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IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

CIVIL ACTION NO. 1:20-CV-460

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

NATURE OF THE CASE

1. This is an action for declaratory and injunctive relief challenging the U.S. Army 

Corps of Engineers’ (the “Corps” or “USACE”) permitting the discharge of dredge and fill 

material into waters of the United States (“WOTUS”) in the construction of the Permian

Highway Pipeline (hereafter “the pipeline” or “PHP”), a proposed natural gas pipeline 

approximately 428.54 miles long from the Waha Interconnect in Reeves County, Texas, to the 

SIERRA CLUB,

Plaintiff,

v.

UNITED STATES ARMY CORPS OF 

ENGINEERS; Lieutenant General Todd 

T. Semonite (in his official capacity as 

Commanding General and Chief of 

Engineers of the U.S. Army Corps of 

Engineers); Colonel Kenneth N. Reed (in 

his official capacity as District 

Commander of the U.S. Army Corps of 

Engineers Fort Worth District); Colonel 

Timothy R. Vail(in his official capacity as 

District Commander of the U.S. Army 

Corps of Engineers Galveston District); 

Brandon W. Mobley (in his official 

capacity as Chief, Regulatory Division, 

U.S. Army Corps of Engineers); and 

Kristi McMillan (in her official capacity 

as Leader, Central Evaluation Unit, U.S. 

Army Corps of Engineers). 

Defendants.

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delivery point in Colorado County, Texas. Because the pipeline will cross a number of 

jurisdictional waters of the United States, and discharge dredge and fill material into them, it is 

proceeding pursuant to “verifications” the Corps issued under Nationwide Permit 12 (“NWP 

12”). 

2. On April 15, 2020, however, the United States District Court for Montana vacated 

NWP 12 for the Corps’ failure to consult with the U.S. Fish and Wildlife Service (the “Service”

or “FWS”) under Endangered Species Act (“ESA”) section 7 prior to issuing NWP 12. Northern 

Plains Resource Council et. al. v. U.S. Army Corps of Engineers, D. Mont. no. 19-44-GF- BMM 

(April 15, 2020). Although the Corps gave notice to its district engineers not to issue new 

authorizations for projects nationwide, the Corps has not stopped the dredge and fill activities of 

the PHP. It is allowing the dredge and fill by PHP to proceed without a permit.

3. Because of the vacatur, the verifications the Corps issued on February 13, 2020 to 

the entity constructing the PHP, Permian Highway Pipeline LLC, allowing it to proceed under 

NWP 12 are no longer valid. 

4. The verifications are invalid for the additional reason that they were issued 

without compliance with the National Environmental Policy Act (“NEPA”), NEPA, 42 U.S.C. § 

4321 et seq., and applicable NEPA regulations. Specifically, the Corps failed to prepare an 

environmental impact statement or environmental assessment for its incorporation of the Terms 

and Conditions of the Service’s February 3, 2020 biological opinion and incidental take 

statement into the verifications, which constitutes a “major federal action” that requires NEPA 

analysis. Sierra Club v. U.S. Army Corps of Engineers, 803 F.3d 31, 45-47 (D.C. Cir. 2015); 40 

C.F.R. §1508.18. The Corps’ violation of NEPA means it failed to take the required “hard look” 

at the environmental impacts of its implementation of the terms and conditions through the 

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verifications and did not consider their direct, indirect and cumulative impacts on the 

jurisdictional waters or the Corps action areas. 

5. Additionally, under the Service’s regulations, “reinitiation of consultation is 

required and shall be requested by the Federal agency or by the Service,” where “new 

information reveals effects of the action that may affect listed species . . . in a manner or to an 

extent not previously considered.” 50 C.F.R. § 402.16. The Corps has not, however, reinitiated 

consultation on the verifications in light of the vacatur of NWP 12. 

6. The Corps’ actions as set forth herein were arbitrary and capricious, an abuse of 

discretion or not in accordance with law contrary to the Administrative Procedure Act (“APA”), 

5 U.S.C. §706(2)(A). The Corps’ actions also constitute agency action unlawfully withheld or 

unreasonably delayed contrary to the APA, 5 U.S.C. §706(1). Plaintiffs request that the Corps 

verifications be vacated, and the court issue an injunction halting the PHP’s dredge and fill of 

WOTUS, unless and until the Corps issues a valid permit for this activity.

JURISDICTION AND VENUE

7. This Court has jurisdiction under 28 U.S.C. § 1331 (questions of federal law); 28 

U.S.C. §§ 1346 (United States as a defendant); and the APA, 5 U.S.C. §§ 701-06. The relief 

requested is authorized under 28 U.S.C. §§ 2201 (declaratory judgment), 2202, and 1361 (action 

to compel an officer of the United States); and 5 U.S.C. §§ 704–06.

8. Venue is proper in this judicial district and in this Court under 28 U.S.C. § 

1391(e)(1)(A) and (B). Defendants are a federal agency and officers who reside in this judicial 

district; a substantial part of the events or omissions giving rise to the claims occurred here; and 

a portion of the PHP and the Corps’ jurisdictional waters and Corps’ action area at issue are in 

this district. 

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9. This case is related to City of Austin, et. al. v. Kinder Morgan Texas 

Pipeline, LLC, W.D. Tex. no. 1:20-cv-138-RP pending before this court, which involves claims 

concerning Nationwide Permit 12, the Service’s biological opinion and NEPA. 

PARTIES

PLAINTIFF:

10. Plaintiff Sierra Club was founded in 1892 and is the nation’s oldest grassroots 

environmental organization. Sierra Club is incorporated in California, and has its headquarters in 

Oakland, California. It has more than 784,000 members nationwide, including more than 27,000 

members in Texas in its Lone Star Chapter. Sierra Club is dedicated to the protection and 

preservation of the natural and human environment, including but not limited to wetlands, rivers, 

streams, forests and wildlife, including threatened and endangered species and their habitats.

Sierra Club’s mission is to explore, enjoy and protect the wild places of the earth; to practice and 

promote the responsible use of the earth’s ecosystems and resources; and to educate and enlist 

humanity to protect and restore the quality of the natural and human environments.

11. Sierra Club has members in Texas whose real property, recreational, aesthetic, 

business, and/or environmental interests have been, are being, and will be adversely affected by 

the Defendants’ actions as set forth herein. Sierra Club brings this action on behalf of itself and 

its members.

12. Sierra Club and its members monitor the use of waters of the United States and 

compliance with the law respecting these water bodies, educate their members and the public 

concerning the management of these water bodies, and advocate policies and practices that 

protect the natural value of these water bodies. 

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13. Sierra Club members will suffer concrete injury from the construction and 

operation of the PHP and its impacts on the Corps’ jurisdictional waters and the USACE action 

areas without adequate environmental review or adequate opportunities for public notice and 

comment. Members of the Sierra Club use and enjoyment of jurisdictional waters and the 

USACE Action Areas described in the Corps’ verification and the Service’s biological opinion 

would be diminished by the PHP. Sierra Club members own property that will be crossed by the 

pipeline and will be subjected to the noise, air pollution, sediment runoff, clearing of vegetation 

and aesthetic damage attendant to the construction and heavy machinery. Sierra Club members 

also use the waterways and surrounding areas that stand to be filled and deforested by the 

construction and operation of the PHP for recreation and business purposes such as wildlife and 

bird viewing, fishing, hiking, and camping.

14. The acts and omissions alleged here further harm Sierra Club’s members’ 

environmental, aesthetic, and welfare interest in using and enjoying the natural environment in 

areas adversely affected by the construction of the PHP. The construction of the PHP is causing 

harm to lands, plant life, aquatic life, and natural ecosystems that Sierra Club members use and 

enjoy, thus harming their recreational and aesthetic interests.

15. Sierra Club and its members are and will be injured as a result of the Defendants’ 

authorization of the Project without the preparation of the appropriate environmental analyses 

required by NEPA, thereby depriving Sierra Club and its members of procedural rights and 

protections to which they would otherwise be entitled. Sierra Club and its members regularly 

comment on NEPA documents and rely on information and data contained in these documents to 

plan their activities, to prepare and inform their participation concerning agency actions, and to 

disseminate the information to their members/citizens and the general public for their 

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information and use. These activities are impaired when, as in this case, the Corps fails to 

prepare NEPA documents and give public notice and opportunity for participation as required. 

16. Sierra Club members would attend public hearings, offer comments, and 

otherwise remain actively involved in any public review process for the PHP should Defendants 

offer one. The procedural and informational interests and organizational purposes of Sierra Club 

and its members are and will be directly injured by the Defendants’ failure to comply with the 

statutes and regulations cited in this Complaint.

17. The Corps’ failures also hamper Sierra Club’s ability to perform certain 

programmatic functions essential to its mission, such as ensuring that federal agencies properly 

consider public health and environmental protections in issuing any final agency action, and 

educating the public about those impacts.

18. Sierra Club members use, enjoy, or depend on the water bodies affected by the 

Corps’ NWP 12, as well as its verifications of the PHP, and rely on these for clean water, healthy 

forests and wetland ecosystems, presence of wildlife, and outdoor recreation and business 

activities of various kinds, including nature study, photography, commercial guiding, birdwatching, fishing, canoeing, hunting, backpacking, camping, solitude, and a variety of other 

activities.

19. Sierra Club’s and its members’ protectable health, recreational, aesthetic, 

procedural, informational, and organizational interests have been and continue to be harmed by 

the Corps’ failure to halt discharge of dredge and fill materials by the PHP; and its failure to 

fulfill its legal obligation to fully consider the environmental and public health impacts of PHP 

construction and dredge and fill activities in jurisdictional waters in the Corps’ action area, as 

required by NEPA. 

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20. If the Corps complied with the vacatur of NWP 12 and with NEPA, as the law 

requires, it would redress Sierra Club’s members’ injuries. The Corps would not be permitting 

the unlawful discharge of dredge and fill material into the jurisdictional waters. And Sierra Club 

members would be able to participate in any NEPA process. The agency would be required to 

consider and respond to Sierra Club’s members’ environmental, public health, and aesthetic 

concerns, including additional public health and environmental conditions on further 

construction or denying or rescinding the verifications.

21. The Defendants’ actions at issue in this case pose an imminent risk of harm and 

cause harm to Plaintiff’s interests. Plaintiff has exhausted their administrative remedies or has no 

administrative remedies for the actions alleged. The actions challenged in this complaint are 

either final actions or actions unlawfully held subject to judicial review under the APA. An 

actual, justiciable controversy exists between Plaintiff and Defendants. Plaintiff has standing for 

the claims made herein; and Plaintiff has no adequate remedy at law.

DEFENDANTS:

22. Defendant United States Army Corps of Engineers is the federal agency charged 

with administering permits under section 404 of the Clean Water Act for discharge of dredged or 

fill material into the waters of the United States. The Corps is headquartered in Washington, 

D.C. The Corps has district offices throughout the country, including the Fort Worth and 

Galveston districts.

23. Defendant Todd T. Semonite is Commanding General and Chief of Engineers of 

the U.S. Army Corps of Engineers in Washington, D.C. and is designated to act for the Secretary 

of the Army. Plaintiff brings this action against him in his official capacity only. He is the federal 

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officer personally responsible for compliance with any injunction related to the Corps that this 

Court issues.

24. Defendant Kenneth N. Reed is the District Commander of the U.S. Army Corps 

of Engineers, Fort Worth District. Plaintiff brings this action against him in his official capacity 

only.

25. Defendant Col. Timothy R. Vail is the District Commander of the U.S. Army 

Corps of Engineers, Galveston District. Plaintiff brings this action against him in his official 

capacity only.

26. Defendant Brandon W. Mobley is the Chief, Regulatory Division for the Corps 

who signed the Fort Worth District NWP 12 verification for PHP at issue in this lawsuit. Plaintiff 

brings this action against him in his official capacity only.

27. Defendant Kristi McMillan is the Leader, Central Evaluation Unit for the Corps 

who signed the Galveston District NWP 12 verification for PHP at issue in this lawsuit. Plaintiff 

brings this action against her in her official capacity only.

STATUTORY AND REGULATORY FRAMEWORK

The Clean Water Act and Nationwide Permit 12 

28. The Clean Water Act was enacted by Congress in 1972 to “restore and maintain 

the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). To 

achieve this goal, section 404 of the Clean Water Act prohibits the discharge of any pollutant, 

including dredged spoil or other fill material, into navigable waters unless authorized by a 

permit. Id. § 1344.

29. Section 404 of the Clean Water Act gives the Corps primary responsibility for 

permitting construction activities that involve dredge and fill of U.S. waters. 33 U.S.C. § 1344. 

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The Corps oversees the section 404 permit process and must comply with guidelines 

promulgated by the U.S. Environmental Protection Agency (“EPA”), which are incorporated into 

the Corps’ own regulations. Id. § 1344(b)(1); 33 C.F.R. §§ 320.4(b)(4), 325.2(a)(6). The 

underlying intent behind the guidelines, known as the 404(b)(1) guidelines and set forth at 40 

C.F.R. Part 230 subparts B through J, is that dredged or fill material should not be discharged if 

it will result in an unacceptable impact on the aquatic ecosystem. 40 C.F.R. § 230.1(c).

30. The guidelines provide that no discharge of dredged or fill material shall be 

permitted for an individual project: (1) if there is a practicable alternative to the proposed 

discharge; (2) if the discharge causes or contributes to violations of applicable state water quality 

standards; (3) if the discharge will cause or contribute to significant degradation of the 

environment; and (4) unless all appropriate steps have been taken to minimize potential adverse 

impacts. 40 C.F.R. § 230.10. The Corps’ regulations also require that destruction of wetlands is 

to be avoided to the extent practicable. 33 C.F.R. § 320.4(r).

31. When issuing an individual section 404 permit for a specific project, the Corps 

must comply with the requirements of NEPA, which are set forth below.

32. An alternative to the individual 404 permit process is the nationwide permit 

program. Section 404(e) allows the Corps to, “issue general permits on a State, regional, or 

nationwide basis for any category of activities involving discharges of dredged or fill material if 

the Secretary determines that the activities in such category are similar in nature, will cause only 

minimal adverse environmental effects when performed separately, and will have only minimal 

cumulative adverse effect on the environment.” 33 U.S.C. § 1344(e)(1).

33. One such nationwide permit is Nationwide Permit 12, which authorizes 

“[a]ctivities required for the construction, maintenance, repair, and removal of utility lines and 

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associated facilities [including natural gas pipelines] in waters of the United States, provided the 

activity does not result in the loss of greater than 1/2-acre of waters of the United States for each 

single and complete project.” 82 Fed. Reg. at 1985 (2017). NWP 12 also authorizes discharges 

into waters of the United States for the construction of related substation facilities, access roads, 

and overhead utility lines, “provided the [related] activity, in combination with all other activities 

included in one single and complete project, does not result in the loss of greater than 1/2-acre of 

waters of the United States.” Id.

34. Permittees may proceed with activities authorized by NWP 12 without notifying 

the Corps. See 33 C.F.R. §330.1(e)(1). However, under certain “general conditions,” permittees 

must notify the Corps’ district engineers of their project through submission of a preconstruction 

notification and await verification before the project may proceed under the NWP. Id. §§ 

330.1(e)(1), 330.6(a).

35. Under General Condition 18(c) to the Corp’s nationwide permits, non-federal 

permittees or applicants must submit a preconstruction notification to the Corps district engineer 

if the activity “might affect” any listed species or designated critical habitat, and “shall not begin 

work” on the activity until notified by the district engineer that the requirements of the ESA have 

been satisfied. 82 Fed. Reg. at 1999-2000. The preconstruction notification “must include the 

name(s) of the endangered or threatened species that might be affected by the proposed activity 

or that utilize the designated critical habitat that might be affected,” and the district engineer will 

then “determine whether the proposed activity ‘may affect’ or will have ‘no effect’ [on] listed 

species and designated critical habitat.” 82 Fed. Reg. at 1999 (2017). If a “may effect” 

determination is made, the Corps will undertake Section 7 consultation with the FWS or National 

Marine Fisheries Service or both as appropriate.

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36. On April 15 2020 the U.S. District Court for Montana vacated NWP 12. Northern 

Plains Resource Council et. al. v. U.S. Army Corps of Engineers, D. Mont. no. 19-44-GF- BMM 

(April 15, 2020). On April 17, 2020 Corps’ headquarters emailed the Corps’ district chiefs that: 

“[E]ffective immediately, Corps Districts should not verify any pending PCNs for compliance 

with NWP12 under 33 C.F.R. 330.6 until further direction from this office is issued.”

The Endangered Species Act and Section 7 Consultation

37. The Endangered Species Act requires federal agencies, through consultation with 

the Service, to “insure that any action authorized, funded, or carried out by the agency . . . is not 

likely to jeopardize the continued existence of” any listed species or adversely modify its critical 

habitat. 16 U.S.C. § 1536(a)(2). “Action” is defined to include all activities or programs of any 

kind authorized, funded, or carried out by federal agencies, including actions directly or 

indirectly causing modifications to the land, water, or air. 50 C.F.R. § 402.02. An agency must 

initiate consultation with the Service whenever it takes an action that may affect a listed species, 

subject to limited exceptions. 50 C.F.R. § 402.14(a).

38. The result of the interagency consultation process is a biological opinion that 

evaluates impacts to listed species to determine if the action is likely to jeopardize the species’ 

existence or adversely modify critical habitat. If the conclusion of the opinion results in a 

determination of jeopardy or adverse modification, then the opinion identifies changes to the 

action to avoid these effects. 16 U.S.C. § 1536(b). 

39. If the Service concludes that an action is not likely to jeopardize listed species, the 

Service provides the action agency with a written statement, commonly known as an “incidental 

take statement” (“ITS”). See 16 U.S.C. § 1536 (b)(4)(i); 50 C.F.R. § 402.14(i). The ITS must 

specify “the impact of such incidental taking”; specify the “reasonable and prudent measures” 

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that are “necessary or appropriate to minimize such impact”; and “terms and conditions” that the 

action agency must comply with to implement the reasonable and prudent measures. 16 U.S.C. § 

1536(b)(4)(i),(ii),(iv); 50 C.F.R. § 402.14(i)(1)(i),(ii), (iv).

40. To comply with the ESA for NWP 12-authorized activities, the Corps applies 

NWP General Condition 18(a), which states that “[n]o activity is authorized under any NWP 

which ‘may affect’ a listed species or critical habitat, unless ESA section 7 consultation 

addressing the effects of the proposed activity has been completed.” 82 Fed. Reg. at 1999. 

Similarly, General Condition 32 provides that “the permittee cannot begin the activity until 

receiving written notification from the Corps that there is ‘no effect’ on listed species.” Id. at 

2003 (emphasis added).

41. In the April 15, 2020 decision, the U.S. District Court for Montana held that the 

Corps had failed to consult with the U.S. Fish and Wildlife Service on the nationwide permit as 

required under ESA section 7 before issuing NWP 12. Northern Plains Resource Council et. al.,

D. Mont. no. 19-44-GF- BMM at 18, 21, 26. “NWP 12 is vacated pending completion of the 

consultation process and compliance with all environmental statutes and regulations.” Id. at 26. 

42. Additionally, the Service’s biological opinion and accompanying incidental take 

statement are not effective unless and until the Corps issues all required Clean Water Act 

authorizations for the project. Biological Opinion at 52. The Corps’ verifications and the 

associated biological opinion and incidental take statement for the PHP are explicitly conditioned 

on compliance with the terms and conditions of NWP 12. SWF-2018-00227 at 1-2 (Fort Worth 

District verification) and SWG-2018-00737 at 1-2 (Galveston District verification); see 

also NWP 12 Final Decision Document at 65-66 (requiring compliance with NWP conditions 

and “the safeguards” discussed in the NWP “to ensure that [any action] do[es] not violate the 

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ESA”). As a result of the vacatur of NWP 12, the underlying “safeguards” and “conditions” 

incorporated into the NWP 12 are likewise invalid and unenforceable. Because the terms and 

conditions of the agency action now differ from the assumptions underlying the BiOp, the Corps 

must reinitiate consultation to ensure they do not violate the ESA. See 50 C.F.R. § 402.16 

(“reinitiation of consultation is required and shall be requested by the Federal agency or by the 

Service,” where “new information reveals effects of the action that may affect listed species . . . 

in a manner or to an extent not previously considered.”). 

The National Environmental Policy Act

43. NEPA is our “basic national charter” for environmental protection. 40 C.F.R. § 

1500.1. Among the statute’s goals are to “insure that environmental information is available to 

public officials and citizens before decisions are made and actions are taken”; and to “help public 

officials make decisions that are based on [an] understanding of environmental consequences, 

and take actions that protect, restore, and enhance the environment.” Id. § 1500.1(b)-(c).

44. To achieve these objectives, NEPA requires all agencies of the federal 

government to prepare an environmental impact statement for all “major Federal actions 

significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C).

According to regulations promulgated by the Council on Environmental Quality, an agency 

created by Congress to implement NEPA, the term “major Federal action” includes “actions with 

effects that may be major and which are potentially subject to Federal control and 

responsibility.” 40 C.F.R. § 1508.18. Major federal actions include “actions approved by permit 

or other regulatory decision.” 40 C.F.R. § 1508.18(b)(4). “Major reinforces but does not have a 

meaning independent of significantly.” 40 C.F.R. § 1508.18. 

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45. The environmental impact statement must describe, among other things: (1) the 

environmental impact of the proposed action, (2) any adverse environmental effects that cannot 

be avoided should the proposal be implemented, and (3) alternatives to the proposed action. Id. § 

4332(2)(C)(i)-(iii). The alternatives analysis is the heart of any environmental impacts statement 

and must, among other things, rigorously explore and objectively evaluate all reasonable 

alternatives, including a no action alternative, and include appropriate mitigation measures to 

provide informed public participation and agency decisionmaking. 40 C.F.R. § 1502.14. 

46. To determine whether a proposed action significantly affects the environment, 

and whether an environmental impact statement is required, the federal agency may first prepare 

an environmental assessment. 40 C.F.R. § 1508.9 (2010). An environmental assessment must 

provide sufficient evidence and analysis to determine whether to prepare an EIS. Id. The agency 

must take a “hard look” at the relevant environmental concerns and alternatives to the proposed 

action.

47. If the agency concludes in an environmental assessment that a project may have 

significant impacts on the environment, then an environmental impact statement must be 

prepared. 40 C.F.R. § 1501.4. To determine whether a proposed action may significantly affect 

the environment, the agency must consider both the context and intensity of the proposed action, 

including whether the project will take place in “ecologically critical areas,” and whether the 

project will affect endangered species. 40 C.F.R. § 1508.27 (a) & (b).

48. If an environmental assessment concludes that there are no potentially significant 

impacts to the environment, the federal agency is not required to prepare an environmental 

impact statement but it must provide a detailed statement of reasons why the project’s impacts 

are insignificant and issue a finding of no significant impact (“FONSI”). 40 C.F.R. § 1508.13. If 

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the agency issues an environmental assessment and FONSI, it must make a convincing case for a 

finding of no significant impact on the environment.

49. The Council on Environmental Quality regulations require a give and take 

between an agency and members of the public in the NEPA process. See 40 C.F.R. §§ 1500.1(b) 

(2010) (“public scrutiny [is] essential”), § 1500.2(d) (2010) (the agency must “encourage and 

facilitate public involvement”), § 1506.6 (2010) (the agency must “[m]ake diligent efforts to 

involve the public” in preparing environmental documents, give “public notice of ... the 

availability of environmental documents so as to inform those persons ... who may be interested 

or affected,” and “solicit appropriate information from the public.”). The regulations require 

federal agencies to give the public as much information as is practicable, so that the public has a 

sufficient basis to comment on, and address, the factors that the agency must consider in 

preparing an environmental assessment. 40 C.F.R. §§ 1501.4 (2010). When preparing an 

environmental impact statement, the agency must provide the public and affected persons or 

organizations with an opportunity to comment, and must assess, consider, and respond to those 

comments. 40 C.F.R §§ 1503.1, 1503.4 (2010).

50. When the Corps incorporates the “terms and conditions” of a biological opinion 

and incidental take statement issued by the Service under ESA section 7 into its NWP 12 

“verification” or “permit,”, this constitutes a “major federal action” on which NEPA analysis (an 

EIS or EA) is required. Sierra Club v. U.S. Army Corps of Engineers, 803 F.3d 31, 45-47 (DC 

Cir. 2015); 40 C.F.R. §1508.18.

51. Although the Corps prepared a “Decision Document” as part of the nationwide 

permit process that purports to be a NEPA analysis for its nationwide permits, including NWP 

12, it did not perform any NEPA analysis for the incorporation of terms and conditions of the 

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PHP biological opinion and incidental take statement into its verification(s) for the PHP. As a 

result, it has not performed a NEPA analysis of the direct, indirect, and cumulative impacts 

associated with its implementation of the terms and conditions of the PHP biological opinion and 

incidental take statement, or taken the “hard look” at these impacts, which NEPA requires. See

40 C.F.R. §§ 1502.1, 1502.16(a), (b), 1508.7, 1508.25(c).

52. In the Montana district court opinion vacating NWP 12, the court held it would be 

necessary for the Corps to supplement its Decision Document for NWP 12 after the new ESA 

section 7 consultation was completed, to take into account the new information that would come 

from such a consultation. Northern Plains Resource Council et. al., no. 19-44-GF- BMM at 22-

23; and see 40 C.F.R. §1502.9(b)(ii) (requiring supplemental environmental impact statements 

for “significant new circumstances or information”); see also 50 C.F.R. § 402.16 (“Reinitiation 

of consultation is required and shall be requested” where “new information reveals effects of the 

action that may affect listed species or critical habitat in a manner or to an extent not previously 

considered”).

The Administrative Procedure Act

53. The Administrative Procedure Act, 5 U.S.C. §§ 701-06, provides for judicial 

review of agency actions such as those at issue here. A reviewing court shall hold unlawful and 

set aside any agency action found to be arbitrary, capricious, an abuse of discretion, or otherwise 

not in accordance with law. 5 U.S.C. § 706(2)(A).

54. The APA authorizes suit by “[a] person suffering legal wrong because of agency 

action, or adversely affected or aggrieved by agency action within the meaning of a relevant 

statute.” 5 U.S.C. § 702. “[A]gency action” includes “the whole or a part of an agency rule, 

order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. § 

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551(13). Under the APA, a “reviewing court shall . . . compel agency action unlawfully withheld 

or unreasonably delayed.” 5 U.S.C. § 706(1).

STATEMENT OF FACTS

55. The proposed Permian Highway Pipeline natural gas pipeline [the “pipeline,” 

“project” or “PHP”] would be approximately 428.54 miles long and extend from the Waha 

Interconnect in Reeves County, Texas, to the delivery point in Colorado County, Texas. The 

pipeline consists of a 42-inch outer diameter natural gas pipeline to be constructed primarily by 

conventional trenching methods. Horizontal directional drilling or horizontal bore construction 

methods will be used under certain river crossings. The project will also require the construction 

and operation of a variety of ancillary facilities and sites associated with the pipeline. Bulldozers, 

track hoes, and conventional bore and directional drilling/boring equipment will be used.

Construction began on the project in February or March, 2020 and is expected to take 

approximately one year to complete. 

56. The PHP will cross and involve the dredge and fill of numerous permanent and 

intermittent WOTUS. This includes causing the discharge of dredged or fill material 

into approximately 449 waters along the pipeline route. Hundreds of these can proceed under 

NWP 12 without notification to the Corps [hereinafter referred to as the “self-certification 

process.”].

57. Approximately eighty-six (86) of the proposed WOTUS crossings within the Fort 

Worth District and forty-three (43) of the proposed WOTUS crossings within the Galveston 

District require pre-construction notification and review under NWP 12 and General Condition 

18 related to endangered species. The Corps proposed “verifications” of the pipeline pursuant to 

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Nationwide Permit 12 and General Condition 18 to authorize discharges of dredge or fill material 

into these WOTUS. 

58. Specifically the Corps proposed Project Numbers SWF-2018-00227 (Fort Worth 

District verification) and SWG-2018-00737 (Galveston District verification), for the PHP within 

the Corps Fort Worth and Galveston districts respectively. The Corps' Fort Worth and Galveston 

districts’ requested formal ESA section 7 consultation with the Service on September 18, 2019, 

and September 24, 2019, respectively. 

59. On February 3, 2020 the Service issued a biological opinion for its review of the 

Corps’ verifications for dredge and fill by the PHP, in accordance with section 7 of the 

Endangered Species Act. This review was for effects on the federally endangered goldencheeked warbler (Setophaga [Dendroica] chrysoparia), Houston toad (Bufo houstonensis), and 

the federally threatened Tobusch fishhook cactus (Sclerocactus brevihamatus ssp. tobuschii). 

The Service also provided its concurrence with the Corps' determination that the proposed action 

may affect, but is not likely to adversely affect, the Austin blind salamander (Eurycea 

waterlooensis) and Barton Springs salamander (Ewycea sosorum).

60. The “action area” covered by the Service’s biological opinion was defined as “all 

areas to be affected directly or indirectly by the federal action and not merely the immediate area 

involved in the action.” 50 CFR 402.02. This included Project Workspaces, Analysis Area, 

USACE Action Area, and the Applicant Action Area.

61. The Service defined the “USACE Action Area” as follows:

The USACE Action Area consists of those portions of the action area under the 

Corps regulatory control due to impacts to WOTUS, and are limited to those 

sections of the project where NWP 12 is required and NWP General Condition 

18, Endangered Species, is triggered. Condition 18 is triggered in the USACE 

Action Area where pipeline activities requiring Corps permitting may affect 

federally listed species. Therefore, the USACE Action Area is limited to those 

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particular portions of the project where both NWP 12 authorization is required 

and Condition 18 is triggered as a result. In those locations defined as USACE 

Action Areas, the Corps’ regulatory boundary distance is based either on the 

extent of the likely species effects in the Corps’ Ft. Worth District and inflection 

distance in the Corps’ Galveston District. Total acreage of USACE Action Area 

per Corps districts are: Fort Worth (1,204.3 acres), and Galveston (923.7 acres).

62. After reviewing the status of the golden-cheeked warbler, Houston toad, and the 

Tobusch fishhook cactus, the environmental baseline within the action area, the effects of the 

proposed action, and cumulative effects, the Service’s biological opinion was that the action, as 

proposed, is not likely to jeopardize the continued existence of these species; and that no 

designated critical habitat is located within the action area; therefore, none will be affected. 

63. Based on its “no-jeopardy” determination, and to comply with ESA section 

7(b)(4), 16 U.S.C. §1536(b)(4)(i), the Service issued an “incidental take statement” to the Corps. 

This incidental take statement is included in the same document as the February 3, 2020 

biological opinion. Included in the incidental take provisions for the “take” of the listed species, 

“reasonable and prudent measures” that are “necessary or appropriate to minimize” the impact 

on the species; and “terms and conditions” that the action agency must comply with to 

implement the reasonable and prudent measures. 16 U.S.C. § 1536(b)(4)(i)(ii),(iv); 50 C.F.R. § 

402.14(i)(1)(i)(ii), (iv). 

64. To obtain protection against any unlawful “taking” under Section 9 of the 

Endangered Species Act, 16 U.S.C. §1538, the Service required the Corps to incorporate the 

“terms and conditions” of the incidental take statement into its verifications: 

The measures described below are nondiscretionary and must be implemented by 

the U.S. Army Corps of Engineers (Corps) and/or the Applicant (Permian 

Highway Pipeline, LLC.), as applicable. With respect to the USACE Action Area, 

the Corps must make the measures described below that are applicable to the 

USACE Action Area binding conditions of any authorization issued by the Corps 

to implement the project covered by this biological opinion.

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65. On February 13, 2020 the Corps issued its final verifications for Project Numbers 

SWF-2018-00227 (Fort Worth District verification) and SWG-2018-00737 (Galveston District 

verification). These constitute final agency actions under the APA 5 U.S.C. §704. 

66. The Corps complied with the biological opinion and incorporated the terms and 

conditions into its final verifications.

67. From the Corps’ Fort Worth verification at page 2: 

The terms and conditions of the [biological opinion] that are applicable to 

USACE Action Area(s) in the Fort Worth District are incorporated by reference in 

this permit. Failure to comply with the terms and conditions that are applicable to 

the USACE action area within the Fort Worth District would constitute noncompliance with your USACE permit.

68. From the Corps’ Galveston verification at page 2:

Your authorization under this Corps permit is conditional upon your 

implementing and abiding by all project elements identified in the enclosed FWS 

[biological opinion] that are subject to the USACE Action Area(s) and your 

compliance with all of the mandatory terms and conditions associated with 

incidental take of the attached FWS [biological opinion] pertaining to the USACE 

Action Area(s), which terms and conditions are incorporated by reference in this 

permit. Failure to comply with the terms and conditions that are applicable to the 

USACE action area within the Galveston District would constitute noncompliance with your USACE permit.

60. The Service’s “terms and conditions” referred to in the verifications include 

numerous measures that will have environmental impacts, to Corps jurisdictional waters and to 

the USACE action area, in addition to their effects on the endangered species. The terms and 

conditions include incorporation of “all” conservation measures described within the PHP’s 

biological assessment dated August, 2019 and the biological opinion. The “conservation 

measures” in the biological opinion incorporated into the terms and conditions include herbicide 

and pesticide application measures, oil spill prevention and response measures, an inadvertent 

return mitigation plan for horizontal directional drilling, and environmental awareness training. 

Case 1:20-cv-00460-RP Document 1 Filed 04/30/20 Page 20 of 27
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In addition, the biological opinion’s conservation measures include extensive “void mitigation” 

measures to protect against impacts to the Edwards aquifer (and the two species of endangered 

salamanders), and provides that construction vehicles may cross waters, provides for bypass 

pumping and culverts and other measures applicable to water crossings. These measures are all 

incorporated into the Corps verifications.

61. Additionally, the “conservation measures” in the August, 2019 biological 

assessment submitted by the Corps to the Service, include for the golden warbler: the applicant 

purchasing 1,363 acres for the warbler and transferring this to the Service; avoiding construction 

activities in the warbler habitat 3/1-7/31 but allowing construction activities adjacent to it; and 

Oak wilt prevention measures such as not cutting oak trees from February-June. It also involves 

fencing and monitoring for the Houston toad and collection and translocation of the Tobusch 

fishhook cactus before construction. These measures are all incorporated into the Corps 

verifications.

62. The Corps did not prepare any NEPA analysis, whether an environmental impact 

statement or environmental assessment, for its implementation of the terms and conditions 

through their incorporation into the verifications.

63. The permittee Permian Highway Pipeline LLC has begun construction of the PHP 

and dredge and fill under NWP’s self-certification process or the Corps’ issued verifications or 

both. Its actions are having or will have an adverse environmental impact on the jurisdictional 

waters and the USACE action area; and these actions constitute a commitment of resources that 

may limit the Corps’ choice of reasonable alternatives. See 40 C.F.R. §1506.1.

64. Upon information and belief, Permian Highway Pipeline LLC is continuing with 

dredge and fill activities in construction of the PHP despite the vacatur of NWP 12. Although the 

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Corps directed its district chiefs to not issue further verifications, it did not direct them to halt the 

PHP dredge and fill activities. It did not halt PHP’s use of self-certification or activities under its 

verifications. The Corps is allowing PHP to discharge dredge and fill material without a permit. 

This is contrary to the prohibition on discharges without a permit in Clean Water Act §§ 301(a) 

and 404; 33 U.S.C. §§ 1311(a) and 1344. 

65. The vacatur of NWP 12 also means the PHP Clean Water Act verifications are no 

longer valid. See, e.g. Galveston verification at 1: “The NWP Verification is valid until the NWP 

is modified, reissued, or revoked.” Fort Worth District verification at 3: “Our verification . . . 

under this nationwide permit is valid . . . unless prior to that date the nationwide permit is 

suspended, revoked, or modified . . .”

66. The Corps has authority to modify, suspend, or revoke a case specific activity’s 

authorization under a nationwide permit, including for changes in circumstances relating to the 

authorized activity since the nationwide permit itself was issued. 33 C.F.R. §§330.4(e), 330.5(c) 

or (d), and 330.6(b). The vacatur of NWP 12 constitutes such a change, however the Corps has 

not suspended or revoked the verifications. 

67. The Corps’ action or failure to act is permitting environmental impacts on

jurisdictional waters and USACE action areas. These impacts include but are not limited to 

trench cut crossings, installing a 42-inch-diameter pipeline below the ground, with attendant 

clearing of trees and vegetation, removing topsoil, filling wetlands, clearing and maintaining the 

right-of-way, diverting waters, dumping trench materials into them, and horizontal directional 

drilling activities and discharges. These activities impact soils and sediments, surface water and 

groundwater, wetlands, vegetation, wildlife, fisheries, land use, recreation, visual areas, air 

quality and noise, and risks from spills from equipment and cumulative impacts. 

Case 1:20-cv-00460-RP Document 1 Filed 04/30/20 Page 22 of 27
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CLAIMS FOR RELIEF

CLAIM I

The Corps has not Complied with the Vacatur of NWP 12 and Suspended or Revoked the 

Verifications or Re-initiated ESA Section 7 Consultation

68. Plaintiffs allege each and every allegation contained in the preceding paragraphs.

69. The PHP’s discharge of dredge and fill materials into WOTUS are proceeding 

under NWP 12. NWP 12 was vacated on April 15 2020. Northern Plains Resource Council et. 

al. v. U.S. Army Corps of Engineers, D. Mont. no. 19-44-GF- BMM (April 15, 2020). Therefore, 

PHP’s dredge and fill activities are proceeding without a valid permit. This includes discharges 

of dredge and fill material into the “self-certification” waters and waters covered by the Permian 

Highway verifications.

70. Because they were issued pursuant to the vacated NWP 12, the February 13, 2020 

verifications issued to Permian Highway Pipeline LLC for the dredge and fill activities are no 

longer valid. 

71. In response to the vacatur, the Corps instructed its divisions not to issue future 

verifications; however it issued no such instruction concerning the Permian Highway

verifications. The Corps has failed to suspend or revoke the Permian Highway verifications. 

72. In addition, because of the vacatur of NWP 12, the Corps was required to reinitiate ESA section 7 consultation under 50 C.F.R. §402.16 for the verifications, but has not 

done so.

73. The Corps’ failure to comply with the vacatur of NWP 12, its failure to suspend 

or revoke the February 13, 2020 verifications, and its failure to re-initiate ESA section 7 

consultation for the verifications, are arbitrary and capricious, an abuse of discretion, in excess of 

statutory authority, or limitations, or short of statutory right, without observance of procedure 

Case 1:20-cv-00460-RP Document 1 Filed 04/30/20 Page 23 of 27
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required by law, or otherwise not in accordance with law contrary to the APA, 5 U.S.C. § 

706(2)(A), (C), & (D), and constitute agency action unlawfully withheld or unreasonably 

delayed contrary to the APA, 5 U.S.C. §706(1).

CLAIM II

The Corps violated NEPA, Applicable Regulations, and the APA by Failing to Perform a

NEPA Analysis for its Incorporation of the Service’s Terms and Conditions into the Fort 

Worth Verification

74. Plaintiffs allege each and every allegation contained in the preceding paragraphs. 

75. When the Corps incorporates the terms and conditions of a biological opinion and 

incidental take statement into its NWP 12 verification or permit, as it did here, this constitutes a 

“major federal action” on which NEPA analysis is required. 42 U.S.C. § 4332(2)(C); 40 C.F.R. 

§1508.18; Sierra Club v. U.S. Army Corps of Engineers, 803 F.3d 31, 45-47 (DC Cir. 2015).

This NEPA analysis must be performed for the limited Corps’ action verifying or permitting the 

water crossings and impacts on the jurisdictional waters as opposed to the entire pipeline, id., 

accordingly Plaintiff seeks only that limited analysis in this claim. 

76. The Corps did not perform a NEPA analysis for the incorporation of terms and 

conditions of the PHP biological opinion and incidental take statement into the Fort Worth 

District’s February 13, 2020 NWP 12 verification. 

77. The Corps’ Fort Worth verification and its failure to perform the required NEPA 

analysis violate NEPA and the NEPA regulations and are arbitrary and capricious, an abuse of 

discretion, or otherwise not in accordance with law. 5 U.S.C. § 706(2)(A). The Corps failure to 

perform the required NEPA analysis also constitutes agency action unlawfully withheld or 

unreasonably delayed contrary to the APA, 5 U.S.C. §706(1).

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CLAIM III

The Corps violated NEPA, Applicable Regulations, and the APA by Failing to Perform a

NEPA Analysis for its Incorporation of the Service’s Terms and Conditions into the 

Galveston Verification

78. Plaintiffs allege each and every allegation contained in the preceding paragraphs. 

79. When the Corps incorporates the terms and conditions of a biological opinion and 

incidental take statement into its NWP 12 verification or permit, as it did here, this constitutes a 

“major federal action” on which NEPA analysis is required. 42 U.S.C. § 4332(2)(C); 40 C.F.R. 

§1508.18; Sierra Club v. U.S. Army Corps of Engineers, 803 F.3d 31, 45-47 (DC Cir. 2015). 

This NEPA analysis must be performed for the limited Corps’ action verifying or permitting the 

water crossings and impacts on the jurisdictional waters as opposed to the entire pipeline, id. , 

accordingly Plaintiff seeks only that limited analysis in this claim. 

80. The Corps did not perform a NEPA analysis for the incorporation of terms and 

conditions of the PHP biological opinion and incidental take statement into the Galveston 

District’s February 13, 2020 NWP 12 verification. 

81. The Corps’ Galveston verification and its failure to perform the required NEPA 

analysis violate NEPA and the NEPA regulations and are arbitrary and capricious, an abuse of 

discretion, or otherwise not in accordance with law. 5 U.S.C. § 706(2)(A). The Corps failure to 

perform the required NEPA analysis also constitutes agency action unlawfully withheld or 

unreasonably delayed contrary to the APA, 5 U.S.C. §706(1). 

PRAYER FOR RELIEF

WHEREFORE, Plaintiff requests this Court to find for Plaintiff and to enter a judgment: 

a) Declaring that due to the vacatur of NWP 12, the PHP dredge and fill activities 

are unlawful; and the Corps’ February 13, 2020 Fort Worth District Verification 

and Galveston District Verification are not valid; 

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b) Declaring the Corps’ failure to suspend or revoke the verifications is arbitrary and 

capricious, an abuse of discretion, in excess of statutory authority, or limitations, 

or short of statutory right, without observance of procedure required by law, or 

otherwise not in accordance with law contrary to the APA, 5 U.S.C. § 706(2)(A), 

(C), & (D), and constitutes agency action unlawfully withheld or unreasonably 

delayed contrary to the APA, 5 U.S.C. §706(1).

c) Declaring the Corps’ failure to re-initiate ESA section 7 consultation on the 

verifications is arbitrary and capricious, an abuse of discretion, in excess of 

statutory authority, or limitations, or short of statutory right, without observance 

of procedure required by law, or otherwise not in accordance with law contrary to 

the APA, 5 U.S.C. § 706(2)(A), (C), & (D), and constitutes agency action 

unlawfully withheld or unreasonably delayed contrary to the APA, 5 U.S.C. 

§706(1).

d) Declaring the Corps’ February 13, 2020 Fort Worth District Verification and 

Galveston District Verification were issued in violation of NEPA, the NEPA 

regulations, and the APA; and setting aside or vacating the verifications pursuant 

to the APA, 5 U.S.C. §706(2)(A); ; 

e) Enjoining any PHP activities in jurisdictional waters or in the USACE Action 

Area in reliance on the Corps’ verifications during the NEPA process that would 

have an adverse environmental impact or limit the choice of reasonable 

alternatives, contrary to 40 C.F.R. 1506.1; 

f) Enjoining any PHP activities in reliance on NWP 12, the Corps’ verifications, or 

the Services’ incidental take statement, including any dredging, filling or other 

Case 1:20-cv-00460-RP Document 1 Filed 04/30/20 Page 26 of 27
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alterations of waters of the United States, unless and until Defendants fully 

comply with the CWA, NEPA, ESA and the APA; 

g) Awarding Plaintiff its attorneys’ fees, expenses and costs; and

h) Providing for such other relief as the Court deems just and appropriate.

DATED: April 30, 2020 Respectfully submitted,

/s/ Mary Whittle

MARY WHITTLE

Texas Bar No. 24033336

MARK GUERRERO

Texas State Bar No. 24032377

GUERRERO & WHITTLE, PLLC

2630 Exposition Blvd., Ste. 102

Austin, Texas 78703

Telephone: (512) 605-2300

Fax: (512) 222-5280

mary@gwjustice.com

mark@gwjustice.com

JOSHUA D. SMITH

Ore. Bar No. 071757 (pro hac vice motion to be filed)

SIERRA CLUB

2101 Webster Street, Suite 1300

Oakland, CA 94612

Telephone: (415) 977-5560

Fax: 

joshua.smith@sierraclub.org

ERIC E. HUBER

Colo. Bar No. 40664 (pro hac vice motion to be filed)

REBECCA L. MCCREARY 

Colo. Bar No. 54097 (pro hac vice motion to be filed)

SIERRA CLUB

1650 38th Street, Suite 102W

Boulder, Colorado 80301

Telephone: (303) 449-5595

Fax: (303) 449-6520

eric.huber@sierraclub.org

rebecca.mccreary@sierraclub.org

ATTORNEYS FOR PLAINTIFFS

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