United States Court of Appeals

for the Fifth Circuit

No. 21-60889

Shrimpers and Fishermen of the RGV; Sierra Club; Save 

RGV from LNG, 

Petitioners,

versus

United States Army Corps of Engineers; Colonel 

Timothy R. Vail, in his official capacity as Galveston District 

Commander, U.S. Army Corps of Engineers; Robert W. Heinly, in his 

official capacity as Deputy Chief, Regulatory Division, Galveston District, U.S. 

Army Corps of Engineers, 

Respondents.

Petition for Review of an Order of 

the United States Army Corps of Engineers

Agency No. SWG-2015-00114

Before King, Duncan, and Engelhardt, Circuit Judges.

King, Circuit Judge:

Petitioners challenge a Clean Water Act permit issued by the U.S. 

Army Corps of Engineers authorizing the development of a natural gas 

pipeline and export facility in south Texas. Because 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 

United States Court of Appeals

Fifth Circuit

FILED

January 5, 2023

Lyle W. Cayce

Clerk

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pipeline construction impacts and mitigation efforts, the petition for review

is DENIED.

I.

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”). 

In 2016, Rio Grande LNG and Rio Bravo Pipeline Company (the 

“Developers”) filed an application proposing to build a natural gas pipeline 

system and liquified natural gas (“LNG”) export facility in south Texas, 

partially upon wetland terrain. The Federal Energy Regulatory Commission 

(“FERC”) approved the project in 2019 after preparing an environmental 

impact statement (“EIS”) examining alternative terminal placement and 

pipeline configurations and soliciting public comment. The Corps then 

issued a CWA permit to the Developers in 2020 following an evaluation of 

the FERC EIS, its own environmental assessment, and other relevant 

information.

The Developers’ proposal contemplated the creation of an LNG 

terminal with six liquefaction “trains,” which are equipment systems that 

cool and liquify natural gas, to produce a nominal capacity of approximately 

27 million tons per annum of LNG. Under this proposal, the trains would be

located sequentially, with Train 1 located on the eastern side of the terminal 

and Train 6 located on its west. Ground flares, used in emergency scenarios 

to safely depressurize LNG trains, would be positioned between Trains 2 and 

3. The terminal would receive natural gas via a pipeline system comprising 

two parallel pipelines with capacity to provide about 4.5 billion cubic feet per 

day (Bcf/d) of gas. Other onsite facilities were to include four LNG storage 

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tanks, docking and truck loading facilities, and one of three required 

compressor stations.1

Petitioners challenged the Corps’ issuance of the permit in this court,

see Shrimpers & Fishermen of the RGV v. U.S. Army Corps of Eng’rs, 849 F. 

App’x 459 (5th Cir. 2021), but we held their petition in abeyance because the 

Developers had changed the project design and the Corps had suspended the 

permit for reconsideration.2 The Developers had modified their project 

proposal in April 2020 to eliminate two compressor stations, increase the 

length and operating conditions of the pipelines, and use five liquefaction 

trains instead of six, among other changes not relevant here. Id. at 461. The 

modified design requires the Developers to permanently dredge or fill 149.7 

acres of special aquatic sites and to temporarily impact another 122.7 acres of 

special aquatic sites during pipeline construction.

The FERC approved the terminal changes, including the elimination 

of Train 6, and denied rehearing. The Corps considered the Developers’ 

materials, public comments, and the FERC’s assessment of the proposed 

changes before issuing a modified CWA permit in 2021, which Petitioners 

now challenge.

II.

Petitioners allege that the Corps’ permit issuance violated the CWA

and its implementing regulations by, first, failing to show that the approved 

1 The application located the other two compressor stations upland and beyond the 

terminal’s boundaries.

2 Petitioners Sierra Club and Save RGV from LNG also challenged the FERC’s 

original 2019 authorization in the D.C. Circuit, which held that the FERC’s analyses of 

greenhouse gas emissions and environmental justice were deficient. Vecinos para el 

Bienestar de la Comunidad Costera v. FERC, 6 F.4th 1321 (D.C. Cir. 2021). Those claims are 

not before us and do not impact the issues presented here.

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project was the least environmentally damaging practicable alternative

(“LEDPA”) as required under 40 C.F.R. § 230.10(a) and, second, concluding 

that the wetland impacts caused by pipeline construction did not necessitate 

compensatory mitigation.

The CWA generally prohibits the discharge of pollutants, such as 

sand, dirt, and rock, into waters of the United States. 33 U.S.C. §§ 1311(a), 

1362(6). This includes wetlands. 40 C.F.R. § 230.3(b). However, section 404 

of the CWA allows the Corps to issue permits for the discharge of dredged 

or fill material into United States waters, subject to guidelines developed by 

the Environmental Protection Agency. 33 U.S.C. § 1344. These guidelines 

provide a three-step framework that the Corps must follow when issuing 

permits. First, “no discharge of dredged or fill material shall be permitted if 

there is a practicable alternative . . . which would have less adverse impact on 

the aquatic ecosystem, so long as the alternative does not have other 

significant adverse environmental consequences.” 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” and may include “area[s] not presently owned by 

the applicant which could reasonably be obtained, utilized, expanded or 

managed in order to fulfill the basic purpose of the proposed activity.” Id.

§ 230.10(a)(2). Second, no permits shall issue “unless appropriate and 

practicable steps have been taken which will minimize potential adverse 

impacts.” Id. § 230.10(d). Third, compensatory mitigation is required for 

unavoidable environmental losses, based on a determination regarding what 

is practicable and capable of compensating for lost aquatic resource 

functions. 33 C.F.R. § 332.3(a)(1).

A court must set aside the Corps’ permit if itsissuance was “arbitrary, 

capricious, an abuse of discretion, or otherwise not in accordance with law.” 

5 U.S.C. § 706(2)(A); Buttrey v. United States, 690 F.2d 1170, 1183 (5th Cir. 

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1982). Provided that the Corps “examine[d] the relevant data and 

articulate[d] a satisfactory explanation for its action” such that its “decision 

was based on a consideration of the relevant factors,” this requirement is 

satisfied. Sw. Elec. Power Co. v. EPA, 920 F.3d 999, 1013 (5th Cir. 2019)

(quoting 10 Ring Precision, Inc. v. Jones, 722 F.3d 711, 723 (5th Cir. 2013)). In 

other words, the petition should be denied if the Corps’ path to permit 

approval “may reasonably be discerned.” Motor Vehicle Mfrs. Ass’n of U.S., 

Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (internal 

quotations omitted).

III.

Petitioners put forward several alternative proposals for the terminal 

layout and the pipeline system, arguing that the Corps failed to clearly 

demonstrate that the approved project—and not one or more of these 

alternatives—is the LEDPA required under the first step of the CWA 

framework.

With respect to the terminal layout, at issue is whether the twentyacre space previously designated for westernmost Train 6, which the 

Developers now intend to use for storage and other construction purposes, 

could instead be utilized to reconfigure the terminal layout in ways that are 

both less environmentally damaging and practicable. The first alternative 

Petitioners offer contemplates shifting the ground flares and Trains 3, 4, and 

5 west, such that Train 5 would occupy the footprint previously occupied by

Train 6, and the ground flares would no longer sit upon five acres of wetlands. 

During the permitting process, the Corps considered and rejected this 

alternative as neither practicable nor less environmentally damaging than the 

proposed project. Petitioners assert that the permitted project results in the 

total loss of five acres of wetlands, whereas their proposed alternative only 

impairs those five acres—a less environmentally damaging result. They also 

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contend that this alternative, which requires their proposed Train 5 location 

to be used as a temporary storage and preservation area prior to the

installation of Train 5, is practicable.

This alternative fails, however, because the Corps sufficiently 

explained that it would result in the same functional impairment of wetlands

as the permitted design and thus was not the LEDPA. There is no dispute 

that this alternative would shift the ground flares westward such that 

approximately five acres of wetlands could be avoided; rather, the parties 

dispute how those five acres would be affected by the rest of the project under 

the alternative design. As the Corps explained in an addendum to its 

environmental assessment of the Developers’ proposal, the rest of the 

wetlands would remain permanently filled such that the unfilled five acres of 

wetlands would become isolated. Moreover, the Corps found that the

construction surrounding these five acres would adversely impact the 

hydrology of the area severely enough that the remaining wetlands would 

experience loss of function and degradation. Petitioners contend that this loss 

of function is partial, not total, but the record suggests otherwise. After 

evaluating “whether shifting of the remaining trains could increase 

avoidance of impacts to wetlands” under Petitioners’ proposed alternative, 

the Corps determined that “potential shifting of the remaining trains [3, 4, 

and 5] and ground flares would not result in the avoidance of wetland 

function losses” compared to the permitted project. Because an alternative 

must both be practicable and less environmentally damaging, the failure of 

this alternative to satisfy the latter requirement was sufficient reason alone 

for the Corps to reject it.

Lacking evidence to support their view of the record, Petitioners argue 

that the Corps has not undergone satisfactory analysis regarding the degree 

of wetland impairment under their alternative. They argue the Corps is

required to rebut the “very strong” presumption that impaired wetlands are 

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preferable to no wetlands and has not done so. Buttrey, 690 F.2d at 1180. But 

the law only requires that the Corps begins its analysis with a very strong 

presumption that “unnecessary alteration or destruction of [wetlands] 

should be discouraged as contrary to the public interest.” Id. (quoting 33 

C.F.R. § 320.4(b)(1)). Neither Petitioners nor the record suggest that the 

Corps did not start the permitting process with this in mind—in fact, the 

record suggests the opposite—and we therefore discard this argument. 

Accordingly, Petitioners’ first proposed alternative is not the LEDPA.

Petitioners present a second alternative to the terminal design:

shifting all trains west, with Train 5 again occupying the Train 6 footprint, 

and moving terminal support infrastructure to the Train 1 footprint. 

However, it is not clear that Petitioners ever proposed this alternative during 

the permitting process. Where, as here, the parties challenge the Corps’ 

adequate consideration of alternatives, they “must structure their 

participation to alert the agency to their position in order ‘to allow the agency 

to give the issue meaningful consideration,’ unless a flaw is so obvious that

there is no need to point out the shortcoming.” Gulf Coast Rod, Reel & Gun 

Club, Inc. v. U.S. Army Corps of Eng’rs, 676 F. App’x 245, 251 (5th Cir. 2017) 

(quoting Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 764–65 (2004)). 

Generally, this means raising the alternative in the comments addressed to 

the agency. Pub. Citizen, 541 U.S. at 764–65.

Petitioners direct us toward two comments submitted to the Corps 

that supposedly should have alerted the Corps of this alternative. As an initial 

matter, these comments were submitted in response to the originally

permitted design, not the design at issue in this case. More importantly, they

do not recommend this second alternative Petitioners now suggest. They 

propose generally “reduc[ing] the terminal footprint” by “omit[ting] one of 

the six planned liquefaction trains” (which the Developers have done),

“adopt[ing] a more compact design with the same capacity and number of 

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trains” (i.e., six trains), and “mov[ing] the six liquefaction trains and 

associated equipment to a different and upland site.” None of these 

proposals is sufficiently similar to Petitioners’ proposed alternative to allow 

the Corps to give the issue meaningful consideration, and the supposed flaw 

in the permitted project is not so obvious that there is no need to point it out. 

Rather, Petitioners now propose a significant project redesign without 

providing the Corps an earlier opportunity to meaningfully consider it. We 

need not evaluate it now, and we choose not to do so.

Petitioners also propose an alternative configuration for the pipeline 

system, stating that the Developers should substitute the existing Valley 

Crossing Pipeline (“VCP”) for the second proposed Rio Bravo Pipeline 

(“Pipeline 2”). The VCP is an existing pipeline designed to transport 2.6 

Bcf/d of gas, and it follows a similar route as the permitted first Rio Bravo 

Pipeline (“Pipeline 1”) and Pipeline 2. Several years ago, there were plans to 

modify the VCP to increase its capacity by at least 0.9 Bcf/d, but that project 

was withdrawn in March 2021 before any modifications occurred. Petitioners 

claim that the Developers could now meet their project purpose with only a 

single Rio Bravo Pipeline, utilizing the previously planned—but not 

realized—additional VCP capacity to provide 0.9 Bcf/d of gas and supplying 

the remaining 3.6 Bcf/d using Pipeline 1.

The Corps considered and rejected this alternative on the merits, but 

Petitioners dispute the Corps’ finding that the VCP is impracticable. The 

practicability inquiry concerns “cost, existing technology, and logistics in 

light of overall project purposes,” 40 C.F.R. § 230.10(a)(2), all of which the 

Corps explained make the VCP an impracticable alternative. Most of the 

issues with this alternative stem from the inability of the VCP, even assuming 

an expansion, to supply the 1.9 Bcf/d of gas Pipeline 2 is designed to provide. 

Absent such an expansion, the VCP’s current capacity is fully subscribed to 

end users in Mexico, so any gas it could provide to the permitted project 

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would be on an interruptible basis only. This alone frustrates the project’s 

purpose, which presumes a consistent supply of gas. Importantly, the 

supposed expansion does not currently exist and would require the VCP 

system itself to be redesigned, including the construction of a second pipeline 

to supply the necessary capacity. This redesign would result in a 

transportation service rate that is more than forty percent more expensive 

than under the permitted Pipeline 2.

Assuming the 0.9 Bcf/d expansion occurs, problems remain. To meet 

the pipelines’ purpose of delivering 4.5 Bcf/d of gas to the terminal, Pipeline 

1’s capacity would have to be expanded, and compression and booster 

stations would have to be added to the project design. Moreover, removing 

Pipeline 2 would create significant logistical problems regarding 

maintenance, reliability, and safety. As the FERC explained, a dual pipeline 

system allows natural gas to be transported “reliably and safely” and in a way

that supports “flexible operation to adapt to” unforeseen circumstances. Rio 

Grande LNG, LLC & Rio Bravo Pipeline Company, LLC, 170 FERC ¶ 61,046,

¶ 25 (Jan. 23, 2020) (order on rehearing and stay). The current dual pipeline 

will supply, at a minimum, two liquefaction trains when one pipeline is shut 

down, enabling flexible operation and safe, reliable transportation. Under 

Petitioners’ proposal, that becomes one train, which the Corps states will 

impair terminal operations when Pipeline 1 is offline for any reason.

In addition to these problems, the VCP alternative is impracticable 

because it is not available. 40 C.F.R. § 230.10(a)(2) (“An alternative is 

practicable if it is available . . . .”). The VCP and Rio Bravo are owned by 

different companies, albeit both companies are wholly owned subsidiaries of 

Enbridge Inc. Neither Rio Bravo nor Enbridge has any contracted-for 

capacity on the VCP, and there is nothing in the record to suggest that the 

Developers can demand that the VCP become a project applicant and expand 

the pipeline as Petitioners propose. While “an area not presently owned by 

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the applicant which could reasonably be obtained, utilized, expanded or 

managed in order to fulfill the basic purpose of the proposed activity may be 

considered,” id. § 230.10(a)(2), “[a] mere, unsupported theoretical 

possibility of acquiring the alternative site . . . does not constitute a showing 

that the alternative site is reasonably obtainable,” City of Shoreacres v. 

Waterworth, 420 F.3d 440, 449 (5th Cir. 2005). During the comment period 

and now, Petitioners wholly fail to substantiate their argument that the VCP 

could be acquired by the Developers, and the Corps reasonably determined 

that it was not readily obtainable. Taken together, these factors are sufficient 

to support the Corps’ decision to discard this alternative.

The Corps has satisfactorily explained its reasons for rejecting the 

alternatives previously presented to it and more than met the “minimal 

standards of rationality” required of our review. Waterworth, 420 F.3d at 445 

(quoting Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 905 (5th

Cir. 1983)). Accordingly, the permitted project is the LEDPA.

IV.

Petitioners argue that the Corps acted arbitrarily when it determined 

that impactsto wetlands caused by pipeline construction were temporary and 

did not necessitate compensatory mitigation under the third step of the CWA 

framework. Specifically, they assert that the Corps failed to provide a 

factually supported estimate of the duration of wetland disruption and did 

not analyze the consequences of such disruption, each of which makes its 

decision not to require mitigation for pipeline construction impacts arbitrary.

CWA regulations require compensatory mitigation to “offset 

environmental losses resulting from unavoidable impacts” to wetlands 

authorized by the Corps’ permits. 33 C.F.R. § 332.3(a)(1). However, not all 

wetland impacts automatically require compensatory mitigation. With 

respect to temporary impacts, the Corps’ “[d]istrict engineers will determine 

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appropriate compensatory mitigation requirements for temporary impacts.” 

Compensatory Mitigation for Losses of Aquatic Resources, 73 Fed. Reg. 19,594, 

19,638 (Apr. 10, 2008). “What constitutes a temporary impact, and the need 

for compensatory mitigation, is determined on a case-by-case basis, 

depending on the specific circumstances of the project. The district engineer 

will determine the appropriate time interval for distinguishing between 

temporary and permanent impacts.” Id. at 19,607.

Here, the Corps determined that the pipeline construction impacts 

would be temporary and did not require compensatory mitigation. Under the 

project design, the pipelines will be constructed in sequence and part-by-part, 

with an eighteen-month gap between the completion of Pipeline 1 and the 

beginning of construction of Pipeline 2. In addition, the permit imposes 

significant requirements on the Developers to avoid and minimize wetland 

impacts, such as the requirement to use horizontal drilling to avoid impacts 

to major waterbody crossings and other wetland areas. The permit also 

provides for short construction periods. Pipeline installation activities on 

wetlands or water crossings are estimated to take three months at most, with 

many shorter crossings being completed more quickly. Other construction 

activities require even less time. The Corps determined that these permit 

conditions would result in the restoration of hydric soil and wetland 

hydrology functions within thirty days of work completion for each 

waterbody crossing. The Corps further determined, based on myriad 

scientific evidence, including microbial activity, flooding and soil saturation 

duration, and soil temperature, that vegetation would be restored within one 

growing season from the time of restoration. Given its estimation that it 

would take only one growing season to revegetate the restored areas, the 

Corps—in accordance with its typical policy—found the impacts temporary 

and determined compensatory mitigation was not required.

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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. The only evidence we have 

is the regulation itself, which provides that the Corps’ engineer 

“determine[s] the appropriate time interval for distinguishing between 

temporary and permanent impacts.” Id. Petitioners suggest the Corps’ 

approach could lead to absurd results in other situations, but the Corps is not 

bound to this approach in all instances. It is merely its typical policy, one that 

it chose to apply based on the “specific circumstances of the project.” Id.

Given the minimal construction period at each waterbody crossing, the 

Corps’ decision to evaluate project impacts from the point of restoration was 

not improper.

Petitioners also allege that the Corps failed to demonstrate that 

restoration would be complete within one year and that it contradicted the 

conclusion reached by the EIS and endorsed by the EPA and the U.S. Fish 

and Wildlife Service (“FWS”) that herbaceous vegetation would regenerate 

within one to three years.3 These arguments are not persuasive. Based on 

studies showing that herbaceous wetlands restored to pre-construction 

contours usually revegetate within one growing season, and the fact that the 

project location’s growing season is year-round, the Corps concluded that 

the project’s favorable conditions would ensure successful revegetation 

3 Petitioners briefly suggest that the Corps failed to consider the cumulative 

disruption that occurs from building two pipelines in sequence. However, the Corps 

evaluated this disruption and determined that such impacts would be temporary regardless 

of consecutive pipeline construction because of the special conditions included in the 

permit requiring extensive restoration activities.

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within one year after restoration is completed. Further, the EPA’s feedback 

cited by Petitioners was premised on an outdated version of the proposed 

project prior to the modified proposal in 2020 and before the Corps had 

approved the compensatory mitigation plan or established the permit special 

conditions to avoid and minimize wetland impacts. It is not inconsistent with 

the Corps’ ultimate conclusion. The EPA agrees that activities are typically 

temporary if they last “less than 12 months or a single growing season,” and 

nowhere in the record do the EPA or the FWS state a belief that revegetation 

will take longer than a year. 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. This court “must be 

‘most deferential’ to the agency where, as here, its decision is based upon its 

evaluation of complex scientific data within its technical expertise.” Sierra 

Club v. EPA, 939 F.3d 649, 680 (5th Cir. 2019) (quoting BCCA Appeal Grp. 

v. EPA, 355 F.3d 817, 824 (5th Cir. 2003)). The Corps has satisfied our 

deferential review of this issue.

Lastly, Petitioners argue that the Corps failed to address whether

these temporary impacts require compensatory mitigation, staking their 

claim primarily upon EPA comments suggesting that additional mitigation 

was needed.4 However, the EPA feedback Petitioners rely upon does not 

consider the approved compensatory mitigation plan or the special 

conditions of the permit because the comments are from 2015 and 2018—

4 Petitioners contend that the FWS also asserted that the pipeline construction 

impacts warranted compensatory mitigation but only point to notes from a 2018 

interagency meeting between the FERC, the Corps, and the FWS stating, without 

attribution to the FWS, that mitigation “may be required.” This does not undermine the 

Corps’ more recent conclusion that additional mitigation is not warranted, given the 

conditions embedded in the permit.

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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. Notably, special condition nine facilitates the 

Corps’ monitoring of restoration efforts by requiring the Developers to 

submit monitoring reports within sixty days of completing construction at 

each crossing, and special condition ten requires the Developers to undertake

additional restoration or compensatory mitigation if the Corps determines 

that wetlands have not been successfully restored to pre-construction 

conditions. Given these requirements, the Corps reasonably determined that 

these temporary impacts do not require compensatory mitigation. We defer 

to the Corps’ judgment in these matters, id., and we are satisfied that its 

decision was rational, see Waterworth, 420 F.3d at 445. Accordingly, we find 

that the Corps did not act arbitrarily in its consideration of and conclusions 

regarding the impacts of pipeline construction and the need for 

compensatory mitigation.

V.

For the foregoing reasons, the petition for review is DENIED.

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