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Sierra Club v. United States Army Corps of Eng'rs

United States District Court, D. Columbia.

November 13, 2013

SIERRA CLUB, et al., Plaintiffs,
v.
UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants

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[Copyrighted Material Omitted]

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For SIERRA CLUB, Plaintiff: James G. Murphy, LEAD ATTORNEY, PRO HAC VICE, NATIONAL WILDLIFE FEDERATION, Montpelier, VT; Doug Hayes, Eric E. Huber, PRO HAC VICE, SIERRA CLUB ENVIRONMENTAL LAW PROGRAM, Boulder, CO; Joshua R. Stebbins, SIERRA CLUB ENVIRONMENTAL LAW PROGRAM, Washington, DC.

For NATIONAL WILDLIFE FEDERATION, Plaintiff: James G. Murphy, LEAD ATTORNEY, PRO HAC VICE, NATIONAL WILDLIFE FEDERATION, Montpelier, VT; Joshua R. Stebbins, LEAD ATTORNEY, SIERRA CLUB ENVIRONMENTAL LAW PROGRAM, Washington, DC; Eric E. Huber, Doug Hayes, SIERRA CLUB ENVIRONMENTAL LAW PROGRAM, Boulder, CO.

For UNITED STATES ARMY CORPS OF ENGINEERS, THOMAS P. BOSTICK, in his official capacity as Commanding General and Chief of Engineers of the U.S. Army Corps of Engineers, RICHARD A. PRATT, in his official capacity as Commander and District Engineer of the U.S. Army Corps of Engineers Tulsa District, MARK DESCHENES, in his official capacity as District Commander of the U.S. Army Corps of Engineers Rock Island District, ANDREW D. SEXTON, in his official capacity as District Commander of the U.S. Army Corps of Engineers Kansas City District, CHRISTOPHER HALL, in his official capacity as St. Louis District Commander of the U.S. Army Corps of Engineers, ANTHONY FOXX, in his official capacity as Secretary of the United States Department of Transportation, CYNTHIA L. QUARTERMAN, in her official capacity as Administrator of the United States Department of Transportation Pipeline and Hazardous Materials Safety Administration, UNITED STATES DEPARTMENT OF TRANSPORTATION PIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION, DANIEL M. ASHE, in his official capacity as Director of the United States Fish and Wildlife Service, UNITED STATES FISH AND WILDLIFE SERVICE, SALLY JEWELL, in her official capacity as Secretary of the Interior, KEVIN K. WASHBURN, in his official capacity as Assistant Secretary Indian Affairs, UNITED STATES DEPARTMENT OF INTERIOR BUREAU OF INDIAN AFFAIRS, GINA MCCARTHY, in her official capacity as Administrator of the Environmental Protection Agency, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendants: Eileen T. McDonough, LEAD ATTORNEY, U.S. ENVIRONMENTAL DEFENSE SECTION, Washington, DC; John J. Gowel, LEAD ATTORNEY, UNITED STATES ATTORNEY'S OFFICE FOR THE DISTRICT OF COL, Civil Division, Washington, DC; Ty Bair, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, ENRD/NRS, Washington, DC.

For ENBRIDGE PIPELINES (FSP) L.L.C., Intervenor Defendant: David Hyler Coburn, LEAD ATTORNEY, Cynthia Lucille Taub, STEPTOE & JOHNSON, L.L.P., Washington, DC.

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MEMORANDUM OPINION

KETANJI BROWN JACKSON, United States District Judge.

The Sierra Club and the National Wildlife Federation (" Plaintiffs" ) have brought this action for a declaratory judgment against several federal agencies and their executive officers in their official capacity (the " Federal Agencies" ) regarding construction of the Flanagan South Pipeline, a domestic oil pipeline running from Illinois to Oklahoma (the " FS Pipeline" ). [1] Plaintiffs allege that the Federal Agencies have failed to assess adequately the environmental impacts of this privately-owned pipeline, in violation of the National Environmental Protection Act (" NEPA" ), the Clean Water Act (" CWA" ), and the Administrative Procedure Act (" APA" ). In addition, Plaintiffs have now filed a motion for a preliminary injunction that asks the Court to enjoin the actions of the Federal Agencies in relation to the FS Pipeline, and to enjoin construction and operation of the entire pipeline (which is in the process of being constructed mostly on privately-owned land) pending a final ruling on the merits of the case.

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This Court has considered the parties' briefs on the motion for a preliminary injunction, the arguments made at the preliminary injunction hearing, the portions of the record that the parties have submitted in support of and in opposition to the motion, and the complex web of statutes and regulations that Plaintiffs' allegations implicate. Although Plaintiffs have drafted a complaint that attacks the pipeline-related actions of the several government agencies separately, Plaintiffs' central contention in this case is that the Federal Agencies had a collective statutory obligation to perform an in-depth environmental review of the entire FS Pipeline before any construction on the pipeline could commence. At least on the current record, however, Plaintiffs have significantly overstated the breadth of federal involvement in the pipeline project and have failed to establish sufficiently that applicable federal statutes and regulations would require the extensive environmental review process that Plaintiffs seek. Moreover, Plaintiffs have fallen short of demonstrating that irreparable harm will result if the current construction proceeds during the pendency of this litigation, and the Court is not convinced that the balance of harms and public interest factors weigh in Plaintiffs' favor.

Consequently, as explained further below, the Court concludes that Plaintiffs' motion for a preliminary injunction must be DENIED.

I. BACKGROUND

A. The Flanagan South Pipeline

The FS Pipeline is a proposed 589-mile domestic oil pipeline that, once constructed, will transport tar sands crude oil from Pontiac, Illinois, through the states of Missouri and Kansas, and ultimately into Cushing, Oklahoma. Enbridge Pipelines (FSP) LLC (" Enbridge" ), one of the leading energy transportation companies in North America, owns the planned pipeline. Enbridge began construction of the pipeline on August 14, 2013, and expects to complete the pipeline in the summer of 2014.

At least 560 miles of the 589 miles of pipe that will comprise the FS Pipeline will traverse land that is entirely privately owned. According to Enbridge, the company has identified 2,368 tracts owned bye 1,720 separate landowners along the course of the pipeline and has secured 96% of the land rights along the entire route. Thus, with respect to the vast majority of the pipeline, no federal permission or authorization is required for construction. However, it is undisputed that the FS Pipeline will at times cross federal lands and waterways at various points along its planned route through the heart of the country. Three types of federal crossings will occur and are at issue in this litigation: (1) 13.68 total miles of " waters of the United States" (as defined in the CWA and its implementing regulations) that are primarily located on private land but are subject to the jurisdiction of the Army Corps of Engineers (the " Corps" ) under the CWA [2]; (2) 12.3 miles of Native American land that is subject to the jurisdiction of the Bureau of Indian Affairs (" BIA" ); and (3) 1.3 miles of land that the federal government owns and that is also under the Corps's jurisdiction. To construct and operate the portion

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of the pipeline that traverses these 27.28 total miles, Enbridge must have federal approval, and a separate statutory and regulatory scheme, discussed below, governs each type of land or water crossing.

B. Alleged Federal Involvement With The Flanagan South Pipeline

Because Congress has not authorized the federal government to oversee construction of a domestic oil pipeline, Plaintiffs' complaint relies on a series of federal environmental laws and regulations that require federal agencies with some involvement in domestic pipeline construction to follow certain procedures. The applicable statutes and regulations are set forth in Part C below. The following description of Plaintiffs' allegations regarding federal involvement with the FS Pipeline provides the necessary context.

1. The Corps's " Verifications" Under the Clean Water Act and Nationwide Permit 12

When constructed, the FS Pipeline will cross approximately 1,950 wetlands or waters under the jurisdiction of the Corps--an area that, as noted above, totals 13.68 miles. To undertake the portions of the FS Pipeline construction project that may impact these waterways, Enbridge is required by law to seek federal approval, as mentioned above and explained further below. In August and September of 2012, Enbridge filed a formal notice under the CWA's general permitting system requesting Corps district engineers from each of the four Corps districts through which the proposed FS Pipeline runs to verify that construction of the FS Pipeline project is consistent with a pre-existing general permit that the Corps had previously issued. [3] Enbridge's notice included specific plans for mitigating any potential adverse impacts from the FS Pipeline construction project, as the general permitting system requires. One year later, in August and September 2013, each of the four Corps districts issued a verification letter to Enbridge, confirming that the FS Pipeline's water crossings were consistent with an applicable general permit, provided Enbridge undertook the mitigation plans outlined in its notice.

2. The Corps's Consideration Of Easements For Construction On Federal Lands

In addition to the wetlands under the Corps's jurisdiction, the FS Pipeline passes through approximately 1.3 miles of other federal land under the jurisdiction of the Corps, consisting of 0.7 miles of land at the Mississippi River near Quincy, Illinois, and 0.6 miles of land at the Arkansas River near Tulsa, Oklahoma. Congress has empowered federal agencies to grant rights-of-way across lands " for pipeline purposes for the transportation of oil, natural gas, synthetic liquid or gaseous fuels[,]" 30 U.S.C. § 185(a) (2012), and the

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governing statute expressly places numerous responsibilities on an agency considering whether to permit construction on federal land, including safety requirements, notice requirements, and reporting requirements (including reporting to specific Congressional committees), id. § 185(g), (k), (w). An agency must also comply with applicable environmental statutes and regulations, such as the National Environmental Protection Act, discussed below. Id. § 185(h).

In April and May of 2013, Enbridge applied to the relevant Corps districts for easements to construct the 1.3 mile segment of the FS Pipeline that runs over federal land. Enbridge submitted its applications using a standard form for the construction of transportation and utilities systems on federal lands--an application process that the Corps subjects to the same review procedures as any third-party request for the use of Corps lands. As of the writing of this Opinion, the Corps had informed the relevant Congressional committees (the House and Senate Committees on Natural Resources) about Enbridge's easement applications, and had begun an environmental assessment of the project, but had not yet reached a decision about whether or not to grant Enbridge's applications.

3. The BIA's Consideration Of Easements For Construction On Indian Land That The Federal Government Holds In Trust

Under 25 U.S.C. § 323, the BIA " is empowered to grant rights-of-way for all purposes, subject to such conditions as [the Secretary of the Interior] may prescribe, over and across any lands now or hereafter held in trust by the United States for individual Indians or Indian tribes." The BIA has promulgated regulations governing the granting of easements over Indian land. See generally 25 C.F.R. Part 169 (2013). These regulations include specific guidelines for, among other things, applications, surveying, and providing consideration to landowners. Id. The regulations also include specific provisions pertaining to easements for oil or gas pipelines. See id. § 169.25.

The proposed FS Pipeline crosses over 34 parcels of privately-owned Indian land subject to the BIA's jurisdiction, comprising a total of 12.3 miles. As of the writing of this Opinion, Enbridge had applied to the BIA for easements over these parcels, and the BIA was in the process of conducting an environmental assessment of the impact of the pipeline on those areas. The BIA had not yet determined whether to grant or deny Enbridge's requested easements.

4. The Fish and Wildlife Service's Biological Opinion And Incidental Take Statement

As a part of the process for evaluating Enbridge's request for easements to construct portions of the FS Pipeline on the federal lands as described above, the Corps and the BIA consulted the Fish and Wildlife Service (" FWS" ) about the potential impact of the FS Pipeline on animal life in the area. Under the Endangered Species Act (" ESA" ), 16 U.S.C. § § 1531-1544 (2012), all federal agencies must consult with the FWS to ensure that " any action authorized, funded, or carried out by such agency" is unlikely " to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species[.]" 16 U.S.C. § 1536(a)(2). The agency or agencies must engage in formal consultations with the FWS, and the ESA's implementing regulations contain detailed guidelines that govern these consultations. See, e.g., 50 C.F.R. § 402.14(c) (2013). Moreover, at the conclusion of the required consultation,

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the FWS must issue a written opinion " detailing how the agency action affects [any endangered] species or its critical habitat" and if any issues are identified, " suggesting . . . reasonable and prudent alternatives" that the FWS believes would not run afoul of the ESA's mandate to protect such species. 16 U.S.C. § 1536(b)(3)(A). If the FWS believes that the agency action might result in the " taking" ( i.e., killing) of some members of an endangered species, but is not likely to jeopardize that species' existence or adversely affect its environment in violation of section 1536(a)(2), the FWS will issue an " incidental take statement" that sets out measures that the FWS considers " necessary or appropriate to minimize [the] impact" of the agency action on any endangered species. 16 U.S.C. § 1536(b)(4).

Pursuant to this statutory and regulatory scheme, in May and June of 2013, both the Corps and the BIA requested that the FWS evaluate the impact of the construction of the FS Pipeline on certain endangered or threatened species. (FWS Biological Opinion on Enbridge Pipelines (FSP) LLC's Flanagan South Pipeline Project (" Biological Opinion" ), ECF No. 14-8, at i.) The Corps specifically requested the FWS's opinion regarding the effects of the pipeline on both the decurrent false aster plant and the Indiana bat, while the BIA's consultation request included both of those species and also the American burying beetle. ( Id. )

The FWS issued its Biological Opinion on July 24, 2013. With respect to the decurrent false aster, the FWS found that the effects from the FS Pipeline would be " small[, and] temporary, and recovery will be rapid." ( Id. ) For the American burying beetle, the Biological Opinion concluded that the pipeline construction might modify approximately 200 acres of species habitat, and that some beetles may be disturbed or killed, but that " most of the effects [of construction on the beetle] are expected to be infrequent, of short duration, and reversible." ( Id. at i-ii.) Finally, regarding the Indiana bat, the FWS predicted that the construction would " potentially" kill 19 non-reproductive bats and " harm or harass" no more than 120 other bats, but that " these impacts are not likely to cause maternity colony impacts" and therefore " it is unlikely that the anticipated effects [of the pipeline] will affect the likelihood of achieving the recovery needs of the species[.]" ( Id. at ii.) Additionally, because the FWS found that it was possible that the pipeline construction would result in the death of some endangered beetles and/or bats, it issued an incidental take statement that exempted the Corps, the BIA, and Enbridge from the prohibitions against " taking" endangered species found in the ESA, provided that any such taking was done in compliance with the terms of the incidental take statement. ( Id. )

5. The Pipeline and Hazardous Materials Safety Administration's Failure To Act On The Not-Yet-Filed Oil Spill Response Plan

Finally, as discussed further below, Plaintiffs rest one claim in the complaint on the in action of a federal agency regarding an assessment of the risks involved with transporting oil through the FS Pipeline. The Oil Pollution Act of 1990, 33 U.S.C. § § 2701-2762, mandates that operators of oil facilities (which include pipelines) " prepare and submit to the President a plan for responding, to the maximum extent practicable, to a worst case discharge, and to a substantial threat of such a discharge, of oil or a hazardous substance." 33 U.S.C. § 1321(j)(5) (2012). The Pipeline and Hazardous Materials Safety Administration (" PHMSA" ), a division of Department of Transportation, has

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authority to promulgate regulations governing these response plans. See Exec. Order No. 12,777 § (2)(d)(2), 56 Fed. Reg. 54,757 (Oct. 22, 1991). PHMSA regulations permit pipeline operators to submit spill response plans based on " response zones," such that more than one pipeline may be covered by a single plan if they are in the same geographic region. 49 C.F.R. § § 194.5, 194.107 (2013). Moreover, the required response plan must be submitted before an operator can " handle, store, or transport oil in that pipeline," but the operator does not need to submit a plan prior to the pipeline's construction. Id. § 194.7(a). In addition, so long as the operator has submitted a plan to the PHMSA and has certified that there is adequate personnel and equipment to deal with an oil spill, a pipeline may be in operation for up to two years without PHMSA approval of a plan. Id. § § 194.7(c), 194.119(e).

As the owner and future operator of the proposed FS Pipeline, Enbridge is required to submit a response plan to the PHMSA before the pipeline begins operating. The FS Pipeline is still under construction, however. At the time of the writing of this Opinion, Enbridge had not yet submitted any oil spill response plan for PHMSA review.

C. Plaintiffs' Interests And Specific Claims

Plaintiffs are the Sierra Club, one of the oldest and largest environmental organizations in the country, which currently has approximately 600,000 members and traces its roots back to 1892; and the National Wildlife Federation, the nation's largest conservation advocacy and education organization. (First Amended Complaint (" Compl." ), ECF No. 7, ¶ ¶ 12, 16.) Some of the Sierra Club's members live in each of the regions through which the FS Pipeline is planned to run. ( Id. ¶ 13.) Plaintiffs allege that the construction and operation of the FS Pipeline without proper environmental review will injure them, both because they rely on such environmental reviews for information used in planning their activities and disseminating information to their members, and because they and their members have aesthetic, scientific, recreational, business, and property interests in the areas where pipeline construction and operation will occur. ( Id. ¶ ¶ 17-18.)

Based on the complaint and the statements made during the preliminary injunction hearing, Plaintiffs' primary concern appears to be that the proposed FS Pipeline will damage the environment and that the federal government has not adequately assessed the environmental impact of this pipeline proposal. However, as noted above, there is no federal statute that requires or permits federal oversight of an entirely domestic oil pipeline such as the one at issue here. Consequently, Plaintiffs have brought this action in federal court in reliance on various federal laws that, when applicable, require agencies and individuals to comply with certain standards prior to undertaking construction projects that may impact the environment.

Plaintiffs have organized the allegations in their complaint into six separate claims, five of which arise under National Environmental Protection Act, the Clean Water Act, and the Administrative Procedure Act. ( See generally Compl. ¶ ¶ 143-93.) [4]

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As promised, the statutory schemes that these claims implicate are discussed in more detail below.

1. The National Environmental Protection Act (" NEPA" )

The bulk of Plaintiffs' complaint arises under NEPA, 42 U.S.C. § § 4321-4347 (2012). ( See Compl. ¶ ¶ 155-89 (Counts II - V).) As a general matter, Congress enacted NEPA as a call to the federal government to consider the environmental consequences of its actions, see 42 U.S.C. § 4331(b)(1), and the regulations implementing NEPA describe it as the country's " basic national charter" for environmental protection. 40 C.F.R. § 1500.1 (2013).

NEPA is, in essence, a " procedural statute" designed to ensure that federal agencies make fully-informed and well-considered decisions. New York v. Nuclear Regulatory Comm'n, 681 F.3d 471, 476, 401 U.S.App. D.C. 140 (D.C. Cir. 2012) (quoting Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978) (internal quotation marks omitted)). To this end, before a federal agency undertakes a " major federal action[] significantly affecting the quality of the human environment," 42 U.S.C. § 4332(2)(C), NEPA requires the agency to evaluate the environmental consequences of that proposed action. The required evaluation involves preparing a detailed environmental impact statement (" EIS" ) that describes the impact of the proposed action on the environment and any alternatives to the proposed action, which the agency must publish for public review and comment. Id. [5]

To determine whether a particular agency action qualifies as a " major federal action significantly affecting the quality of the human environment" such that an EIS is required, an agency may opt to prepare a less-detailed environmental assessment (" EA" ), which is a " concise public document" that briefly provides evidence and analysis to assist an agency in deciding whether the action in question requires an EIS. 40 C.F.R. § 1501.4(a)-(c); id. § 1508.9 (defining an EA). Based on the information contained in the EA, the agency may proceed to prepare an EIS; alternatively, the agency may conclude that its action will not have a significant effect on the human environment such that an EIS

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is not warranted. 40 C.F.R. § 1501.4(e). [6]

NEPA is relevant to this case because most of Plaintiffs' claims allege that, in myriad respects, the Federal Agencies have failed to abide by their NEPA review obligations with respect to the FS Pipeline. These claims generally fall into two categories: first, that the individual actions of certain Federal Agencies regarding the FS Pipeline were " major federal actions" requiring those agencies to prepare an EIS or at least undertake an EA under NEPA (Compl. ¶ ¶ 155-79 (Counts II-IV)); and second, that the combined actions of all the Federal Agencies gave rise to an unfulfilled NEPA obligation to conduct a detailed environmental analysis of the entire 589-mile pipeline as a whole (Compl. ¶ ¶ 180-89 (Count V)).

2. The Clean Water Act And Nationwide Permit 12

Plaintiffs maintain that the Corps' actions in regard to the proposed FS Pipeline water crossings violate the CWA, 33 U.S.C. § § 1251-1387 (2013), both because the Corps was required to conduct a NEPA review prior to providing the requested CWA verifications (Count II), and because the Corps erred in concluding that the construction project at issue here satisfied the requirements of the pre-existing general permit known as Nationwide Permit 12 (" NWP 12" ) (Count VI). ( See Compl. ¶ ¶ 155-64; 190-93.) Plaintiffs' claims in this regard relate generally to the stated purpose of the CWA--to " restore and maintain the chemical, physical, and biological integrity of the Nation's waters," 33 U.S.C. § 1251--a goal that Congress has generally sought to accomplish by prohibiting the discharge of any pollutant, including dredged or fill material, into the " waters of the United States." See 33 U.S.C. § § 1311, 1362(6), (7), (12). Section 404 of the CWA allows for limited exceptions to this general prohibition against discharges, however; in this regard, the statute specifically authorizes the Secretary of the Army (acting through the Corps) to issue permits " for the discharge of dredged or fill material into the navigable waters at specified disposal sites." 33 U.S.C. § 1344(a). [7]

Significantly for present purposes, two alternative types of discharge permits are available under Section 404: (1) individual permits that the Corps provides with respect to a particular project, and (2) general permits that are issued for a given activity within a certain geographical area, i.e., a state, a region, or (as relevant here) nationwide. 33 U.S.C. § § 1344(a), (e). Individual permits are subject to detailed application and processing instructions, and before the Corps can issue an individual permit, it must conduct a case-specific review of each application, including preparation of an EA or EIS pursuant to NEPA. See generally 33 C.F.R. Parts 323, 325 (2013) (setting forth the application and review guidelines for individual permits). General permits, on the other hand, are designed to streamline the permitting process for certain, pre-approved " categor[ies] of activities," namely, those activities that the Corps determines are " similar in nature," " will cause only minimal

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adverse environmental effects when performed separately," and " will have only minimal cumulative adverse effect on the environment." 33 U.S.C. § 1344(e)(1); see generally 33 C.F.R. Part 330 (2013) (setting forth the purposes of and procedures relating to the general permit program). A general permit is valid for five years, and can be reissued for subsequent five-year periods. See 33 U.S.C. § 1344(e)(2). Moreover, once the Corps has issued or reissued a general permit, regional Corps officials known as " division engineers" retain " discretionary authority to modify, suspend, or revoke [general permit] authorizations for any specific geographic area, class of activities, or class of waters within" a given geographical location. 33 C.F.R. § 330.5(c)(1).

Notably, general permits--including the nationwide permit at issue here--undergo a stringent pre-approval evaluation process that involves a comprehensive environmental assessment under NEPA and also public notice and comment. Consequently, once a general permit is issued or reissued, the requisite environmental analysis for any conforming project is considered to have been completed, and persons who seek to engage in activities that the general permit covers may ordinarily " proceed with activities authorized by [general permits] without notifying the [Corps]." Id. § 330.1(e)(1). In some cases, however, a prospective permittee must seek specific verification that the relevant general permit covers the activity, id. § 330.1(d), which is accomplished when a prospective permittee files a " pre-construction notice" (" PCN" ) with the relevant Corps district engineer. After reviewing a PCN, the district engineer may choose to verify that the general permit is applicable by sending the permitee a verification letter immediately, or the district engineer " may add activity-specific conditions to ensure that the activity complies with the terms and conditions of the [general permit] and that the adverse impacts . . . are individually and cumulatively minimal." Id. § 330.1(e)(2). Alternatively, in response to a PCN, the district engineer may determine that the adverse effects of the activity are more than minimal and, as a result, either notify the prospective permittee that an individual permit is required, or permit the permittee to propose " measures . . . to reduce the adverse impacts to minimal." Id. § 330.1(e)(3). [8]

This case concerns Nationwide Permit 12, a nationwide permit that the Corps reissued in 2012. NWP 12 specifically authorizes discharges ...


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