IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-40181

Summary Calendar 

GULF COAST ROD, REEL AND GUN CLUB, INCORPORATED; 

GILCHRIST COMMUNITY ASSOCIATION, 

 Plaintiffs - Appellants 

v. 

UNITED STATES ARMY CORPS OF ENGINEERS; COLONEL 

CHRISTOPHER W. SALLESE, in his official capacity as District Engineer, 

Galveston District United States Army Corps of Engineers; LIEUTENANT 

GENERAL THOMAS P. BOSTICK, in his official capacity as Commander 

and Chief of Engineers, United States Army Corps of Engineers; JOHN M. 

MCHUGH, in his official capacity as Secretary of the Army, 

 Defendants - Appellees 

Appeal from the United States District Court

for the Southern District of Texas 

USDC No. 3:13-CV-126

Before STEWART, Chief Judge, and CLEMENT and SOUTHWICK, Circuit 

Judges. 

United States Court of Appeals

Fifth Circuit

FILED

January 19, 2017

Lyle W. Cayce

Clerk

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PER CURIAM:*

This case involves a challenge to the issuance of a Clean Water Act 

(“CWA”) permit under the Administrative Procedure Act (“APA”). Appellants 

oppose the decision by the U.S. Army Corps of Engineers (the “Corps”) to issue 

a permit allowing Texas’s General Land Office (the “GLO”) to close Rollover 

Pass, a man-made channel that connects East Bay and the Gulf of Mexico. 

Appellants’ claims on appeal concern whether the permitting process fulfilled 

the requirements of the National Environmental Policy Act (“NEPA”). After 

the parties submitted dueling motions for summary judgment, the district 

court granted summary judgment in favor of the Corps. We AFFIRM. 

I. FACTUAL & PROCEDURAL HISTORY

Rollover Pass cuts through the Bolivar Peninsula and connects East Bay, 

an extension of Galveston Bay, to the Gulf of Mexico. In 1955, Texas dug

Rollover Pass to allow fish and salt water from the Gulf of Mexico to more 

easily enter the bay. Due to the large number of fish that pass through the 

channel and its accessibility, Rollover Pass has become a popular destination 

for fishers. For decades, however, studies have shown that the pass has caused 

increased erosion along the peninsula. When Hurricane Ike devastated the 

area in 2008, the Texas Legislature appropriated money to close the pass to 

better protect the coast from erosion and environmental damage. The GLO 

commissioned a study on the impact of closing Rollover Pass, and the Corps 

adopted that study into their Environmental Assessment and Statement of 

Findings (“EA”). The GLO received a CWA Section 404 permit from the Corps 

to close Rollover Pass in 2012. 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

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Two organizations challenged the Corps’ issuance of the permit under 

the APA.1 First is Gulf Coast Rod, Reel, and Gun Club, Inc., a recreational 

organization that owns the land through which Rollover Pass was built. 

Second is Gilchrist Community Association, a local civic group that helps 

maintain the fishing facilities at Rollover Pass (collectively, “Appellants”). 

Relevant to this appeal, the suit alleged that the Corps’ EA was deficient under 

NEPA in two respects: (1) the EA failed to fully assess the cumulative impact 

that closing Rollover Pass would have on the salinity2 of East Bay, and (2) the 

EA did not adequately consider alternatives to closing the pass. Appellants 

sought to supplement the administrative record, and the district court allowed 

in some of the additional documents but not all. The district court’s decision 

to supplement the record is not on appeal. 

Both sides filed motions for summary judgment. After considering the 

cross-motions, the district court denied the Appellants’ motion and granted 

summary judgment in favor of the Corps. This appeal followed. 

II. STANDARD OF REVIEW 

We “review[] a grant of summary judgment de novo, applying the same 

standards as the district court.” Amrollah v. Napolitano, 710 F.3d 568, 570 

(5th Cir. 2013). The standard governing the Corps’ issuance of a Section 404

permit is set forth in the APA. See City of Shoreacres v. Waterworth, 420 F.3d 

440, 445 (5th Cir. 2005). Under the APA, the agency’s decision will be upheld 

unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in 

accordance with law.” 5 U.S.C. § 706(2)(A); see also La. Crawfish Producers 

Ass’n–W. v. Rowan, 463 F.3d 352, 355 (5th Cir. 2006). Federal Rule of Civil 

Procedure 56 provides the standard for summary judgment, but it is well 

 

1 Appellants also brought suit against the GLO and its commissioner but stipulated 

to their dismissal from the suit prior to the district court’s final disposition of this case.

2 Salinity is the concentration of dissolved salt in a body of water.

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settled that on a motion for summary judgment concerning agency action, the 

agency—not the court—is the fact finder. See, e.g., Girling Health Care, Inc. 

v. Shalala, 85 F.3d 211, 215 & n.17 (5th Cir. 1996)(quoting 10A Charles Allen 

Wright et al., Federal Practice and Procedure, § 2733 (2d ed. 1983)). Because 

of the technical nature of an agency’s decision, “[w]e must look at the decision 

not as a chemist, biologist, or statistician that we are qualified neither by 

training nor experience to be, but as a reviewing court exercising our narrowly 

defined duty of holding agencies to certain minimal standards of rationality.” 

Gulf Restoration Network v. U.S. Dep’t of Transp., 452 F.3d 362, 368 (5th Cir. 

2006) (quoting Avoyelles Sportsmen’s League v. Marsh, 715 F.2d 897, 905 (5th 

Cir. 1983)). “This deferential standard of review applies regardless of whether 

we are reviewing the Corps’ decision under the CWA or NEPA.” City of 

Shoreacres, 420 F.3d at 445. 

Appellants contend that the district court—relying on a district court 

case, City of Shoreacres v. Waterworth—misapplied the summary judgment 

standard because it considered the administrative record as a whole, without 

reweighing evidence. See 332 F. Supp. 2d 992, 1004 (S.D. Tex. 2004) aff’d, 420 

F.3d 440 (5th Cir. 2005). Appellants submit that the district court applied a 

summary judgment standard that was too deferential. The case cited by the 

district court echoes the principle that when reviewing agency action, the 

court’s “mandate is not to ‘weigh the evidence pro and con but to determine 

whether the agency decision was based on a consideration of relevant factors 

and whether there was a clear error of judgment.’” Hayward v. U.S. Dep’t of 

Labor, 536 F.3d 376, 380 (5th Cir. 2008)(quoting Delta Found, Inc. v. United 

States, 303 F.3d 551, 562 (5th Cir. 2002)). Appellants “present[] no compelling 

argument for changing this practice, [and] we decline the invitation to do so.” 

Girling, 85 F.3d at 215.

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III. ANALYSIS 

1. Cumulative Impact on Salinity Level3

Appellants first allege that the Corps failed to properly consider the 

cumulative impact that closing Rollover Pass would have on salinity levels. 

They aver that better scientific models were available than those adopted by 

the Corps. Instead of looking at multiseasonal averages of salinity, Appellants 

insist the Corps should have considered daily changes, as the existing 

TxBLEND model does. Further, the Corps allegedly failed to take into account 

the new Needmore Diversion’s impact, which will channel freshwater from 

Beaumont into East Bay upon completion. At bottom, Appellants believe these 

shortcomings led the Corps to overestimate the salinity of East Bay after the 

pass is closed, which could have negative impacts on aquatic species living in 

the bay. 

Ordinarily, before issuing a Section 404 permit, NEPA requires that the 

Corps prepare an Environmental Impact Statement (“EIS”). However, an EA 

may be prepared in order to determine whether the proposed action is 

significant enough to warrant an EIS. 40 C.F.R. § 1501.4. If the EA concludes

with a Finding of No Significant Impact, then the Corps has no further 

obligations under NEPA. Markle Interests, LLC v. U.S. Fish & Wildlife Serv., 

827 F.3d 452, 479 (5th Cir. 2016). The EA must assess the environmental 

 

3 We note that Appellants’ brief is devoid of any citation to the administrative record. 

Instead, Appellants cite primarily to their Amended Complaint, which the district court 

struck prior to the filing of summary judgment—a ruling that they do not appeal. Because 

Appellants fail to cite to portions of the record that support their claims, this court could 

conclude that Appellants have waived these issues. See Fed. R. App. P. 28(a)(8)(A); JTB 

Tools & Oilfield Servs., LLC v. United States, 831 F.3d 597, 601 (5th Cir. 2016). Nonetheless, 

we may consider such issues at our discretion. See United States v. Miranda, 248 F.3d 434, 

443–44 (5th Cir. 2001). We address each issue raised in turn. 

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impacts of a proposed action, including its cumulative impacts.4 See La. 

Crawfish Produces, 463 F.3d at 357–58; 40 C.F.R. § 1508.9. “Where conflicting 

evidence is before the agency, the agency and not the reviewing court has the 

discretion to accept or reject from the several sources of evidence.” Sabine 

River Auth. v. U.S. Dep’t of the Interior, 951 F.2d 669, 678 (5th Cir. 1992). Here, 

the Corps’ EA concluded that the closing of Rollover Pass did not create a 

significant impact as defined by NEPA and that its salinity model was 

sufficient. We agree. 

With regard to the Corps’ decision to use seasonal—instead of daily—

averages of freshwater entering the bay, the Corps considered and rejected 

using a daily model. It explained that the seasonal model “provided results not 

subject to local anomalies and episodic events which would obscure the more 

relevant trends with transient excursions.” Further, the seasonal models were 

less expensive and time consuming to construct than a model using daily data. 

The Corps’ model also took into account a significant amount of data that 

spanned more than seventy years. Because the Corps’ choice of model was 

reasoned and deliberate, we cannot say that it acted arbitrarily or capriciously. 

See La. Crawfish Producers, 463 F.3d at 355. 

Additionally, the Corps responded to concerns that the model failed to 

account for certain freshwater inflows into the bay. The Corps acknowledged 

this limitation, but it concluded that other freshwater sources would not have 

a significant impact on the study. This is because the freshwater sources 

already included make up the vast majority of all freshwater flowing into the 

bay. For instance, the Trinity River alone accounts for sixty to seventy percent

 

4 See 40 C.F.R. § 1508.7 (defining cumulative impact as “the impact on the 

environment which results from the incremental impact of the action when added to other 

past, present, and reasonably foreseeable future actions regardless of what agency . . . or 

person undertakes such other actions. Cumulative impacts can result from individually 

minor but collectively significant actions taking place over a period of time”).

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of all freshwater entering the system. However, in response to public 

comments, the study expanded the area that was modeled to more accurately 

assess the salinity level. Even after taking into account this larger area, the 

Corps still concluded that salinity would remain within an acceptable range. 

Concerning the Needmore Diversion specifically, the Corps chose not to 

account for it because it “is not expected to have any appreciable impact on [] 

salinity.” The Corps explained that the diversion will only operate

“intermittently” and “during times of regionally heavy rainfall.” Since the 

diversion would only operate during periods of heavy rainfall, all other 

freshwater inflows would increase too, so the model already accounts for these 

short periods of reduced salinity. 

As the district court noted, even though the model proposed by 

Appellants “may well be better, the Corps has provided reasoned justifications 

for why it chose its model[,] and it did . . . consider freshwater inflows.” See 

Sabine River Auth., 951 F.2d at 678 (stating that the agency has discretion 

when choosing from sources of evidence). The Corps’ extensive consideration of 

the cumulative impact closing the pass could have on East Bay’s salinity

convinces us that the agency’s action was not arbitrary or capricious. See La. 

Crawfish Producers, 463 F.3d at 355.

2. Practicable Alternatives

Appellants additionally claim that the district court erred when it held 

that the Corps adequately considered alternatives to closing Rollover Pass. 

NEPA requires that proposals “affecting the quality of the human 

environment” contain a detailed statement of “alternatives to the proposed 

action.” 42 U.S.C. § 4332(C)(iii). Regulations make it clear that this 

requirement applies to an EA. 40 C.F.R. § 1508.9(b). “An alternative is 

practicable if it is available and capable of being done after taking into 

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consideration cost, existing technology, and logistics in light of overall project 

purposes.” Id. § 230.10(a)(2). 

The purposes for the project must not be so narrow that they foreclose 

the consideration of reasonable alternatives. See Sierra Club v. Fed. Highway 

Admin., 435 F. App’x 368, 374 (5th Cir. 2011). Here, the Corps condensed the 

project purposes into four objectives that any alternative must also meet: (1) 

present a long-term solution for beach erosion in the area of Rollover Pass; (2) 

eliminate sediment transport into East Bay and Rollover Bay; (3) return the 

area to its more natural salinity regime; and (4) effectively stabilize the fill 

material, minimize water quality impacts, minimize impacts to existing 

bridges and utilities, and use compatible fill materials.5

Appellants focus on two alternatives they allege were not considered in 

the Corps’ analysis: (1) the construction of jetties and (2) the construction of a 

gate at the mouth of Rollover Pass. The Corps considered and rejected six 

alternatives to closing Rollover Pass, including one no-action alternative. In 

each case, the Corps found that at least one of the stated purposes of the project 

would not be met. 

The Corps explained that it did not consider the use of jetties as an 

alternative because the GLO had considered—and rejected—the use of jetties 

 

5 Appellants argued before the district court that the Corps had “define[d] the 

objectives of its action in terms so unreasonably narrow that only one alternative . . . would 

accomplish the goals of the agency’s action.” Sierra Club, 435 F. App’x at 374 (quotation 

omitted). Aside from a couple of unbriefed, summary allegations, Appellants do not appear 

to raise this issue on appeal. And even these unbriefed allegations are equivocal as to 

whether Appellants are seeking review of this issue. Appellants do not urge us to reconsider 

the breadth of the stated goals, nor do they point us to any authority for the proposition that 

these goals were impermissibly restrictive. Issues not adequately briefed are waived. See 

United States v. Elashyi, 554 F.3d 480, 494 n.6 (5th Cir. 2008). In any event, we consider the 

district court’s analysis of these goals thorough and agree that “[n]othing in the record 

suggests that [these objectives were] artificially narrowed in order to defeat potential 

alternatives.” 

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prior to its application for a Section 404 permit. The Corps agreed with the 

GLO’s conclusion that “jetties would have built up sand on one side and starved 

the other side of sand; shunting the excess sand into offshore waters and away 

from the beach.” This court has upheld as adequate a consideration of 

alternatives that were proposed but rejected at a preliminary stage, even when 

reviewing the more rigorous EIS. See Miss. River Basin Alliance v. Westphal, 

230 F.3d 170, 177 (5th Cir. 2000). 

The other alternative suggested by Appellants is constructing a gate at 

the mouth of Rollover Pass. It is not clear that this alternative was ever 

proposed to the Corps. Indeed, Appellants concede that “[m]aybe no one put 

this simple proposition to the Corps during permit review.” Parties 

challenging compliance with NEPA 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. Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 764–

765 (2004). Regardless, Appellants did not raise the possibility of constructing 

a gate before the district court, so we need not consider it. See Hardman v. 

Colvin, 820 F.3d 142, 152 (5th Cir. 2016)(stating that when reviewing a grant 

of summary judgment, we generally do not review matters not presented to the 

district court). Additionally, we note that the construction of a gate is similar 

to the modification of an existing weir,6 which the Corps rejected because it 

“would not prevent sedimentation from entering the pass,” and it “would not 

result in [the] desired lowering of salinity or improvement of water quality.” 

“Although the relevant regulation does mandate the discussion of 

alternatives, the regulation does not require that all proposed alternatives, no 

matter their merit, be discussed in the EA.” La. Crawfish Producers, 463 F.3d 

 

6 A low dam built to regulate the level and flow of water.

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at 356 (citing 40 C.F.R. § 1508.9(b)). The Corps considered and rejected a 

number of alternatives to closing Rollover Pass. Thus, we conclude that its 

decision to issue a permit for closing the pass was not arbitrary or capricious. 

See La. Crawfish Producers, 463 F.3d at 355. 

IV. CONCLUSION 

The district court’s grant of summary judgment in favor of the Corps is 

AFFIRMED. 

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