January 06th, 2023

Shrimpers v. United States Army Corps

Docket: 21-60889
Opinion Date: January 5, 2023
Judge: King
Areas of Law: Energy, Oil & Gas Law, Environmental Law, Government & Administrative Law

Petitioners Shrimpers and Fishermen of the RGV, Sierra Club, and Save RGV from LNG (collectively, “Petitioners”) challenge the issuance of a Clean Water Act (“CWA”) permit by the U.S. Army Corps of Engineers (the “Corps”). Petitioners allege that the Corps’ permit issuance violated the CWA and its implementing regulations.
 
The Fifth Circuit denied the petition for review, holding that the Corps approved the least environmentally damaging practicable alternative presented before it during the permitting process and did not act arbitrarily in its evaluation of pipeline construction impacts and mitigation efforts. The court explained Petitioners’ first set of arguments centers on the Corps’ estimation that restoration will occur within one year. They state that the Corps did not consider the full construction period when quantifying the duration of impacts, which they allege is improper. However, they supply no evidence that the construction period must be, or even that it typically is, included when assessing whether impacts are temporary.
 
Further, the Corps’ analysis also comports with the EIS, which estimates that herbaceous vegetation will regenerate “within 1 to 3 years.” The EIS estimation necessarily includes the finding that vegetation may revegetate in one year, as the Corps concluded. Finally, the EPA feedback Petitioners relied upon does not consider the approved compensatory mitigation plan or the special conditions of the permit because the comments are from 2015 and 2018— well before the current permit (and even the original permit) was approved. The Corps considered this feedback and aligned its ultimate approach with the EPA’s recommendations.

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