docket 117 at 1-2 ¶¶ 1-2, Case No. 3:13-cv-00044 (Kunaknana Pls.’ First Am. Compl.); Docket 1 at 2 ¶ 1, Case No. 3:13-cv-00095 (CBD Compl.). In its complaint, CBD also asserted that the Corps’ issuance of the permit violated the Endangered Species Act ("ESA”). Docket 1 at 30-34 ¶¶ 141-60, Case No. 3:13-cv-00095. However, CBD did not raise any ESA claims in its motion for summary judgment. The Court need not reach the ESA issue because it concludes that CBD lacks standing. See infra Discussion Part I.B.i. And in any event, CBD has waived its ESA claims. See Docket 131 at 42-43, Case No. 3:13-cv-00044 (Corps Opp’n to Mot. for Summ. J.) (citing, e.g., City of Santa Clarita v. U.S. Dep’t of Interior, No. CV 02-00697DT,
. In Kunaknana, et al. v. U.S. Army Corps of Engineers, et al., Case No. 3:13-cv-00044-SLG, see Docket 14 (Order Granting Conoco-Phillips Mot. for Intervention), Docket 25 (Order Granting ASRC Mot. for Intervention), Docket 38 (Order Granting State of Alaska Mot. for Intervention), Docket 51 (Order Granting Kuukpik Mot. for Intervention), and Docket 86 at 2 (Order Establishing Joint Case Mgt.) (granting intervention to North Slope Borough). In Center for Biological Diversity v. U.S. Army Corps of Engineers, et al., Case No. 3:13-cv-00095-SLG, see Docket 22 (Order Granting ConocoPhillips Mol. for Intervention), Docket 29 at 2 (Order Establishing Joint Case Mgt.) (granting intervention to State of Alaska, ASRC, North Slope Borough, and Kuukpik).
. Docket 47 at 2 ¶ 2 (Chinn Decl. in Supp. of Kuukpik Mot. to Intervene).
. See D.Ak. LR 16.3(c); see also City & Cnty. of S.F. v. United States,
. Docket 86, Case No. 3:13-cv-00044-SLG (Order Establishing Joint Case Mgt.). The order directed the parties in both cases to filed their summary judgment briefs and replies in Kunaknana, et al. v. U.S. Army Corps of Engineers, et al., Case No. 3:13-cv-00044-SLG. Accordingly, unless otherwise indicated, all subsequent docket references in this Order are to Case No. 3:13-cv-00044-SLG.
. Docket 106 (CBD Mot. for Summ. J.); Docket 107 (Kunaknana Pis.’ Mot. for Summ. J.).
. Docket 131 (Corps Opp’n); Docket 129 (ConocoPhillips Opp’n); Docket 140 (ASRC Opp'n); Docket 141 (Kuukpik Opp’n); Docket 142 (State of Alaska Opp’n); Docket 143 (North Slope Borough Opp’n). ConocoPhillips also filed a copy of its opposition at Docket 127. However, in this Order the Court references only Docket 129 when discussing ConocoPhillips’s opposition. Additionally, the Corps and ConocoPhillips later filed Notices of Errata at Dockets 135 and 144, respectively, that corrected certain citations in their briefs.
. See D.Ak. LR 16.3(c)(2) (“Defendant’s principal brief in opposition ... will be deemed a cross-motion for summary judgment.... ”).
. Docket 146 (Kunaknana Pis.' Reply); Docket 147 (CBD Reply). Also before the Court is a Consolidated Motion to Strike Plaintiffs' Extra-Record Summary Judgment Exhibits filed by ConocoPhillips. Docket 126 (ConocoPhillips Mot. to Strike). That motion is discussed in Discussion Part IV.B.ii.a, infra.
. 33 U.S.C. § 1251(a).
. See 33 U.S.C. § 1311(a).
. The CWA defines "navigable waters” as “the waters of the United States.” 33 U.S.C. § 1362(7). Corps and EPA regulations define "waters of the United States” to include wetlands. See 33 C.F.R. § 328.3(a) (Corps regulation); 33 C.F.R. § 230.3(s) (EPA regulation). The Ninth Circuit has clarified that the CWA only covers wetlands adjacent to or having a "significant nexus” to navigable waters. See N. Cal. River Watch v. City of Healdsburg,
. See Clean Water Act § 404, 33 U.S.C. § 1344.
. See 33 C.F.R. § 320.4(a)(1) (“For activities involving 404 discharges, a permit will be denied if the discharge that would be authorized by such permit would not comply with the [EPA’s] 404(b)(1) guidelines.”).
. 40 C.F.R. § 230.10(a). “An alternative is practicable if it is available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes.’’ Id. § 230.10(a)(2).
. 42 U.S.C. § 4321.
. Marsh v. Or. Natural Res. Council,
. 42 U.S.C. § 4332(C).
. See League of Wilderness Defenders-Blue Mountains Biodiversity Project v. U.S. Forest Serv.,
. 42 U.S.C. § 4332(E).
. 40 C.F.R. § 1506.3(c).
. Friends of the Clearwater v. Dombeck,
. 40 C.F.R. § 1502.9(c)(1).
. Forty Most Asked Questions Concerning CEQ’s National Environmental Policy Act Regulations, 46 Fed.Reg. 18,026, 18,036 (Mar. 23, 1981).
. Great Old Broads for Wilderness v. Kimbell,
. N. Alaska Envt’l Ctr. v. Kempthorne,
. Act of Dec. 12, 1980, Pub.L. No. 96-514, 94 Stat. 2957; see also 42 U.S.C. § 6506a(a) ("The Secretary shall conduct an expeditious program of competitive leasing of oil and gas in the Reserve....").
. See Administrative Record [hereinafter A.R.] 2516 (Special Areas NPR-A Map).
. A.R. 7490 (8/12/10 ConocoPhillips’s Response to Review Officer's Questions).
. A.R. 451 (2004 Alpine Satellites EIS).
. A.R. 4079 (6/9/09 Letter from EPA to Corps).
. A.R. 3297 (11/23/05 Letter from USFWS to Corps).
. A.R. 451 (2004 Alpine Satellites EIS); A.R. 2514 (Plan Area Vicinity and Location Map). Technically, the City of Nuiqsut is distinct from the Native Village of Nuiqsut, which
. A.R. 451 (2004 Alpine Satellites EIS); Docket 47 at 2 ¶ 2 (Chinn Deck in Supp. of Kuukpik Mot. to Intervene); see also A.R. 2514 (Plan Area Vicinity and Location Map).
. See A.R. 2514 (Plan Area Vicinity and Location Map).
. Docket 47 at 2 ¶ 3 (Chinn Deck in Supp. of Kuukpik Mot. to Intervene).
. A.R. 306 (2004 Alpine Satellites EIS).
. A.R. 306 (2004 Alpine Satellites EIS); A.R. 6768 (2011 ROD).
. A.R. 2514 (Plan Area Vicinity and Location Map).
. See A.R. 306 (2004 Alpine Satellites EIS); A.R. 2514 (Plan Area Vicinity and Location Map); A.R. 2515 (Plan Area Map).
. See A.R. 451 (2004 Alpine Satellites EIS); A.R. 2514 (Plan Area Vicinity and Location Map).
. A.R. 306 (2004 Alpine Satellites EIS).
. A.R. 191, 288 (2004 Alpine Satellites EIS); see also A.R. 2387 (4/9/04 Public Notice of Application for Permit).
. A.R. 191, 288 (2004 Alpine Satellites EIS).
. A.R. 191, 288 (2004 Alpine Satellites EIS); see also A.R. 2515 (Plan Area Map).
. A.R. 2515 (Plan Area Map).
. A.R. 191, 288 (2004 Alpine Satellites EIS); see.also A.R. 2515 (Plan Area Map).
. A.R. 2515 (Plan Area Map).
. A.R. 183-2730 (2004 Alpine Satellites EIS).
. A.R. 191 (2004 Alpine Satellites EIS).
. A.R. 318 (2004 Alpine Satellites EIS).
. A.R. 319 (2004 Alpine Satellites EIS).
. A.R. 319, 843 (2004 Alpine Satellites EIS); A.R. 2515 (Plan Area Map).
. A.R. 321 (2004 Alpine Satellites EIS); A.R. 2574 (Alternative F Site Map).
. A.R. 320 (2004 Alpine Satellites EIS); A.R. 2569 (Alternative C-l Site Map).
. See A.R. 5548-5618 (CD-3 & CD-4 ROD).
. A.R. 2995 (2005 Permit Application).
. A.R. 8808-10 (Public Notice re 2005 Permit Application). Certain other documents indicate that the road length was 4.4 miles and the bridge 1375 feet. See A.R. 4009 (3/13/09 Letter from ConocoPhillips to Corps); A.R. 6782 (2011 ROD).
. Docket 47 at 3 ¶ 6 (Chinn Decl. in Supp. of Kuukpik Mot. to Intervene). "Under authority granted Kuukpik by a three-way resolution among the City of Nuiqsut, the Native Village of Nuiqsut and Kuukpik in 1995 (and since reaffirmed), Kuukpik has taken the lead in representing the Nuiqsut community on issues relating to oil and gas development on lands within the traditional subsistence range of the Kuukpikmiut (i.e., the Native people of Nuiqsut).” Docket 47 at 2 ¶ 4.
. A.R. 3913 (4/15/08 Letter from Corps to ConocoPhillips).
. A.R. 3916 (5/15/08 Letter from Corps to ConocoPhillips).
. A.R. 4118 (7/21/09 Letter from Kuukpik to Corps); see also Docket 47 at 4 ¶ 8 (Chinn Decl. in Supp. of Kuukpik Mot. to Intervene) ("ConocoPhillips also entered into a[MOA] with Kuukpik that includes terms designed to avoid and to minimize, as well as mitigate many of the adverse sociocultural and socioeconomic impacts on the Kuukpikmiut from development.”).
. A.R. 4133-41 (7/21/09 Letter from Kuukpik to Corps); see also Docket 47 at 4-5 ¶ 8 (Chinn Deck in Supp. of Kuukpik Mot. to Intervene).
. A.R. 3970 (12/1/08 Letter from Conoco-Phillips to Corps).
. A.R. 6769 (2011 ROD). As noted above, December 2008 is the date the application was initially submitted. A.R. 3970 (12/1/08 Letter from ConocoPhillips to Corps). Thereafter, the Corps requested, and ConocoPhil-lips provided, additional information in order to complete the permit application. A.R. 3977 (12/23/08 Letter from Corps to Conoco-Phillips); A.R. 4001 (3/13/09 Letter from Co-nocoPhillips to Corps). A public notice of the application was issued in May 2009. A.R. 6769 (2011 ROD). The parties refer to the year of this application differently, as either 2008 or 2009. See, e.g., Docket 108 at 21 (Kunaknana Pis.’ Mot. for Summ. J.) (discussing 2008 permit application); Docket 129 (ConocoPhillips Opp’n) (discussing 2009 permit application). The Court will use 2009 as the date of the application in order to be consistent with the 2011 ROD.
. A.R. 4009 (3/13/09 Letter from Conoco-Phillips to Corps); A.R. 6769 (2011 ROD). In a letter to the Corps, ConocoPhillips asserted that this bridge location "incorporates local knowledge provided by Kuukpik shareholders for the purposes of reducing ice jamming, providing for high and stable banks, avoiding popular subsistence Ashing areas, and avoiding historic landmarks." A.R. 4009 (3/13/09 Letter from ConocoPhillips to Corps).
. A.R. 4009 (3/13/09 Letter from Conoco-Phillips to Corps).
. A.R. 3926 (12/1/08 CD-5 Project Description).
. A.R. 4009 (3/13/09 Letter from Conoco-Phillips to Corps). The 2011 ROD lists the amount of fill in the 2009 proposal as 62.2 acres. See A.R. 6782 (2011 ROD).
. A.R. 4792-93 (2010 ROD); A.R. 6770 (2011 ROD).
. A.R. 4793 (2010 ROD).
. A.R. 7571 (Administrative Appeal Decision).
. A.R. 4801-03 (2010 ROD); A.R. 7571 (Administrative Appeal Decision).
. See A.R. 7366-7403 (4/2/10 Request for Appeal).
. A.R. 7379 (4/2/10 Request for Appeal) (quoting 33 C.F.R. § 331.9(b)).
. A.R. 7379 (4/2/10 Request for Appeal).
. See A.R. 7570, 7578-79 (Administrative Appeal Decision).
. A.R. 7590-91 (Administrative Appeal Decision).
. See A.R. 6773-76 (2011 ROD). Following the remand, over 2,000 pages were added to the administrative record. See A.R. 4883-6762, 10058-10374.
. A.R. 6782 (2011 ROD).
. A.R. 6781-82 (2011 ROD).
. See A.R. 6782 (2011 ROD).
. A.R. 6773-76, 6902 (2011 ROD).
. A.R. 6773 (2011 ROD).
. A.R. 6899 (2011 ROD).
. See 33 C.F.R. § 331.10(b) ("If [the Corps] determines that [an administrative] appeal has merit, the final Corps decision is the district engineer’s decision made pursuant to the ... remand of the appealed action.").
. Docket 1 (Kunaknana Pis.' Compl.).
. Docket 1, Case No. 3:13-cv-00095 (CBD Compl.).
. See supra note 4.
. Docket 141 at 3-4 (Kuukpik Opp’n) (citing Docket 47 at 1-3 ¶¶ 1-2, 5 (Chinn Deck in Supp. of Kuukpik Mot. to Intervene)); cf. supra notes 5, 61 and accompanying text (discussing Kuukpik).
. Docket 140 at 3 (ASRC Opp'n) (citing Docket 21 at 2 ¶4 (Imm. Decl. in Supp. of ASRC Mot. to Intervene)).
. Docket 141 at 3 (North Slope Borough Opp’n); see also Docket 64 at 3-6 (Mem. in Supp. of North Slope Borough Mot. to Intervene).
. Docket 27 at 4-5 (Mem. in Supp. of State of Alaska Mot. to Intervene); Docket 142 at 7-10 (State of Alaska Opp’n).
. Docket 86 at 1-4 (Order Establishing Joint Case Mgt.).
. Docket 96 at 2 (Order Granting Defs. Mot. for Extension of Time & Modifying Case Schedule).
. See supra notes 8-11 and accompanying text.
. Docket 126 at 5 (ConocoPhillips Mot. to Strike). The motion has been fully briefed. See Docket 137 (Kunaknana Pis.' Opp’n to Mot. to Strike); Docket 139 (CBD Opp’n to Mot. to Strike); Docket 145 (ConocoPhillips Reply re Mot. to Strike). Additionally, Inter-venor-Defendants ASRC, State of Alaska, and Kuukpik joined in ConocoPhillips’s motion to strike at Dockets 132, 133, and 134, respectively.
. Docket 149 (Mot. for TRO & Prelim. Inj.).
. Docket 174 at 9 (Order Denying Pis.’ Mot. for TRO & Prelim. Inj.) (“[Ejven assuming Plaintiffs have shown likely success on the merits and likely irreparable harm for purposes of this motion, the balance of the equities tips so far in favor of ConocoPhillips and the other Intervenor-Defendants at this time that a preliminary injunction halting this season’s construction activities is not warranted, nor would it be in the public interest.”).
. Docket 174 at 7 (Order Denying Pis.’ Mot. for TRO & Prelim. Inj.).
. Wash. Envtl. Council v. Bellon,
. See DaimlerChrysler Corp. v. Cuno,
. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
. Friends of the Earth, Inc.,
. Id. at 183,
. See Lujan,
. DaimlerChrysler,
. Lujan,
. See Docket 1 at 3-9 ¶¶ 6-23, Case No. 3:13-cv-00095 (CBD CompL).
. Friends of the Earth,
. See Docket 106-1 (Ex. 1 to CBD Mot. for Summ. J.: Holleman Decl.); Docket 106-2 (Ex. 2 to CBD Mot. for Summ. J.: Lentfer Deck); Docket 106-3 (Ex. 3 to CBD Mot. for Summ. J.: Steiner Deck); see also Docket 106 at 21 (CBD Mot. for Summ. J.) (“Jack Lentfer, Marybeth Holleman and Rick Steiner each have individual standing because the construction of CD-5 will cause them to suffer a concrete and particularized injury.”).
. Docket 106 at 21 (CBD Mot. for Summ. J.).
. Docket 106 at 22 (CBD Mot. for Summ. J.).
. Docket 106-1 at 2 (Ex. 1 to CBD Mot. for Summ. J.: Holleman Decl.).
. Docket 106-1 at 2 (Ex. 1 to CBD Mot. for Summ. J.: Holleman Decl.).
. Docket 106-1 at 2-3 (Ex. 1 to CBD Mot. for Summ. J.: Holleman Decl.).
. Docket 106-1 at 3 (Ex. 1 to CBD Mot. for Summ. J.: Holleman Decl.).
. Docket 106-1 at 4 (Ex. 1 to CBD Mot. for Summ. J.: Holleman Decl.).
. Docket 106-1 at 5 (Ex. 1 to CBD Mot. for Summ. J.: Holleman Decl.).
. Docket 106-3 at 2 (Ex. 3 to CBD Mot. for Summ. J.: Steiner Decl.).
. Docket 106-3 at 3 (Ex. 3 to CBD Mot. for Summ. J.: Steiner Decl.).
. Docket 106-3 at 3-4 (Ex. 3 to CBD Mot. for Summ. J.: Steiner Decl.).
. Docket 106-3 at 5 (Ex. 3 to CBD Mot. for Summ. J.: Steiner Decl.).
. Docket 106-3 at 6 (Ex. 3 to CBD Mot. for Summ. J.: Steiner Decl.).
. Docket 106-2 at 1 (Ex. 2 to CBD Mot. for Summ. J.: Lentfer Decl.).
. Docket 106-2 at 2 (Ex. 2 to CBD Mot. for Summ. J.: Lentfer Decl.).
. Docket 106-2 at 2 (Ex. 2 to CBD Mot. for Summ. J.: Lentfer Decl.).
. Docket 106-2 at 2, 4 (Ex. 2 to CBD Mot. for Summ. J.: Lentfer Decl.).
. Docket 106-2 at 3 (Ex. 2 to CBD Mot. for Summ. J.: Lentfer Decl.).
. Docket 106-2 at 3-4 (Ex. 2 to CBD Mot. for Summ. J.: Lentfer Decl.).
. Docket 106-2 at 4 (Ex. 2 to CBD Mot. for Summ. J.: Lentfer Decl.).
. Docket 106-2 at 4-5 (Ex. 2 to CBD Mot. for Summ. J.: Lentfer Decl.).
. Docket 129 at 25-26 (ConocoPhillips Opp’n).
. Docket 129 at 20-21 (ConocoPhillips Opp’n).
. See Docket 140 at 10 (ASRC Opp’n); Docket 141 at 11 (Kuukpik Opp'n); Docket 142 at 26 (State of Alaska Opp’n); Docket 143 at 5 (North Slope Borough Opp’n).
. Lujan v. Defenders of Wildlife,
. See id. at 563,
. See id.
. Id. at 564, 578,
. Id. at 564,
. Id. at 565,
. Id. at 565-66,
. Id. at 567,
.
. Id. at 1253.
. Id. at 1255-56.
. Id. at 1256.
. Id.
. Id. at 1257.
. Id. at 1256.
. Docket 129 at 22-24 (ConocoPhillips Opp'n).
. See Docket 106-1 (Ex. 1 to CBD Mot. for Summ. J.: Holleman Decl.); Docket 106-3 (Ex. 3. to CBD Mot. for Summ. J.: Steiner Deck); cf. Docket 130 (DeGeorge Deck in Supp. of ConocoPhillips Opp’n) (listing distances of various places visited by CBD's members from the CD-5 project area).
. Docket 106-1 at 4 (Ex. 1 to CBD Mot. for Summ. J.: Holleman Decl.).
. Docket 106-3 at 5 (Ex. 3 to CBD Mot. for Summ. J.: Steiner Decl.).
. See Docket 106-2 (Ex. 2 to CBD Mot. for Summ. J.: Lentfer Decl.); cf. Docket 130 (DeGeorge Decl. in Supp. of ConocoPhillips Opp'n) (listing distances of various places visited by CBD’s members from the CD-5 project area).
. Docket 106-2 at 4 (Ex. 2 to CBD Mot. for Summ. J.: Lentfer Decl.).
. Docket 147 at 6 (CBD Reply) (citation omitted); see also Docket 147 at 4 (“Each of the Center’s declarants has visited the zone of impact of the CD-5 project — the Colville River Delta and adjacent Arctic Ocean_”).
. To support its assertion that the "zone of impact” of the CD-5 project is widespread, CBD cites Defenders of Wildlife v. EPA,
. See supra text accompanying notes 143-44, 152.
. Docket 147 at 6 (CBD Reply).
. Lujan v. Defenders of Wildlife,
. See A.R. 6782 (2011 ROD).
. 58.5 acres is approximately 0.0016 square miles. The Colville River Delta is approximately 250 square miles in size. A.R. 7490 (8/12/10 ConocoPhillips’s Response to Review Officer's Questions). Arctic Alaska is approximately 216,000 square miles in size. Docket 130 at 3 V 12 (DeGeorge Decl. in Supp. of ConocoPhillips Opp’n).
. See Ecological Rights Found. v. Pac. Lumber Co.,
. See Docket 110 at 1 ¶2 (Kunaknana Deck); Docket 111 at 1 ¶ 2 (Itta Deck); Docket 112 at 1 ¶ 2 (Nukapigak Deck); Docket 113 at 1 ¶ 2 (Ahnupkana Deck); Docket 114 at 1 ¶ 2 (Nicholls Deck).
. A.R. 451 (2004 Alpine Satellites EIS); Docket 47 at 2 ¶¶ 2-3 (Chinn Decl. in Supp. of Kuukpik Mot. to Intervene); cf. supra notes 35-38 and accompanying text (discussing Nu-iqsut).
. See Docket 110 (Kunaknana Deck); Docket 111 (Itta Deck); Docket 112 (Nukapi-gak Deck); Docket 113 (Ahnupkana Deck); Docket 114 (Nicholls Deck); see also Docket 129 at 28 (ConocoPhillips Opp’n) (stating Ku-naknana Plaintiffs’ declarations show “actual and repeated use of the area affected by the project for recreational, aesthetic, subsistence and religious purposes”).
. Docket 110 at 3 ¶¶ 10, 12 (Kunaknana Deck); Docket 111 at 3 ¶¶ 10-11 (Itta Deck); Docket 112 at 3 ¶¶ 10-11 (Nukapigak Deck); Docket 113 at 2-3 ¶¶ 10-11 (Ahnupkana Deck); Docket 114 at 3 ¶¶ 10-11 (Nicholls Deck).
. ConocoPhillips asserts that "[t]he decision in Wildearth Guardians v. Salazar demonstrates that the [Kunaknana] [Pjlaintiffs lack standing with respect to their NEPA arguments based on climate change impacts.” Docket 129 at 29 (ConocoPhillips Opp'n). However, as the Kunaknana Plaintiffs correctly point out in their reply, the decision in Wildearth is inapposite. See Docket 146 at 28-29 (Kunaknana Pis.’ Reply). In that case, plaintiff environmental organizations argued that BLM failed to prepare an adequate EIS before leasing certain public lands for coal mining operations. Wildearth Guardians v. Salazar,
. See Docket 107 at 2 (Kunaknana Pls.' Mot. for Summ. J.).
. 5 U.S.C. § 702; see also Wilderness Soc'y v. U.S. Fish & Wildlife Serv.,
. 5 U.S.C. § 706(2)(A).
. Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,
. Native Village of Point Hope v. Salazar,
. Motor Vehicle Mfrs. Ass’n,
. Arrington v. Daniels,
. Nw. Coal, for Alternatives to Pesticides (NCAP) v. EPA,
. Id. (quoting Motor Vehicle Mfrs. Ass’n,
. Arrington,
. Id.
. Docket 129 at 29-30 (ConocoPhillips Opp’n).
. See Docket 140 at 10 (ASRC Opp’n); Docket 141 at 12 & n. 46 (Kuukpik Opp'n); Docket 142 at 23 (State of Alaska Opp’n); Docket 143 at 5 (North Slope Borough Opp’n).
. In his declaration, one of the Kunaknana Plaintiffs, Sam Kunaknana, states that he “participated in a meeting regarding CD-5 held by the Corps prior to the Corps issuing its 2010 Record of Decision.” Docket 110 at 3 (Kunaknana Deck). However, he does not elaborate further, and the Kunaknana Plaintiffs do not discuss Mr. Kunaknana’s participation in the administrative process in their briefing.
. Docket 146 at 10 (Kunaknana Pls.’ Reply)-
. ‘Ilio'ulaokalani Coal. v. Rumsfeld,
. See, e.g., Nat’l Parks & Conservation Ass’n v. Bureau of Land Mgmt.,
. See Docket 146 at 10 (Kunaknana Pis.’ Reply). The Kunaknana Plaintiffs correctly point out that courts sometimes blur the distinction between exhaustion of administrative remedies and "issue exhaustion.” See Docket 146 at 10 n. 1. In Portland General Electric Co. v. Bonneville Power Administration, the Ninth Circuit stated that although the general requirement that issues first be raised before the administrative agency "has sometimes been phrased in terms of standing or exhaustion, ... it is best characterized as waiver.”
. Lands Council v. McNair,
. See Nat’l Parks & Conservation Ass’n,
. See Portland Gen. Elec. Co.,
.
. Id. at 760-62,
. Id. at 762-64,
. Id. at 764-65,
. Id. at 764,
. Dep’t of Transp.,
. Id.
. Barnes v. U.S. Dep’t of Transp.,
. A.R. 6773 (2011 ROD).
. Docket 108 at 31 (Kunaknana Pis.’ Mot. for Summ. J.).
. See Docket 108 at 32 (Kunaknana Pis.’ Mot. for Summ. J.) ("[T]he Corps not only failed to prepare the requisite supplemental EIS or EA, it failed to even make the initial determination that there is no significant new information or that the project has not changed in such a manner to warrant additional NEPA analysis, which violates NEPA.”).
. See Great Old Broads for Wilderness v. Kimbell,
. See supra note 25 (quoting 40 C.F.R. § 1502.9(c)(1)); see also N. Idaho Cmty. Action Network,
. Marsh v. Or. Natural Res. Council,
. Selkirk Conservation Alliance v. Forsgren,
. See Marsh,
. See Marsh,
. 222 F.3d 552 (9th Cir.2000).
. Id. at 555-56.
. Id. at 556.
. Id. at 558.
. Id. at 559.
. Id.; cf. also Cal. Wilderness Coal. v. U.S. Dep’t of Energy,
. Docket 108 at 34 (Kunaknana Pis.' Mot. for Summ. J.).
. See Docket 146 at 11-12 & n. 11 (Kunaknana Pls.' Reply) (citing A.R. 4077 (6/05/09 Letter from USFWS to Corps) ("In light of the proposed changes to the CD-5 development project, the lack of alternatives analysis, and advances in relevant technology, the Service recommends the development of a Supplemental EIS to update the Alpine Satellites
. See A.R. 6811, 6814 (2011 ROD) (responding to EPA’s and USFWS’s recommendations that the Corps prepare SEIS in light of changes to CD-5 project).
. Docket 108 at 33-34 (Kunaknana Pis.' Mot. for Summ. J.).
. Docket 108 at 34 (Kunaknana Pis.’ Mot. for Summ. J.) (third alteration in original) (citing A.R. 6811 (2011 ROD)).
. See A.R. 6899 (2011 ROD).
. A.R. 6811 (2011 ROD) (response to EPA); A.R. 6814 (2011 ROD) (response to USFWS).
. A.R. 6837 (2011 ROD).
. See A.R. 2569 (Alternative C-1 Site Map); see also Docket 129 at 46-47 & n. 181 (ConocoPhillips Opp'n) (asserting location of Nigliq Channel bridge in Alternative C-l is “indistinguishable” from location approved in 2011 ROD).
. See A.R. 6781-82 (2011 ROD) ("The CD-5 drill pad was relocated 1.3 miles to the west of the site originally identified in the FEIS.... Additionally, the size of the CD-5 drill pad has increased to accommodate an increase in the proposed number of wells and additional surface infrastructure.”).
. A.R. 6787 (2011 ROD) (emphasis added).
. The location of the CD-5 pad was the same in each of the EIS alternatives. See A.R. 2567-74 (Maps of Alternatives); see also Docket 146 at 18 (Kunaknana Pis.’ Reply) . ("[N]one of the alternatives reviewed in the 2004 EIS include an option with the drill pad located 1.3 miles to the west.”); cf A.R. 6868 (2011 ROD) ("Impacts to the Nigliagvik Channel were not addressed in the FEIS....”).
. See Docket 146 at 17 n. 39 (Kunaknana Pis.’ Reply) ("While the Corps notes that there 'have been some changes to the locations and sizes of the drill pad [and] the impacts that will result from the project are similar,' it offers no actual analysis to show that the impacts will be similar.”).
. See A.R. 5766-67 (9/23/11 Corps Memorandum for Record); see also A.R. 6781 (2011 ROD) ("The CD-5 drill pad was relocated 1.3 miles to the west of the site originally identified in the FEIS for several reasons. According to ConocoPhillips, the new location will enable better access to the CD-5 reservoir to the west and south. Wells in the new location will have lower angles thus less risk of having problems during well service and maintenance operations. Additionally, the size of the CD-5 drill pad has increased to accommodate an increase in the proposed number of wells and additional surface infrastructure.”).
. See Docket 129 at 45-52 (ConocoPhillips Opp'n). Similarly, ASRC and Kuukpik point out that the location of the Nigliq Channel bridge was changed to ameliorate the Nuiqsut community's environmental and subsistence concerns. See Docket 140 at 15 (ASRC Opp’n); Docket 141 at 18 (Kuukpik Opp'n).
. See Docket 146 at 18 n. 46 (Kunaknana Pls.’ Reply) (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,
. Motor Vehicle Mfrs. Ass’n,
. The Court expresses no opinion at this time about whether an SEIS is necessary.
. Docket 108 at 41 (Kunaknana Pis.' Mot. for Summ. J.).
. Docket 108 at 42-43 (Kunaknana Pis.’ Mot. for Summ. J.).
. Docket 108 at 43-46 (Kunaknana Pis.’ Mot. for Summ. J.).
. Docket 108 at 42-43 (Kunaknana Pls.’ Mot. for Summ. J.).
. See Friends of the Clearwater v. Dombeck, 222 F.3d 552, 559 (9th Cir.2000) (quoting Warm Springs Dam Task Force v. Gribble,
. See Docket 108 at 42-43 (Kunaknana Pis.' Mot. for Summ. J.).
. A.R. 6899 (2011 ROD); see also A.R. 6814, 6816, 6837-38 (2011 ROD).
. Docket 131 at 38 n. 6 (Corps Opp'n); Docket 129 at 55 (ConocoPhillips Opp’n).
. See Friends of the Clearwater,
. See Docket 146 at 25 (Kunaknana Pls.’ Reply) ("[AJbsent from the Corps’ review is a discussion of why th[e] information that played a decisive role in the [LEDPA determination] is not significant and warrants a supplemental NEPA analysis. The Corps and [ConocoPhillips] simply cannot have it both ways. They cannot assert on the one hand that there was significant new information that supports the Corps’ finding that HDD is not the LEDPA, and then argue that the information was minor, not significant and did not trigger ány NEPA obligations.” (internal quotation marks omitted)).
. See, e.g., A.R. 6787 (2011 ROD) ("A complete design analysis of the logistics for the HDD alternative was submitted by [Conoco-Phillips] on June 24, 2011.”); A.R. 6773 (2011 ROD) ("During the remand information presented by ConocoPhillips, the [State Pipeline Coordinator’s Office Chief Pipeline Engineer], and the Federal Joint Pipeline Coordinator’s Office ... led me to reconsider the environmental consequences associated with the roadless scenario that had been previously determined to be a potential LEDPA.”).
. Docket 131 at 20 (Corps Opp’n) (“The Corps concluded that this new information played a decisive role in its [LEDPA] determination. ...”); Docket 129 at 32 (ConocoPhil-lips Opp’n) (stating critical factor that led the Corps to reconsider whether ConocoPhillips’s proposal was the LEDPA was "substantial new information ... presented by federal, state and local agencies, Native Alaskan interests, and [ConocoPhillips]”). In its brief, the State of Alaska provides a detailed overview of the "additional expert opinions and analy-ses” it submitted to the Corps following the administrative remand. See Docket 142 at 10-25 (State of Alaska Opp’n). But the State then maintains that nothing it submitted "would constitute significant new information for purposes of [NEPA].” See Docket 142 at 10 n. 19.
. ConocoPhillips offers some explanation in its brief for why it believes the post-2004 documents cited in the 2011 ROD did not warrant preparation of an SEIS. See Docket 129 at 55-56 (ConocoPhillips Opp’n). However, as explained in the preceding section, the Court cannot rely on post-hoc rationalizations to affirm the Corps’ decision. See supra notes 231-32 and accompanying text.
. See A.R. 490-93 (2004 Alpine Satellites EIS).
. A.R. 493 (2004 Alpine Satellites EIS).
. A.R. 493 (2004 Alpine Satellites EIS).
. Docket 108 at 43-44 (Kunaknana Pls.’ Mot. for Summ. J.).
. See Docket 109 at 2-3 (Bostrom Decl. in Supp. of Kunaknana Pis.' Mot for Summ. J.); Dockets 109-2 — 109-7 (Exs. 1-5 to Kunakna-na Pis.’ Mot. for Summ. J.). In their summary judgment motion, the Kunaknana Plaintiffs assert the Court should consider the reports because they are demonstrative of the "substantial body” of post-2004 information concerning climate change that the Corps should have considered in a supplemental NEPA analysis. Docket 108 at 45 n. 254 (Kunaknana Pis.' Mot. for Summ. J.).
. See Docket 126 at 5 (ConocoPhillips Mot. to Strike). Intervenor-Defendants ASRC, State of Alaska, and Kuukpik joined in this motion at Dockets 132, 133, and 134, respectively.
. Fence Creek Cattle Co. v. U.S. Forest Serv.,
. Docket 137 at 5 (Kunaknana Pls.’ Opp’n to Mot. to Strike) (citing Sw. Ctr. for Biological Diversity v. U.S. Forest Serv.,
. Cf. supra Discussion Part II (explaining how reviewing court must look to agency record to determine whether agency articulated rational explanation for its action).
. In the same motion, filed in Kunaknana, et al. v. U.S. Army Corps of Engineers, et al., Case No. 3:13-cv-00044, ConocoPhillips also moved to strike Exhibit 5 to CBD’s motion for . summary judgment. Docket 126 at 4-5 (Co-nocoPhillips Mot. to Strike). Because the Court is dismissing the action filed by CBD for lack of standing, this request will also be granted.
. Docket 131 at 40 (Corps Opp’n) (citation omitted).
. Docket 131 at 40 (Corps Opp'n).
. Docket 146 at 30 (Kunaknana Pis.’ Reply)-
. Docket 146 at 30 & n. 110 (Kunaknana Pls.’ Reply) (citing A.R. 4081 (6/09/09 Letter from EPA to Corps)).
. A.R. 4081 (6/09/09 Letter from EPA to Corps). In the Kunaknana Plaintiffs’ response to ConocoPhillips’s motion to strike, they indicate that the Scenarios Network for Alaska Planning document referenced by EPA is Exhibit 2 to their summary judgment brief. See Docket 137 at 8-9 n. 31 (Kunaknana Pis.’ Opp'n to Mot. to Strike). The document is not included in the record.
. Docket 108 at 44 (Kunaknana Pis.' Mot. for Summ. L) (citing A.R. 4591 (9/09/09 Letter from EPA to Corps)).
. A.R. 4591. After independently reviewing the record, this Court has found one other document potentially alerting the Corps to new information concerning climate change:
.Docket 146 at 30 n. 110 (Kunaknana Pls.’ Reply) (citing A.R. 6899 (2011 ROD)); cf. supra notes 199-200 and accompanying text (explaining "so obvious” exception to issue exhaustion rule).
. A.R. 6899 (2011 ROD).
. A.R. 6887(2011 ROD).
. See A.R. 6887-89 (2011 ROD).
. See Great Basin Mine Watch v. Hankins,
. Cf. A.R. 6808 (2011 ROD) (responding to EPA’s letters). With respect to NEPA supplementation, it appears the Corps interpreted the letters from EPA and the environmental groups to argue only that changes to the project required a supplemental NEPA analysis. See A.R. 6811, 6837-38 (2011 ROD) (responding to EPA's and environmental groups’ letters).
. See 40 C.F.R. § 1500.1(b); see also supra Facts Part I.B (discussing NEPA’s purpose).
. Docket 129 at 56-57 (ConocoPhillips Opp'n).
. The copy of this motion filed at Docket 42 in Center for Biological Diversity v. U.S. Army Corps of Engineers, et al., Case No. 3:13-cv-00095, is also DENIED as moot.
.The copy of ASRC’s joinder filed at Docket 44 in Center for Biological Diversity v. U.S. Army Corps of Engineers, et al., Case No. 3:13-cv-00095, is also GRANTED.