PUBLISH 

UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT

SIERRA CLUB, INC., CLEAN 

ENERGY FUTURE OKLAHOMA, 

EAST TEXAS SUB REGIONAL 

PLANNING COMMISSION, 

 Plaintiffs - Appellants, 

v. 

LIEUTENANT GENERAL 

THOMAS P. BOSTICK, in his 

official capacity as Commanding 

General and Chief of Engineers of 

the U.S. Army Corps of 

Engineers; MAJOR GENERAL 

MICHAEL J. WALSH, in his 

official capacity as U.S. Army 

Commanding General for Civil 

and Emergency Operations; 

COLONEL RICHARD PRATT, in 

his official capacity as Tulsa 

District Commander of U.S. Army 

Corps of Engineers; COLONEL 

RICHARD PARNELL, in his 

official capacity as Galveston 

District Engineer of the U.S. 

Army Corps of Engineers;1

UNITED STATES ARMY CORPS 

OF ENGINEERS, 

No. 14-6099 

 

 Pursuant to Fed. R. App. P. 43(c)(2) Colonel Pratt is substituted for 

Colonel Teague and Colonel Parnell is substituted for Colonel Sallesse. 

FILED 

United States Court of Appeals 

Tenth Circuit 

May 29, 2015

Elisabeth A. Shumaker 

Clerk of Court

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 1 
2 

 Defendants - Appellees, 

 and 

TRANSCANADA KEYSTONE 

PIPELINE LP, a Deleware limited 

partnership; TRANSCANADA 

CORPORATION, a Canadian public 

company; INTERSTATE 

NATURAL GAS ASSOCIATION, 

AMERICAN GAS ASSOCIATION, 

ASSOCIATION OF OIL PIPE 

LINES, AMERICAN PETROLEUM 

INSTITUTE, UTILITY WATER 

ACT GROUP, 

Intervenors - Appellees. 

Douglas P. Hayes, Sierra Club, Boulder, Colorado (Eric E. Huber, Sierra 

Club, Boulder, Colorado, with him on the briefs), for Appellants. 

 

David C. Shilton, U.S. Department of Justice, Washington, D.C. (Sam 

Hirsch, Acting Assistant Attorney General, Michele Walter, Maureen E. 

Rudolph, and Ty Bair, U.S. Department of Justice, Washington, D.C.; and 

Ann P. Navaro, Assistant Chief Counsel and Milton S. Boyd, Assistant 

Counsel, U.S. Army Corps of Engineers, with him on the brief), for 

Appellees. 

Peter R. Steenland, Sidley Austin LLP, Washington, D.C. (Lauren C. 

Freeman, Lisa E. Jones, Sidley Austin LLP, Washington, D.C.; and Deidre 

G. Duncan, Andrew J. Turner, and Karma B. Brown, Hunton & Williams 

LLP, Washington, D.C., with him on the brief), for Intervenors-Appellees. 

Appeal from the United States District Court 

for the Western District of Oklahoma 

(D.C. No. 5:12-cv-00742-R) 

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 2 
3 

Before BACHARACH, Circuit Judge, BALDOCK, Senior Circuit Judge, 

and McHUGH, Circuit Judge. 

BACHARACH, Circuit Judge. 

 This case involves the authority of the U.S. Army Corps of Engineers 

to issue nationwide permits under § 404(e) of the Clean Water Act. These 

permits authorize activities involving discharge of dredged or fill material 

in U.S. waters and wetlands. See 33 U.S.C. § 1344(e) (2012). Exercising 

this permitting authority, the Corps issued Nationwide Permit 12, which 

allows anyone to construct utility lines in U.S. waters “provided the 

activity does not result in the loss of greater than 1⁄2 acre of [U.S. waters] 

for each single and complete project.” Reissuance of Nationwide Permits, 

77 Fed. Reg. 10,184, 10,271 (Feb. 21, 2012).1

 

 TransCanada Corporation proposed to rely on the nationwide permit 

to build an oil pipeline, the Gulf Coast Pipeline,2

 which would run 

approximately 485 miles and cross over 2,000 waterways. The Corps issued 

letters verifying that Nationwide Permit 12 would cover the proposed 

 

1

 The Corps has defined the term “single and complete project” to 

mean “the total project proposed or accomplished by one owner/developer 

or partnership or other association of owners/developers.” 33 C.F.R. 

§ 330.2(i) (2012). For linear projects like utility lines, the Corps considers 

each crossing of a waterway to be a “single and complete project” as long 

as these crossings are “separate and distant.” Id. 

2

 The Gulf Coast Pipeline is the southern segment of a larger pipeline 

project called the “Keystone XL Pipeline.” 

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 3 
4 

construction. Shortly thereafter, TransCanada began constructing the 

pipeline, which has since been completed and is currently transporting oil. 

 Three environmental groups (Sierra Club, Inc.; Clean Energy Future 

Oklahoma; and East Texas Sub Regional Planning Commission) have 

challenged the validity of the nationwide permit and verification letters. 

The district court rejected these challenges and entered judgment for the 

defendants. 

 In this appeal, we address and reject three sets of claims: 

 Claims Involving the National Environmental Policy Act 

(NEPA): The environmental groups argue that the Corps 

violated NEPA by issuing the nationwide permit without 

considering the risk of oil spills and the cumulative 

environmental impacts of pipelines. These arguments are 

waived. 

The environmental groups also argue that the Corps issued the 

verification letters without conducting a NEPA analysis. We 

conclude that this analysis was not necessary at the verification 

stage. 

 Claims Involving the Clean Water Act: According to the 

environmental groups, the nationwide permit violates the Clean 

Water Act by (1) effectively authorizing activities with morethan-minimal environmental impacts and (2) unlawfully 

deferring a portion of the minimal-impacts analysis to projectlevel personnel. We reject both arguments. The environmental 

groups have not shown that the permit authorizes activities 

with more-than-minimal impacts, and the Corps has permissibly 

interpreted the statute to allow partial deferral of its minimalimpacts analysis. 

 Claims Involving the Nationwide Permit 12: Finally, the 

environmental groups contend that the Corps incorrectly 

verified compliance with the nationwide permit without 

analyzing the cumulative effects or documenting the analysis of 

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 4 
5 

cumulative effects. We reject this contention. Corps officials 

did not need to include a cumulative-effects analysis in the 

letters, and the record shows that officials conducted the 

necessary analysis. 

Based on our conclusions, we affirm the entry of judgment in favor of the 

defendants.3

I. Standard of Review 

 We review the challenges under the Administrative Procedure Act 

(APA). See 5 U.S.C. §§ 701-706 (2012). In applying this standard, we will 

set aside agency actions that are “arbitrary, capricious, an abuse of 

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

(2012). 

 Review under the APA is narrow: “[T]he agency need only 

demonstrate that it considered relevant factors and alternatives . . . and 

that the choice it made was reasonable based on that consideration.” Mt. 

Evans Co. v. Madigan, 14 F.3d 1444, 1453 (10th Cir. 1994). 

 

3

 The intervenors have raised prudential mootness. Prudential 

mootness concerns a court’s discretion, not its power, to grant relief. 

S. Utah Wilderness Alliance v. Smith, 110 F.3d 724, 727 (10th Cir. 1997). 

We elect not to address prudential mootness, as we conclude the claims fail 

on other grounds. See Hillsdale Envtl. Loss Prevention, Inc. v. U.S. Army 

Corps of Eng’rs, 702 F.3d 1156, 1167 (10th Cir. 2012) (“As for prudential 

mootness, it is within the court’s discretion to decline to address an issue 

on prudential mootness grounds.”). 

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 5 
6 

II. NEPA 

 The environmental groups make two arguments to challenge the 

district court’s disposition of the NEPA claims: 

1. The Corps’ environmental analysis is deficient because the 

agency failed to consider the risk of oil spills and the 

cumulative impacts of pipelines. 

2. The Corps failed to conduct an environmental analysis when 

verifying that the pipeline was permissible under the 

nationwide permit. 

We reject both arguments. The environmental groups waived their claims 

involving failure to address oil spills and cumulative impacts, and the 

Corps was not required to conduct an environmental analysis when 

verifying compliance with the nationwide permit. 

A. Requirements of NEPA 

 NEPA requires an agency to take a “hard look” at the environmental 

impacts of proposed actions. Robertson v. Methow Valley Citizens Council, 

490 U.S. 332, 350 (1989). In taking this “hard look,” the agency must take 

appropriate steps: If the venture involves a “major Federal action” that 

would “significantly affect[] the quality of the human environment,” the 

agency must prepare a detailed environmental impact statement. 42 U.S.C. 

§ 4332(2)(C) (2012). But if the future effects are unclear, the agency can 

prepare an environmental assessment instead of a more detailed 

environmental impact statement. Dep’t of Transp. v. Pub. Citizen, 541 U.S. 

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 6 
7 

752, 757 (2004). If the environmental assessment shows that the impact 

would be insignificant, the agency need not provide any further 

environmental report.4 Id. at 757-58. 

B. Issuance of Nationwide Permit 12 

The Corps prepared an environmental assessment of activities 

permitted under Nationwide Permit 12, which is challenged by the 

environmental groups. They contend the Corps unlawfully failed to 

consider 

 the risk of oil spills associated with pipelines and 

 the cumulative impacts of pipelines. 

We conclude that these challenges are waived. 

1. Waiver: The General Rule and the Pertinent Exceptions 

 Parties challenging an agency’s compliance with NEPA must 

ordinarily raise relevant objections during the public comment period. 

Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 764-65 (2004). But two 

exceptions exist. First, commenters need not point out an environmental 

assessment’s flaw if it is “obvious.” Id. at 765. Second, a commenter does 

not waive an issue if it is otherwise brought to the agency’s attention. 

Forest Guardians v. U.S. Forest Serv., 495 F.3d 1162, 1170 (10th Cir. 

2007).

 

4

 Instead, the agency is to make a “finding of no significant impact.” 

Pub. Citizen, 541 U.S. at 757-58. 

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 7 
8 

2. Risk of Oil Spills 

The environmental groups concede that no commenter raised the oilspill issue. See Appellants’ Reply Brief at 11. Nonetheless, the 

environmental groups contend that the issue is not waived because 

 the risk of oil spills is obvious, and 

 the Corps knew about the risk of oil spills when issuing the 

nationwide permit. 

We reject both of these contentions.5

 The environmental groups have not 

shown an obvious deficiency in the Corps’ environmental assessment, and 

the Corps’ knowledge of oil-spill risks does not relate to a deficiency in 

the Corps’ assessment for the construction, maintenance, and repair of 

utility lines. 

a. Obviousness

 The environmental groups assert that the oil-spill issue is not waived 

because the risk of oil spills is obvious. We reject this contention. 

 

5 The environmental groups also state that until this project, 

installation of all major oil pipelines had undergone a project-level NEPA 

review. Based on this statement, the environmental groups say that they (1) 

did not perceive a need to make comments when the Corps considered the 

nationwide permit, and (2) should not be penalized for raising the issue in 

connection with the Keystone XL Pipeline proceedings rather than as an 

objection to Nationwide Permit 12. For the sake of argument, we can 

assume the environmental groups are correct. They appear to imply that 

they should not be subjected to the ordinary rules of exhaustion, requiring 

comment to the Corps as it was considering whether to issue the 

nationwide permit. But the environmental groups have not provided 

authority or analysis that would justify an exception to the ordinary rules 

of exhaustion based on the alleged change in practice.

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 8 
9 

 To qualify for this exception, the environmental groups must show 

that the omission of any discussion of oil-spill risks entailed an obvious 

flaw in the environmental assessment. The environmental groups argue that 

the risk of oil spills is obvious. But that is not the groups’ burden. The 

environmental groups must show that the assessment for the construction, 

maintenance and repair of utility lines contained an obvious flaw, not that 

the agency failed to discuss impacts of an obvious risk associated with 

certain activity. See Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 765 

(2004) (stating that “an [environmental assessment’s] . . . flaws might be 

so obvious that there is no need for a commenter to point them out”). The 

fact that pipelines create a risk of spillage does not mean that the alleged 

deficiency in the Corps’ environmental assessment for the construction, 

maintenance, and repair of utility lines would have been obvious. 

 Nationwide Permit 12 authorized the discharge of dredged or fill 

material in the construction, maintenance, and repair of a wide variety of 

utility lines, including lines to transmit gas, cable, electricity, telephone 

calls, radio transmissions, sewage, and oil. Appellants’ App. at 488-89; 

Reissuance of Nationwide Permits, 77 Fed. Reg. 10,184, at 10,271-72 (Feb. 

21, 2012). In light of the variety of utility lines involved, the Corps 

focused on the actions that it authorized (discharge of dredged and fill 

material in the construction, maintenance, and repair of utility lines) rather 

than the eventual operation of the utility lines. See Appellants’ App. at 528 

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 9 
10 

(assessing the environmental consequences of the activities authorized by 

Nationwide Permit 12). Once the utility lines were completed, each utility 

would seek approval from the pertinent regulatory body with jurisdiction 

over operations. For example, TransCanada would need to seek and obtain 

authorization from the Pipeline and Hazardous Materials Safety 

Administration, which had jurisdiction over the operation of oil pipelines. 

See 49 C.F.R. §§ 195.401-402 (2012) (stating the requirements for 

operation of pipelines). Upon construction of the pipeline, TransCanada 

could not transport oil until it complied with the Pipeline and Hazardous 

Materials Safety Administration’s requirements addressing the risk of oil 

spills. 49 C.F.R. § 194.7 (2012). 

 The environmental groups argue that the Corps’ environmental 

assessment should have been broader, examining the risks from the utility 

lines’ operations as well as their construction. But this criticism relates to 

the merits of the NEPA claim rather than the obviousness of the alleged 

deficiency to the Corps.6

 The Corps set out to consider all categories of 

environmental risks from the activities authorized under Nationwide Permit 

12 (as well as the cumulative impacts of other activities affecting the 

 

6 The environmental groups argue that some other courts require the 

Corps to consider the risk of oil spills. See Ocean Advocates v. U.S. Army 

Corps of Eng’rs, 402 F.3d 846, 868 (9th Cir. 2005); Sierra Club v. Sigler, 

695 F.2d 957, 962 (5th Cir. 1983). This argument relates to the merits 

rather than exhaustion. Because the oil-spill claim is unexhausted, we do 

not reach the merits.

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 10 
11 

nation’s aquatic resources). Appellants’ App. at 528, 530. In considering 

these categories of environmental risks, the Corps distinguished between 

the activities that it authorized under the nationwide permit (construction, 

maintenance, and repair of utility lines) and the utility lines’ future 

operations. If that view was too restrictive, the deficiency would not have 

been obvious to the Corps, for TransCanada could not begin operations 

until it submitted a suitable plan to the Pipeline and Hazardous Materials 

Safety Administration to address the risk of oil spills. 49 C.F.R. § 194.7 

(2012). 

 The environmental groups argue that the risk of oil spills would have 

been obvious to the Corps because of comments submitted to agencies 

concerning the proposed Keystone XL project. But these comments would 

have led the Corps to believe that the risk of oil spills fell within the 

domain of other agencies, for all of the comments about oil spills had been 

directed to the Pipeline and Hazardous Materials Safety Administration 

(rather than the Corps). See Appellants’ App. at 1180-92. In these 

comments, no one questioned the Corps’ focus on environmental risks from 

the activities authorized under the nationwide permits (rather than the 

environmental risks from future operations). 

 Because the Corps ordinarily confined its environmental assessments 

to impacts from the activities authorized under the nationwide permit 

(construction, maintenance, and repair of utility lines), rather than the 

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 11 
12 

eventual operation of these utility lines, the risk of oil spills would not 

have alerted the Corps to an obvious deficiency in its environmental 

assessment. 

b. Independent Knowledge of the Risk/Otherwise Brought to 

 the Corps’ Attention 

 The environmental groups also assert the oil-spill issue is not waived 

because the Corps knew about spill risks when issuing the nationwide 

permit. We reject this argument. Even if the Corps knew about spill risks, 

this knowledge would not have prevented a waiver. 

 We have recognized an exception to waiver when an issue is brought 

to the agency’s attention. See p. 7, above. The Ninth Circuit Court of 

Appeals has equated this exception and the obviousness exception. See

Barnes v. U.S. Dep’t of Transp., 655 F.3d 1124, 1132 (9th Cir. 2011) 

(“This court has interpreted the ‘so obvious’ standard as requiring that the 

agency have independent knowledge of the issues that concern 

petitioners.”). We need not decide whether to adopt the Ninth Circuit’s 

view, as we have elsewhere concluded that the risk of oil spills would not 

have created an obvious deficiency in the Corps’ environmental analysis of 

the construction, maintenance, and repair of utility lines. 

 Even if we were to adopt the Ninth Circuit’s approach, its application 

here would make little sense. The Corps’ “independent knowledge” would 

be based on its role as a cooperating agency in the State Department’s 

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 12 
13 

environmental impact statement for the Keystone XL Pipeline. This 

environmental impact statement contained ample discussion of 

environmental risks involving oil spills. But the environmental impact 

statement addressed these risks as the domain of a separate agency: the 

Pipeline and Hazardous Materials Safety Administration. See Appellants’ 

App. at 1990 (“[Pipeline and Hazardous Materials Safety Administration] 

is responsible for regulations that require safe operations of hazardous 

liquid pipelines to protect human health and the environment from 

unplanned pipeline incidents.”). None of the commenters suggested that the 

Corps had any responsibility to address the risk of oil spills. 

 We may assume, for the sake of argument, that the Corps knew that 

issuance of the nationwide permit could lead to installation of oil 

pipelines, which in turn could create environmental risks from oil spills. 

How would that knowledge have mattered to the Corps? It considered that 

risk to fall within another agency’s responsibility. Regardless of whether 

that view was correct, it went unchallenged in the public comments for the 

issuance of Nationwide Permit 12 and the State Department’s consideration 

of the Keystone XL Pipeline. Thus, there would have been little reason for 

the Corps to consider oil spills in its environmental assessment. 

 In these circumstances, the Corps’ alleged knowledge about oil spills 

would not have avoided a waiver. 

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 13 
14 

3. Cumulative Impacts 

The environmental groups also argue the Corps violated NEPA by 

failing to consider the cumulative impacts of oil pipelines. This argument 

is also waived, as no commenter objected to the Corps’ assessment on this 

ground. 

As discussed, parties challenging an agency’s compliance with NEPA 

must raise relevant objections during the comment period. See p. 7, above. 

These objections must specifically raise the issue presented on appeal; if 

the objections do not raise the issue, it is waived. See Ariz. Pub. Serv. Co. 

v. E.P.A., 562 F.3d 1116, 1127 (10th Cir. 2009) (stating that the appellant 

could not “rely on general or vague commentary . . . to avoid the 

established principles of waiver” (citing Appalachian Power Co. v. E.P.A., 

251 F.3d 1026, 1036 (D.C. Cir. 2001))). 

Some commenters mentioned cumulative impacts in other contexts, 

such as aquatic areas. But no one discussed a need for the Corps to 

consider the cumulative impacts on dry-land areas. 

For example, some commenters objected to the use of multiple 

permits for multiple water crossings associated with one linear project. See

Appellants’ App. at 480-81. In the view of these commenters, the use of 

multiple permits might “prevent the Corps from assessing the [overall] 

cumulative effects” of one linear project. Id. at 481. Another commenter 

requested that the Corps apply the half-acre limit to entire linear projects 

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 14 
15 

(rather than each water crossing) to ensure the Corps assessed “cumulative 

effects” of the entire project. Id. at 413. 

Though these comments used variations of the phrase “cumulative 

impact,” the commenters were focusing on the cumulative impact on 

aquatic areas―not dry-land areas. As a result, this objection was waived. 

See Ariz. Pub. Serv. Co. v. E.P.A., 562 F.3d 1116, 1127 (10th Cir. 2009) 

(holding that a party could not challenge the rationality of an agency rule 

because no party had specifically attacked the rule’s rationality during the 

comment period).7

4. Summary 

 Accordingly, we conclude that the environmental groups have waived 

their claims that the Corps violated NEPA by failing to consider oil-spill 

risks and cumulative impacts of pipelines. 

C. Verification Under the Nationwide Permit 

The environmental groups also argue the Corps should have prepared 

a NEPA analysis for the entire Gulf Coast Pipeline before issuing the 

verification letters. We disagree. The verifications do not constitute “major 

 

7 In her thoughtful concurrence, Judge McHugh concludes that it 

would have been obvious to the Corps that its analysis of cumulative 

effects was too restrictive. In our view, however, the environmental groups 

did not invoke the obviousness exception on the NEPA claims involving 

cumulative effects. See Appellants’ Opening Br. at 33-34; Appellants’ 

Reply Br. at 14-16. Instead, we believe the obviousness exception was 

raised solely on the NEPA claims involving oil spills. See Appellants’ 

Opening Br. at 25-26; Appellants’ Reply Br. at 11, 14.

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 15 
16 

Federal action” warranting NEPA review, and the agency was not required 

to assess impacts of the entire pipeline. 

1. Major Federal Action 

 NEPA requires agencies to evaluate the impacts of all “major Federal 

actions.” 42 U.S.C. § 4332(2)(C) (2012); Ross v. Fed. Highway Admin., 

162 F.3d 1046, 1051 (10th Cir. 1998). For the sake of argument, we can 

assume that the verifications constitute “federal actions.” But issuance of a 

verification letter would create a “major Federal action” only if it resulted 

in significant impact,8

 and the verification letters would not result in 

significant impact. 

 The environmental groups contend that the verifications constitute 

“major Federal action” because they were essential for the pipeline’s 

completion. The premise of the contention is neither self-evident nor 

supported by authority. 

 Without the ability to rely on Nationwide Permit 12 to discharge 

dredged and fill material, TransCanada might have been able to obtain an 

individual or regional permit9

 or routed the pipeline to avoid many of the 

 

8 See 40 C.F.R. § 1508.18 (2012). 

9 See 33 C.F.R § 330.1(d) (2012) (stating that Corps officials may 

instruct permittees whose projects do not qualify for nationwide permits to 

“apply for a regional general permit or an individual permit”). 

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 16 
17 

waterway crossings. Thus, TransCanada might have been able to complete 

the pipeline without the verifications. 

 The environmental groups rely on two district court cases: Wyo. 

Outdoor Council v. U.S. Army Corps of Eng’rs, 351 F. Supp. 2d 1232, 1242 

(Dist. Wyo. 2005), and Spiller v. Walker, No. A-98-CA-255-SS, 1998 U.S. 

Dist. LEXIS 18341, at *39-41 (W.D. Tex. Aug. 25, 1998). Reliance on 

these cases is misplaced. 

 In Wyo. Outdoor Council, the court stated that the Corps is the 

“gatekeeper for approval” of projects and, as the gatekeeper, it should 

consider environmental impacts of those projects. Wyo. Outdoor Council, 

351 F. Supp. 2d at 1242. But the court was describing the Corps’ duty 

when it issues a regional permit,10 not when it issues verifications. 

 In Spiller, the court stated in dicta that the Corps would commit 

“major Federal action” by granting an easement and dredge-and-fill permit 

for a proposed pipeline. Spiller, 1998 U.S. Dist. LEXIS 18341, at *43-44. 

But as the statement indicates, the Corps had not yet issued a permit. Thus, 

the district court’s statement had no effect on the outcome. 

 These decisions do not persuade us to expand the Corps’ NEPA 

obligations, for the Corps neither acted as a “gatekeeper” nor approved the 

 

10 Regional permits are authorized under the same section of the Clean 

Water Act as nationwide permits. See 33 U.S.C. § 1344(e) (2012). But 

regional permits authorize activities in specific regions instead of the 

entire country. 33 C.F.R. § 330.2(b) (2012). 

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 17 
18 

pipeline; the Corps simply verified that TransCanada’s project was covered 

by Nationwide Permit 12. 

 At that point, there was little reason for a new NEPA review because 

the Corps had already conducted a NEPA analysis when issuing 

Nationwide Permit 12. As long as the proposed activities were authorized 

by the nationwide permit, the Corps would have had little reason to 

conduct a second NEPA review when issuing the verification letters. 

 A similar issue arose in Snoqualmie Valley Pres. Alliance v. U.S. 

Army Corps of Eng’rs, 683 F.3d 1155 (9th Cir. 2012) (per curiam). There a 

utility planned to lower a dam to mitigate flooding problems. Snoqualmie 

Valley, 683 F.3d at 1157. Before carrying out this plan, the utility asked 

the Corps to verify that lowering of the dam would be covered by two 

existing nationwide permits. Id. at 1158. Downstream property owners 

objected, arguing that the Corps violated NEPA by allowing the utility to 

proceed under the nationwide permits. Id. at 1164. The Ninth Circuit Court 

of Appeals rejected the argument, explaining that the Corps must comply 

with NEPA when promulgating the nationwide permits―not when someone 

seeks to act under the permit. Id. at 1164. 

 The court’s explanation is persuasive and equally applicable here. 

The Corps complied with NEPA when it issued Nationwide Permit 12 for 

the construction, maintenance, and repair of a wide variety of utility lines. 

Though the Corps did not issue an environmental impact statement, it did 

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 18 
19 

issue an environmental assessment and ultimately concluded that the 

environmental impact would be insignificant. When the Corps verified that 

TransCanada could proceed under the nationwide permit, the Corps was 

simply saying that the permit applied; the Corps was not authorizing 

anything that it had not already authorized when issuing the permit. See 

Riverside Irrigation Dist. v. Andrews, 758 F.2d 508, 511 (10th Cir. 1985) 

(stating that nationwide permits are “automatic in that if one qualifies, no 

application is needed before beginning the discharge activity”). 

 The environmental groups argue that Snoqualmie is distinguishable in 

two ways: 

1. There the court addressed a single location, and here the 

pipeline went through thousands of water crossings. 

2. There another agency (FERC) conducted a NEPA analysis of 

the project (lowering of the dam), but here no one ever 

assessed the impact of the project (operation of an oil 

pipeline). 

Appellants’ Opening Br. at 39-40; Appellants’ Reply Br. at 16-17. These 

distinctions are invalid because they overlook similarities between the two 

cases and create distinctions that had nothing to do with the Snoqualmie 

court’s rationale. 

 The environmental groups erroneously assume that the environmental 

assessment of the project was valid in Snoqualmie and was invalid here. In 

both cases, another agency issued an environmental impact statement for 

an earlier version of the project. In Snoqualmie, the other agency (FERC) 

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 19 
20 

evaluated the environmental impact of an earlier version of the project 

(lowering of the dam). Snoqualmie Valley, 683 F.3d at 1158.11 In our case, 

another agency also issued an environmental impact statement for an 

earlier version of the project: construction of an oil pipeline that would 

have run further northward into Canada. In trying to distinguish the two 

cases, the environmental groups apparently assume that FERC’s 

environmental impact statement of the earlier project would have obviated 

the need for a new NEPA review and that the State Department’s 

environmental impact statement of the oil pipeline wouldn’t. But why? In 

both cases, the environmental impact statement addressed an earlier 

version of the project rather than the one ultimately subject to the Corps’ 

verifications. 

 Perhaps for that reason, the court in Snoqualmie did not rely in any 

way on FERC’s issuance of an environmental impact statement for the 

earlier project. The court merely mentioned the environmental impact 

statement in one sentence of the background facts. Id. The court explained 

that there was no need for a new NEPA analysis at the verification stage 

because of the limited purpose of a verification letter: At that point, the 

Corps’ only function is to verify that the project is covered by the 

 

11 In Snoqualmie, the Corps also conducted a separate environmental 

assessment of an earlier version of the project. Snoqualmie Valley, 683 

F.3d at 1158. 

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 20 
21 

nationwide permit. Id. at 1164. In light of that limited purpose for 

verification, the court concluded: “Verifying that permittees may properly 

proceed under a nationwide permit does not require a full NEPA analysis at 

the time of verification.” Id.

 That is also true here. In issuing the verifications, the Corps simply 

confirmed that TransCanada’s activities would fall within the terms of 

Nationwide Permit 12. There would have been little reason for the Corps to 

conduct a new NEPA analysis at that point. Another NEPA analysis was 

unnecessary in Snoqualmie and was unnecessary here. 

2. Scope of Analysis 

 The environmental groups also argue the Corps should have 

evaluated the impacts of the entire pipeline project because the agency had 

“control and responsibility” over that project. In support, the 

environmental groups rely on the Corps’ NEPA implementation 

regulations, codified at 33 C.F.R. § 325, Appendix B. 

 We disagree for two reasons: 

1. Appendix B does not apply to the verification process. 

2. Even if Appendix B applied, the environmental groups have not 

shown that the Corps would have had sufficient “control and 

responsibility” over the pipeline project. 

 Appendix B does not apply to the verification process. In adopting 

Appendix B, the Corps indicated that Appendix B would not apply to 

nationwide permits (or verifications of permit coverage) when it issued the 

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 21 
22 

appendix. See Environmental Quality; Procedures for Implementing the 

National Environmental Policy Act (NEPA), 53 Fed. Reg. 3120-01, 3126 

(Feb. 3, 1988).12 We defer to the Corps’ interpretation unless it is plainly 

erroneous or inconsistent with Appendix B. Kentuckians for the 

Commonwealth v. U.S. Army Corps of Eng’rs, 746 F.3d 698, 708 n.3 (6th 

Cir. 2014). 

 We do not regard the Corps’ interpretation as plainly erroneous or 

inconsistent with the appendix. The appendix was apparently designed to 

guide Corps officials in evaluating permit applications for individual 

 

12 During the comment period for Appendix B, commenters suggested 

that the Corps categorically exclude verifications from NEPA 

documentation. See Environmental Quality; Procedures for Implementing 

the National Environmental Policy Act (NEPA), 53 Fed. Reg. 3120, 3126 

(Feb. 3, 1988) (“Several suggested regional and nationwide general permits 

should be added to the list.”). The Corps responded that the exclusion was 

not necessary: 

The regional and nationwide general permits are permits for 

certain types of activities for which there has already been a 

NEPA review and NEPA documents have already been prepared 

on a generic basis. Therefore, it is not necessary to add them to 

the list of actions categorically excluded from NEPA 

documentation. 

Id. Thus, the agency chose not to categorically exclude verifications from 

the NEPA process. See 33 C.F.R. § 325, Appendix B(6) (2012). 

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 22 
23 

projects,13 not to evaluate whether a project qualified under an existing 

nationwide or regional permit. 

3. The Corps’ Supposed Mistake 

The environmental groups argue that the Corps issued the nationwide 

permit under the mistaken belief that another agency would prepare an 

environmental impact statement. Appellants’ Opening Br. at 40. 

 This argument is based on a selective quotation from the Corps’ 

decision document addressing issuance of the nationwide permit. There the 

Corps noted that one commenter had asked if someone would need an 

individual permit for an activity covered by Nationwide Permit 12 “when a 

Corps district participates as a cooperating agency for an environmental 

impact statement.” Appellants’ App. at 517. Under federal regulations, an 

agency can serve as a “cooperating agency” only if another agency serves 

as the “lead agency.” 40 C.F.R. §§ 1501.6, 1508.5 (2012). Thus, the 

question assumed that another agency would serve as the lead agency and 

retain responsibility for issuing an environmental impact statement. 

 The Corps answered the commenter’s question, noting that the lead 

agency would address non-aquatic environmental impacts when the Corps 

 

13 See, e.g., 33 C.F.R. § 325, Appendix B(7)(a) (2012) (explaining how 

a district engineer should evaluate an “applicant’s proposal” when 

preparing a NEPA document); id., Appendix B(7)(b) (explaining how 

district engineers should define the scope of a NEPA document when a 

“permit applicant” proposes to conduct “a specific activity requiring a 

Department of the Army . . . permit”). 

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 23 
24 

served as a cooperating agency. Appellants’ App. at 517. The Corps did not 

suggest that other agencies would address non-aquatic impacts whenever 

someone undertook an activity authorized by the nationwide permit. 

4. Summary 

 In issuing the verification letters, the Corps did not violate NEPA. 

The verifications were not “major Federal actions” that would require 

NEPA review, and the Corps had no obligation to assess the environmental 

impacts of the entire Gulf Coast Pipeline. 

III. Clean Water Act

 Section 404(e) of the Clean Water Act authorizes the Corps to issue 

nationwide permits when dredge-and-fill activities would result in minimal 

adverse environmental effects. 33 U.S.C. § 1344(e)(1) (2012). According 

to the environmental groups, Nationwide Permit 12 violates § 404(e) by 

 authorizing linear projects with substantial environmental 

 impacts and 

 deferring part of the minimal-impacts determination to project-

 level personnel. 

 We reject both arguments. The environmental groups have not shown 

that the permit authorizes linear projects with more-than-minimal impacts, 

and the Corps has permissibly interpreted the statute to allow partial 

deferral of its minimal-impacts analysis. 

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 24 
25 

A. Utilization of the Permit 

The environmental groups argue that the nationwide permit allows 

activities with more-than-minimal impacts. We disagree. 

 The Corps has concluded that the environmental impacts would be 

minimal. See Appellants’ App. at 530, 535, 544, 553. This conclusion 

involved the agency’s technical expertise. See Utah Envtl. Congress v. 

Richmond, 483 F.3d 1127, 1140 (10th Cir. 2007). 

 The environmental groups question that conclusion. Because this 

conclusion is based on technical expertise, the environmental groups face a 

heavy burden. Balt. Gas & Electric Co. v. Natural Res. Def. Council, Inc., 

462 U.S. 87, 103 (1983). They must show that the Corps’ minimal-impact 

determination lacked any “substantial basis in fact.” Fed. Power Comm’n 

v. Fla. Power & Light Co., 404 U.S. 453, 463 (1972). The environmental 

groups have not met this burden. 

They assert that TransCanada can use the permit limitless times for a 

single linear project. The Corps disagreed, concluding that it could assure 

minimal impact by applying the existing standard (loss of 1⁄2 acre of U.S. 

waters) to each water crossing as long as it was “separate and distant.” 

Appellants’ App. at 508, 513-14. 

 In arriving at this conclusion, the Corps explained that it had a longstanding practice of calculating the 1⁄2-acre threshold “separately for each 

separate and distant crossing.” Id. at 513; see Regulatory Guidance Letter 

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 25 
26 

88-06, at 1, 3 (June 27, 1988), http://www.usace.army.mil/Portals/2/docs/ 

civilworks/RGLS/rgl88-06.pdf. Applying this standard, the Corps 

determined that the project would result in the loss of only 0.63 acres of 

wetlands. Appellants’ App. at 647, 2506. Thus, the Corps effectively found 

that the total loss in wetlands, over more than 2,000 water crossings, was 

only slightly larger than the loss permitted for each separate and distant 

crossing. And even for these losses, TransCanada had to buy credits from a 

wetlands mitigation bank. Id. at 647-48. 

 The environmental groups challenge the use of this test (whether the 

crossings are “separate and distant”). But the environmental groups have 

not shown that the Corps failed to adequately control aquatic impact by 

allowing multiple uses of the 1⁄2-acre test for “separate and distant” 

crossings. The Corps’ use of the “separate and distant” test was not 

arbitrary or capricious. See Greater Yellowstone Coal. v. Flowers, 359 

F.3d 1257, 1269-73 (10th Cir. 2004) (holding that the Corps’ granting of a 

§ 404 permit was not arbitrary or capricious even though the project would 

eliminate 1.45 acres of wetlands). 

B. Partial Deferral of Analysis 

As discussed, a § 404 permit allows the Corps to authorize an 

activity only if the environmental impact would be minimal. See 33 U.S.C. 

§ 1344(e) (2012). In deciding to issue Nationwide Permit 12, the Corps 

analyzed the environmental impacts of dredge-and-fill activity related to 

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 26 
27 

utility-line construction. Appellants’ App. at 528-35. But in conducting 

this analysis, the Corps noted that its analysis had to entail some level of 

speculation about future operations. Id. at 528. Thus, the Corps added 

safeguards involving the use of project-level personnel, requiring them to 

ensure that particular activities would not have more than a minimal 

impact on the aquatic environment. Id.

 The environmental groups argue the Corps violated § 404(e) by 

partially deferring the minimal-impact determination. We disagree. The 

Corps permissibly interpreted § 404(e) to allow establishment of additional 

safeguards through the use of project-level personnel. 

 1. Standard of Review (Chevron) 

 The environmental groups have questioned the Corps’ interpretation 

of the Clean Water Act. We review this contention under the two-part test 

stated in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 

837, 843-44 (1984).14 Under Chevron, we first ask whether Congress has 

directly spoken on the issue. Chevron, 467 U.S. at 843-44. If Congress has 

not directly spoken, we ask whether the Corps’ interpretation of the Clean 

Water Act is permissible. See id. If the Corps’ interpretation is 

permissible, we must defer to that interpretation. Id. at 844. 

 

14 Chevron deference is appropriate because the Corps administers 

§ 404(e) of the Clean Water Act. 33 U.S.C. § 1344(e) (2012); City of 

Arlington v. F.C.C., __ U.S. __, 133 S. Ct. 1863, 1868 (2013). 

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 27 
28 

2. Step One of Chevron: Ambiguity of § 404(e) 

 We first ask: Has Congress directly spoken on whether the Corps can 

assign project-level personnel the task of ensuring minimal impact on the 

environment? On this issue, Congress has not directly spoken. 

 Under § 404(e), the Corps must ensure that the authorized activities 

have only minimal environmental impact. See 33 U.S.C. § 1344(e) (2012). 

But § 404(e) does not specify how or when the Corps must make its 

minimal-impact determination. By omitting these aspects of the 

determination, Congress presumably authorized the Corps to fill in the 

gaps. See City of Arlington v. F.C.C., __ U.S. __, 133 S. Ct. 1863, 1868 

(2013) (“Congress knows to speak in plain terms when it wishes to 

circumscribe, and in capacious terms when it wishes to enlarge, agency 

discretion.”); see also Catawba Cnty., N.C. v. E.P.A., 571 F.3d 20, 35 

(D.C. Cir. 2009) (explaining that ambiguity in the statutory text 

“suggest[s] a congressional intent to leave unanswered questions to an 

agency’s discretion and expertise”). Thus, § 404(e) does not clarify 

whether the Corps can defer part of its minimal-impact analysis.15

 

15 The environmental groups argue that partial deferral violates the 

“unambiguously expressed intent of Congress” for two reasons: 

 1. Nationwide permits are final actions that “mark[] the 

 completion of the decision-making process”; thus, the Corps 

 must finalize the minimal-impact determination before issuing 

 such permits. 

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 28 
29 

3. Step Two of Chevron: Permissibility of Interpretation 

Because Congress has not directly spoken on this issue, we ask: Has 

the Corps permissibly interpreted § 404(e) to allow partial deferral of the 

minimal-impact determination? The Corps’ interpretation is permissible 

based on the text of § 404(e) and the difficulty of predicting the impact of 

activities allowed under nationwide permits. 

a. Text of § 404(e) 

 We first consider the language in § 404(e). See United States v. 

Hubenka, 438 F.3d 1026, 1032-33 (10th Cir. 2006) (analyzing an 

interpretation of the Clean Water Act to determine whether the Corps’ 

interpretation of Act was permissible). This language reflects an 

acknowledgment that the Corps might need to police the use of a permit to 

ensure that the environmental impact is minimal, for § 404(e)(2) 

recognizes the possibility that authorized activities could result in more-

 

 2. Partial deferral would deny the public the opportunity to 

 meaningfully comment on proposed nationwide permits. 

Appellants’ Opening Br. at 44-45. But these arguments do not address 

whether Congress has directly spoken on the issue, which is our only 

concern at step one of Chevron. See United States v. Hubenka, 438 F.3d 

1026, 1031 (10th Cir. 2006); see also Aragon-Salazar v. Holder, 769 F.3d 

699, 706 (9th Cir. 2014) (“Using extrinsic policy considerations to 

determine whether there is statutory ambiguity is plainly contrary to 

Supreme Court precedent on both Chevron step one and statutory 

interpretation more generally.”). Thus, we reject these arguments as to step 

one and will instead address them at step two. See pp. 34-35, below. 

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 29 
30 

than-minimal impacts. For example, this section authorizes revocation or 

modification of a nationwide permit if the Corps “determines that the 

activities authorized by [the permit] have an adverse impact on the 

environment.” 33 U.S.C. § 1344(e)(2) (2012). The Corps could reasonably 

conclude that project-specific review by district engineers would facilitate 

the decision whether to revoke or modify a nationwide permit. 

b. Difficulty of Fully Predicting the Impact

 The Corps could have recognized the difficulty of predicting impacts 

from all future activities falling within Nationwide Permit 12. Thus, the 

Corps’ interpretation of § 404(e) supplies a reasonable way of safeguarding 

the environment from unforeseen impacts. In similar circumstances, the 

Fourth Circuit Court of Appeals upheld the use of project-level personnel 

in Ohio Valley Envtl. Coal. v. Bulen: 

[I]t is impossible for the Corps’ ex ante determinations of 

minimal impact to be anything more than reasoned predictions. 

Even under the paradigmatic general permit envisioned by the 

district court, where the parameters of the authorized activities 

are delineated in objective, measurable terms, the Corps’ 

minimal-impact determinations would necessarily be a forecast 

only. This is so because the environmental impact of the 

activities authorized by a general permit depends on factors 

that, as a practical matter, are outside the Corps’ ability to 

predict with certainty ex ante. This uncertainty is especially 

acute when the Corps issues a nationwide permit like 

[Nationwide Permit] 21 because the Corps must attempt to 

forecast the environmental effects the authorized activities 

could have if undertaken anywhere in the country under any set 

of circumstances. 

429 F.3d 493, 501 (4th Cir. 2005). 

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 30 
31 

 Though we are not bound by Bulen, we regard it as persuasive. 

Nationwide Permit 12, like all nationwide permits, governs a broad 

range of activities that can be undertaken anywhere in the country 

under a wide variety of circumstances. For example, Nationwide 

Permit 12 addresses the construction, maintenance, repair, and 

removal of all utility lines throughout the nation. Appellants’ App. at 

508. In considering how to address this range of activities, the Corps 

noted that utility lines are used in a variety of ways, carrying 

resources (like water, fuel, and electricity), facilitating 

communication (like telephone lines, internet connections, and cable 

television), and removing waste. Id. at 527. The Corps ultimately 

adopted a set of conditions reflecting the foreseeable effects of 

activities authorized by the nationwide permit. Id. at 528. But the 

Corps recognized that this assessment was inherently speculative: 

The issuance of [a nationwide permit] is based on a 

general assessment of the effects on public interest and 

environmental factors that are likely to occur as a result 

of using this [nationwide permit] to authorize activities in 

waters of the United States. As such, this assessment 

must be speculative or predictive in general terms. Since 

[nationwide permits] authorize activities across the 

nation, projects eligible for [nationwide permit] 

authorization may be constructed in a wide variety of 

environmental settings. Therefore, it is difficult to 

predict all of the indirect impacts that may be associated 

with each activity authorized by [a nationwide permit]. 

Id.

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 31 
32 

The environmental groups argue that Bulen is distinguishable 

because there (1) another agency (the Department of Interior) would 

evaluate the activity to be regulated (operation of coal mines), and 

(2) the Corps undertook a comprehensive analysis of the impacts 

from the authorized activities. These distinctions are misguided. 

The first distinction is based on a single sentence in Bulen. In 

this sentence, the Fourth Circuit Court of Appeals summarized the 

nationwide permit, pointing out that it had authorized discharges of 

dredged or fill material associated with surface coal mining and 

reclamation operations “so long as those operations [we]re 

authorized by the Department of Interior” or satisfied the 

requirements for programs under the Surface Mining Control and 

Reclamation Act of 1977. Bulen, 429 F.3d at 498. The court did not 

refer again to the Department of Interior’s regulation or give any 

indication that these regulations affected the holding or rationale. 

See id. passim.

16

 

16 If the Corps had relied on additional regulations by the Department 

of Interior, the same would have been true here. The Federal Energy 

Regulatory Commission oversees regulatory regimes for oil pipelines and 

the Department of Transportation’s Pipeline and Hazardous Materials 

Safety Administration regulates pipeline safety. James J. Monast, Brooks 

R. Pearson & Lincoln F. Pratson, A Cooperative Federalism Framework for 

LCS Regulation, 7 ENVTL. & ENERGY L. & POL’Y J. 1, 23-24 (2012). 

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 32 
33 

The Fourth Circuit Court of Appeals also noted that the Corps 

had assessed the environmental impacts from a broad range of 

activities. Id. at 499. But the court noted that the Corps’ assessment 

was inherently speculative because of the variety of ways that coal 

miners might invoke Nationwide Permit 21. Id. at 501. 

The same is true of Nationwide Permit 12. When considering 

whether to issue this permit, the Corps analyzed the environmental 

impacts of activities involving utility lines. But the Corps pointed 

out that its task was complicated by the variety of ways that 

companies might undertake to construct, maintain, repair, and 

remove utility lines. Appellants’ App. at 527-28. 

 The environmental groups complain that in doing so, the Corps failed 

to evaluate the environmental impacts from oil pipeline projects like this 

one. How could the Corps have done that? After all, the Corps had issued 

Nationwide Permit 12 before TransCanada proposed this pipeline. See 

Appellants’ Reply Br. at 13 (arguing, in a different context, that 

TransCanada decided to divide the Keystone XL Pipeline into two parts 

only after the comment period had closed for Nationwide Permit 12). In 

fact, the environmental groups argue “that [Nationwide Permit 12] was not 

meant for these major oil pipelines.” Id. If no one contemplated that 

Nationwide Permit 12 would cover major oil pipelines, why would the 

Corps have considered the environmental impacts from a major oil 

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 33 
34 

pipeline? And if the Corps did consider these impacts, how would it have 

assessed the environmental impact from this particular pipeline? 

 The problem, as the Bulen court explained, is that nationwide permits 

are inherently broad and could cover a variety of activities. Ohio Valley 

Envtl. Coal. v. Bulen, 429 F.3d 493, 501 (4th Cir. 2005). The agency might 

predict some of these activities, but not others. Thus, the Corps predicted 

how companies might use the nationwide permit and assessed the 

environmental impacts from those uses. Appellants’ App. at 528. In Bulen, 

however, the court recognized that this assessment had to entail some level 

of speculation. Bulen, 429 F.3d at 501. 

 The same is true here. The Corps made an environmental assessment 

of the predictable uses of Permit 12, but recognized the futility of 

predicting every conceivable use for every conceivable type of utility line 

anywhere in the United States. The Corps need not conduct a new NEPA 

analysis every time someone conceives a new use for a national permit. 

 c. Arguments Against the Corps’ Interpretation 

 The environmental groups argue that partial deferral is not 

permissible under § 404(e) for two reasons: 

1. The Corps must finalize minimal-impact determinations before 

issuing nationwide permits because the permits are final agency 

actions. 

2. Partial deferral would restrict the public’s ability to 

meaningfully comment on proposed permits. 

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 34 
35 

We reject both arguments. Finality is not relevant here, and partial deferral 

would not restrict the public’s ability to comment. 

 First, finality of the nationwide permit does not bear on whether the 

Corps could enhance its environmental protection by assigning additional 

oversight responsibilities to project-level personnel. Finality bears only on 

whether the permit is reviewable under the Administrative Procedure Act, 

and no one has questioned jurisdiction. See McKeen v. U.S. Forest Serv., 

615 F.3d 1244, 1253 (10th Cir. 2010) (“Pursuant to the APA, we have 

jurisdiction to review only ‘final agency actions.’”). 

 Second, partial deferral would not restrict the public’s ability to 

comment on proposed permits. See 33 C.F.R. 325.3 (2012) (stating that the 

Corps must provide the public with “sufficient information to give a clear 

understanding of the nature and magnitude of [proposed] activit[ies] to 

generate meaningful comment”). For every proposed permit, the Corps 

must prepare a written evaluation of all potential impacts of authorized 

activities. 33 C.F.R. § 230.7 (2012). The Corps has deferred only those 

aspects of the evaluation that cannot practically be undertaken before a 

project is underway. Thus, the impact on opportunities for public comment 

would not preclude the Corps from interpreting § 404(e) in a way that 

would allow oversight by project-level personnel. 

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 35 
36 

d. Summary 

 For these reasons, we conclude that the Corps has permissibly 

interpreted § 404(e) to allow use of project-level personnel to evaluate 

environmental impacts. The Corps’ interpretation is consistent with the 

text and practicalities of § 404(e). 

IV. Nationwide Permit 12 

 Finally, the environmental groups argue that the Corps violated the 

terms of its own permit by failing to document analysis of cumulative 

impacts in the verification letters or administrative record. 

 We disagree. Though district engineers must analyze cumulative 

impacts, the engineers need not include a written analysis of cumulative 

impacts within the verification letters. Though this analysis is absent in the 

letters, it appears in the record. Thus, we conclude that the Corps’ issuance 

of the verification letters was not arbitrary or capricious.17

 

17 The environmental groups also state in their heading that the 

verification letters violated the Clean Water Act. See Appellants’ Opening 

Br. at 48. But the environmental groups have not developed this argument 

beyond the heading. Because this argument has not been developed, it is 

waived. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 841 

(10th Cir. 2005) (“Issues will be deemed waived if they are not adequately 

briefed.” (citing Utahns for Better Transp. v. U.S. Dep’t of Transp., 305 

F.3d 1152, 1175 (10th Cir. 2002))). 

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 36 
37 

A. Verification Letters 

 The environmental groups argue that the agency issued the letters in 

violation of the nationwide permit by not including a cumulative-impacts 

analysis. We disagree. 

 The Corps has directed district engineers to analyze the cumulative 

impacts of proposed projects when reviewing pre-construction 

notifications. See Reissuance of Nationwide Permits, 77 Fed. Reg. 10,184, 

10,186 (Feb. 21, 2012). But, the Corps has not required district engineers 

to include a written cumulative-impacts analysis in the verification letters. 

Thus, district engineers could have verified compliance without stating 

how they had analyzed the cumulative impacts. See Snoqualmie Valley 

Pres. Alliance v. U.S. Army Corps of Eng’rs, 683 F.3d 1155, 1163 (9th Cir. 

2012) (per curiam) (concluding that verification letters need not go beyond 

the base findings if the verification letters are supported by the record). 

B. Record of the Analysis 

 The environmental groups also argue that the record does not show 

cumulative-impact analyses by the district engineers. We disagree, for the 

record shows that district engineers analyzed the cumulative impacts of the 

proposed crossings. 

 We will uphold the verifications as long as we can discern that the 

agency adequately considered cumulative impacts. See Licon v. Ledezma, 

638 F.3d 1303, 1308 (10th Cir. 2011) (“We will ‘uphold a decision of less 

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 37 
38 

than ideal clarity if the agency’s path may be reasonably discerned.’” 

(quoting Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 

644, 658 (2007))). 

 We can reasonably discern that district engineers considered 

cumulative impacts of the proposed crossings. For instance, the record 

shows three facts: 

1. District engineers prepared verification memoranda18 that 

 describe the Corps’ analysis of pipeline impacts, impose 

 special conditions to ensure minimal impacts, and conclude 

 that the pipeline (with proposed mitigation) would “result in no 

 more than minimal individual and cumulative adverse 

 environmental effects . . . .”19

2. The verification letters state that district engineers analyzed 

 “[a]ll proposed crossings” of the pipeline “relative to the 

 definition of single and complete project for linear projects.”20

3. Corps officials from separate districts communicated about the 

 pipeline’s verification to ensure that officials had necessary 

 

18 The environmental groups suggest that the memoranda are deficient 

because they rely on an outdated standard (“Condition 27(e)”) after it had 

been replaced. But the district court held that the environmental groups 

had waived this argument by failing to raise it until the reply brief on 

summary judgment. We conclude that the district court acted within its 

discretion in applying the local rule. See Bylin v. Billings, 568 F.3d 1224, 

1230 n.7 (10th Cir. 2009) (stating that we owe considerable deference to a 

district court’s interpretation and application of its own local rules). Thus, 

we will not address this argument on appeal. 

19 Appellants’ App. at 1728, 1741, 1770. 

20 E.g., Appellants’ App. at 1760 (“Scope of Analysis”). 

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 38 
39 

 information and had fully considered the pipeline’s collective 

 impact.21 

 Based on the combination of these three facts, we can reasonably 

discern that the agency analyzed the cumulative impacts of the proposed 

crossings. Accordingly, the Corps’ issuance of the verification letters was 

not arbitrary or capricious. 

V. Conclusion 

 In conclusion, we affirm the entry of judgment for the defendants. In 

Nationwide Permit 12, the Corps did not violate NEPA or the Clean Water 

Act, and the agency did not issue the verification letters in violation of 

NEPA or the nationwide permit. 

 

21 Appellants’ App. at 2190-2210. 

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 39 
Sierra Club, Inc. v. Bostick, No. 14-6099

BALDOCK, J., concurring.

With the exception of Footnote 3, I join the Court’s clear and concise opinion. I write

separately because I believe we should have found this case to be prudentially moot.

“A case is prudentially moot if circumstances have changed since the beginning of

litigation that forestall any occasion for meaningful relief.” Citizen Ctr. v. Gessler, 770 F.3d

900, 909 (10th Cir. 2014) (citation and internal marks omitted). Or, “a court may dismiss the

case under the prudential-mootness doctrine if the case is so attenuated that considerations

of prudence and comity for coordinate branches of government counsel the court to stay its

hand, and to withhold relief it has the power to grant.” Rio Grande Silvery Minnow v.

Bureau of Reclamation, 601 F.3d 1096, 1121 (10th Cir. 2010) (citation and internal marks

omitted). Utilizing its discretion, the Court “elect[s] not to address prudential mootness.” 

Slip. Op. at 5 n.3. Counseling strongly against this maneuver is Hillsdale Environmental

Loss Prevention, Inc. v. U.S. Army Corps of Engineers, 702 F.3d 1156 (10th Cir 2012).

In Hillsdale, as here, environmental groups challenged a Corps-issued permit under

the National Environmental Policy Act (NEPA) and the Clean Water Act (CWA), and

prudential concerns were raised. We were not persuaded by those concerns in Hillsdale, but

our reasoning there points directly to the present affair. Specifically, in Hillsdale we had “no

trouble” rejecting NEPA mootness concerns because the facility in question was “not yet

complete.” Id. at 1167. Here, the pipeline has been complete and operational for years. 

Moreover, in Hillsdale we said CWA mootness was a much “closer question” where

“[n]early all of the jurisdictional waters . . . have been filled, and nearly all of the associated

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 40 
mitigation is now complete.” Id. Here, all the waters have been filled or rerouted and nearly

all associated mitigation is complete. Given Hillsdale’s language, I have a difficult time

imagining a scenario more appropriate for prudential mootness than the present.

Having said this, I acknowledge that prudential mootness is a matter of discretion and

that reasonable minds can certainly differ on what is prudent here. As such, I readily join the

Court in resolving this matter on other grounds.

2

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 41 
No. 14-6099, Sierra Club, Inc. v. Bostick 

McHUGH, Circuit Judge, concurring: 

I agree with the majority’s resolution of this case and I join most of its thoughtful 

analysis. But I write separately to discuss the Corps’ compliance with its obligations 

under NEPA because my view of this issue differs from that of the majority. 

The Corps argues it fully complied with its obligations under NEPA when it 

reissued Nationwide Permit 12 (NWP 12) because it “thoroughly considered the 

individual and cumulative impacts of activities within its jurisdiction: discharges of 

dredged and fill material into waters of the United States under the terms of NWP 12.” 

As support for that position, the Corps argues its “determination to focus primarily on the 

environmental impacts of discharges of dredged and fill material associated with the 

category of utility lines, without delving into the particulars of how those utility lines 

would operate, was reasonable and fully consistent with [§ 404(e) of the CWA].” Thus, 

the Corps attempts to limit the scope of its NEPA analysis when reissuing NWP 12 to the 

consideration of only those environmental impacts occurring within jurisdictional waters 

as a result of the discharge of dredged and fill material. By doing so, the Corps conflates 

its obligations under NEPA with its obligations under § 404(e) of the CWA. But nothing 

in the text of NEPA allows the Corps to limit its analysis in such a manner. 

When the Corps’ issuance of a permit under § 404(e) of the CWA constitutes a 

major federal action, as is the case with the issuance or reissuance of a nationwide permit, 

it must comply with the requirements of both the CWA and NEPA. The CWA permits 

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 42 
2 

the Corps to issue a nationwide permit if it “determines that the activities [authorized by 

the permit] are similar in nature, will only cause 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). When the Corps issues such permits, it must do so 

in accordance with guidelines issued by the EPA. Id.; see also id. § 1344(b)(1); 40 C.F.R. 

§ 230. These CWA guidelines make clear that the Corps’ cumulative effects analysis 

under § 404(e) of the CWA is limited to an analysis of “the changes in an aquatic 

ecosystem that are attributable to the collective effect of a number of individual 

discharges of dredged or fill material.” 40 C.F.R. § 230.11(g)(1). Thus, the Corps’ 

environmental analysis under the CWA may be properly limited to the aquatic impacts 

associated with the discharge of dredge and fill material. 

In contrast, NEPA requires a significantly broader scope of analysis. The Council 

on Environmental Quality (CEQ) is tasked with interpreting NEPA and establishing 

regulations governing agencies’ responsibilities under the statute. Robertson v. Methow 

Valley Citizens Council, 490 U.S. 332, 354 (1989). CEQ regulations require federal 

agencies to consider all of the reasonably foreseeable direct, indirect, and cumulative 

effects of an agency’s action. 40 C.F.R. §§ 1508.7, 1508.8. Direct effects “are caused by 

the action and occur at the same time and place.” Id. § 1508.8(a). Indirect effects “are 

caused by the action and are later in time or farther removed in distance, but are still 

reasonably foreseeable.” Id. § 1508.8(b). Cumulative effects are “impact[s] on the 

environment which result[] from the incremental impact of the action when added to 

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

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 43 
3 

(Federal or non-Federal) or person undertakes such other actions.” Id. § 1508.7 

(emphasis added). Thus, NEPA requires agencies to consider all of the reasonably 

foreseeable environmental effects caused by their major federal actions. 

Courts have consistently held that the Corps’ NEPA obligations when issuing a 

§ 404 dredge and fill permit—which constitutes a major federal action—extend beyond 

consideration of the effects of the discharge of dredged or fill material in jurisdictional 

waters. Indeed, courts routinely require the Corps to consider the direct, indirect, and 

cumulative effects—including nonaquatic effects—of the installations the Corps’ dredge 

and fill permits authorize. For example, in Hillsdale Environmental Loss Prevention, Inc. 

v. U.S. Army Corps of Engineers, we considered the validity of the Corps’ NEPA analysis 

when issuing a § 404 dredge and fill permit for the construction of an intermodal 

rail/truck terminal. 702 F.3d 1156, 1162–63 (10th Cir. 2012). In its NEPA analysis, the 

Corps “considered both [the] direct and reasonably foreseeable indirect impacts to land 

use, air quality, noise, traffic, water quality, threatened and endangered species, and 

cultural resources” from the operation of the intermodal terminal. Id. at 1164. Far from 

limiting its analysis to the impact of dredged and fill material on jurisdictional waters, the 

Corps conducted a broad environmental assessment. And we upheld the Corps’ NEPA 

analysis because it had properly considered all of the environmental impacts of the 

intermodal terminal, not only the aquatic impacts associated with the discharge of 

dredged and fill material. Id. at 1172–77. As such, we have recognized that a NEPA 

environmental assessment requires the Corps to look beyond the effects occurring 

directly within its jurisdictional waters. See Utahns for Better Transp. v. U.S. Dep’t of 

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 44 
4 

Transp., 305 F.3d 1152, 1190–91 (10th Cir. 2002) (recognizing that the CWA defines 

“cumulative impacts” more narrowly than does NEPA). 

Other courts similarly require the Corps to look beyond the effects of the 

discharge of dredged and fill material. The Ninth Circuit’s analysis in Save Our Sonoran, 

Inc. v. Flowers, 408 F.3d 1113 (9th Cir. 2004), is particularly instructive. In that case, the 

Corps issued a § 404 dredge and fill permit to a developer building a gated community 

near Phoenix. Id. at 1118–19. The development required Corps approval because several 

desert washes—which filled with water during the rainy season—intersected the 

proposed development site. Id. at 1118. The Corps prepared an environmental assessment 

and found the development would have no significant impact. Id. “In reaching this 

conclusion, the Corps examined only the washes rather than the entire project.” Id. On 

appeal, the Ninth Circuit considered whether “the Corps had improperly constrained its 

NEPA analysis to the washes, rather than considering the development’s effect on the 

environment as a whole.” Id. at 1121. The court stated: 

Although the Corps’ permitting authority is limited to those aspects of a 

development that directly affect jurisdictional waters, it has responsibility 

under NEPA to analyze all of the environmental consequences of a project. 

Put another way, while it is the development’s impact on jurisdictional 

waters that determines the scope of the Corps’ permitting authority, it is the 

impact of the permit on the environment at large that determines the Corps’ 

NEPA responsibility. The Corps’ responsibility under NEPA to consider the 

environmental consequences of a permit extends even to environmental 

effects with no impact on jurisdictional waters at all. 

Id. at 1122 (emphasis added). Thus, the Ninth Circuit held the Corps had improperly 

limited the scope of its NEPA analysis to the considerations relevant to issuing a permit 

under the CWA. Id. at 1123. 

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 45 
5 

My understanding of the scope of the Corps’ responsibility under NEPA parallels 

that of the Ninth Circuit. The Corps may not limit its NEPA analysis to the consideration 

of the environmental effects of the discharge of dredged and fill material into 

jurisdictional waters, as would be appropriate under § 404(e) of the CWA. Rather, for 

NEPA purposes, the Corps is required to consider the direct, indirect, and cumulative 

effects reasonably foreseeable as a result of its permitting decision. This includes the 

environmental effects caused by the operation of the installations authorized by the 

Corps’ permitting decision. And this understanding of the Corps’ NEPA responsibilities 

has been universally adopted.1 See, e.g., O’Reilly v. U.S. Army Corps of Eng’rs, 477 F.3d 

225, 232–34 (5th Cir. 2007) (holding Corps’ environmental assessment of proposed 

subdivision insufficient when it failed to properly evaluate adverse effects on area’s flood 

capacity due to increased pavement, increases in non-point source pollution from 

increased run-off, loss of habitat for non-aquatic wildlife, and adverse effects associated 

with increased vehicle traffic); Ocean Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d 

846, 868 (9th Cir. 2004) (holding Corps had NEPA obligation to consider effects of 

increased oil tanker traffic and increased risk of oil spills when issuing § 404 permit for 

construction of oil refinery dock); Sierra Club v. Marsh, 769 F.2d 868, 877–78 (1st Cir. 

1985) (holding Corps’ environmental assessment insufficient for failure to consider 

 1

 Although most of these decisions involve the issuance of individual permits, they 

address the scope of the Corps’ NEPA review, which is triggered by any permitting 

decision that qualifies as a major federal action. The issuance or reissuance of a 

nationwide permit is a major federal action that must comply independently with NEPA. 

See Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Eng’rs, 781 F.3d 1271, 1276 

(11th Cir. 2015). 

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 46 
6 

future industrial development when issuing § 404 permit for construction of a port and 

causeway). See also Pres. Soc. of Charleston v. U.S. Army Corps of Eng’rs, No. 2:12-

2942-RMG, 2013 WL 6488282, at *12 (D.S.C. Sept. 18, 2013) (rejecting Corps’ attempt 

“to justify what amounted to essentially a non-review of the proposed passenger terminal 

on the basis that its jurisdiction is limited to the portion of the project physically touching 

the navigable waters of the United States”); Wyo. Outdoor Council v. U.S. Army Corps of 

Eng’rs, 351 F. Supp. 2d 1232, 1237, 1242 (D. Wyo. 2005) (rejecting Corps’ argument 

that it was not obligated to consider cumulative impacts on non-wetland areas of regional 

permit authorizing dredge and fill associated with coalbed methane gas production); 

Friends of the Earth, Inc. v. U.S. Army Corps of Eng’rs, 109 F. Supp. 2d 30, 37–41 

(D.D.C. 2000) (holding Corps was required to consider adverse effects associated with 

increased sewage, increased wastewater runoff, creation of large shaded areas on the 

aquatic habitat, creation of a “sump” that would trap aquatic wildlife, increased draw on 

area aquifers, and increased upland development when issuing § 404 permit for dredge 

and fill associated with construction of floating casino barges); Hoosier Envtl. Council, 

Inc. v. U.S. Army Corps of Eng’rs, 105 F. Supp. 2d 953, 972–75 (S.D. Ind. 2000) 

(upholding Corps’ environmental assessment when it properly considered the indirect 

effects of § 404 permit for construction of riverboat gambling facility, including 

construction of a hotel, pavilion, golf course, and parking facilities). Thus, when 

reissuing NWP 12, the Corps was required to consider all of the environmental effects 

reasonably foreseeable as a result of its permitting decision. 

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 47 
7 

Moreover, I am convinced the failure to consider any environmental impacts 

beyond those associated with the discharge of dredged and fill material would have been, 

and in fact was, obvious to the Corps during the reissuance process so that no party was 

required to bring the defect to the Corps’ attention. See Dep’t of Transp. v. Public 

Citizen, 541 U.S. 752, 765 (2004) (noting the flaws in an agency’s environmental 

assessment “might be so obvious that there is no need for a commentator to point them 

out specifically in order to preserve its ability to challenge a proposed action”). In its 

response to comments in the final notice on the reissuance of NWP 12, the Corps 

specifically acknowledged that “NEPA requires consideration of all environmental 

impacts, not only those to aquatic resources, so there may well be situations where 

aquatic impacts are minimal even though environmental impacts more generally are not.” 

Reissuance of Nationwide Permits, 77 Fed. Reg. 10,184, 10,197 (Feb. 21, 2012). Given 

this explicit acknowledgement, the Corps cannot now take the contrary position that it 

satisfied its NEPA obligations when it focused exclusively on the aquatic impacts 

associated with the discharge of dredged and fill material. Accordingly, I would hold that 

the Corps’ NEPA analysis on the reissuance of NWP 12 was obviously flawed. 

But the Corps attempted to address this deficiency by deferring portions of the 

required NEPA analysis to whatever agency took the lead for a given utility line project 

or to the district engineer at the verification stage. Id. (“These other environmental 

impacts would be addressed by the lead agency preparing the environmental impact 

statement. The district engineer will exercise discretionary authority to require an 

individual permit for any utility line activity that he or she determines does not meet the 

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 48 
8 

terms and conditions of NWP 12.”). For example, the environmental assessment for 

NWP 12 states: 

Division and district engineers will conduct more detailed assessments for 

geographic areas that are determined to be potentially subject to more than 

minimal cumulative adverse effects. Division and district engineers have 

the authority to require individual permits in watersheds or other 

geographic areas where the cumulative adverse effects are determined to be 

more than minimal, or add conditions to the NWP either on a case-by-case 

or regional basis to require mitigation measures to ensure that the 

cumulative adverse effects are minimal. 

U.S. Army Corps of Eng’rs, Decision Document Nationwide Permit 12 at 27 

(2012) [hereinafter Decision Document]. 2 The assessment also provides that the “preconstruction notification requirement allows district engineers to review proposed 

activities on a case-by-case basis to ensure that the individual and cumulative adverse 

effects of those activities on the aquatic environment are minimal.” Id. at 22. Thus, the 

Corps’ own environmental assessment undermines the argument it makes before us 

now—that it fully complied with its NEPA obligations at the time it reissued NWP 12.3

To be sure, accounting in advance for the broad range of possible impacts 

resulting from the wide variety of utility lines authorized under NWP 12 is a daunting 

task. But compliance with NEPA is not excused simply because compliance is difficult. 

And the problem was exacerbated by the Corps’ decision to draft a nationwide permit 

that defines utility lines expansively. Reissuance of Nationwide Permits, 77 Fed. Reg. at 

 2

 The Decision Document is available on the Corps’ website at 

http://www.usace.army.mil/Portals/2/docs/civilworks/nwp/2012/NWP_12_2012.pdf. 

3

 To my mind, the Corps’ attempt at deferring portions of its cumulative effects 

analysis serves as a tacit admission that it did not conduct a full NEPA analysis at the 

time of reissuance. 

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 49 
9 

10,271–72 (“A ‘utility line’ is defined as any pipe or pipeline for the transportation of any 

gaseous, liquid, liquescent, or slurry substance, for any purpose, and any cable, line, or 

wire for the transmission for any purpose of electrical energy, telephone, and telegraph 

messages, and radio and television communication.”). The Corps could have decreased 

the difficulty of its NEPA analysis by crafting a narrower set of permits, focusing on 

particular types of utility line projects.4

 By issuing narrower permits focusing on 

particular industrial processes, the Corps could better assess all of the environmental 

impacts of the processes themselves, as required by NEPA. Accordingly, I would hold 

the Corps impermissibly restricted the scope of its NEPA analysis when it considered 

only the effects of the discharge of dredged and fill material when reissuing NWP 12. 

Nevertheless, I remain unconvinced that the Corps can permissibly defer any 

portion of its NEPA analysis to the verification stage. First, NEPA requires agencies to 

complete their environmental analysis at the point of agency action—in this case, the 

reissuance of NWP 12. See Citizens’ Comm. to Save Our Canyons v. Krueger, 513 F.3d 

1169, 1178 (10th Cir. 2008) (noting that NEPA requires agencies to “take a hard look at 

the environmental consequences before taking a major action” (emphasis added) (internal 

quotation marks omitted)); see also Ky. Riverkeeper, Inc. v. Rowlette, 714 F.3d 402, 409 

(6th Cir. 2013) (rejecting as “nonresponsive” the Corps’ argument that district engineers 

would assess required NEPA elements in greater detail at the verification stage). It is 

 4

 The Corps has issued industry-specific NWPs in other cases. See, e.g., 

Reissuance of Nationwide Permits, 77 Fed. Reg. 10,184, 10,274 (Feb. 21, 2012) 

(Nationwide Permit 21, Surface Coal Mining Activities); id. at 10,278 (Nationwide 

Permit 34, Cranberry Production Activities); id. at 10,281 (Nationwide Permit 49, Coal 

Remining Activities). 

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 50 
10 

impossible for an agency to have taken the “hard look” required by NEPA—and thereby 

have made a fully informed decision to undertake an action—if it knowingly defers 

portions of its analysis to a later date. 

Second, in the context of nationwide permits, it may well be that, as happened 

here, there is no lead agency that will conduct an environmental assessment. And the 

NWP 12 environmental assessment expressly contemplates that “[i]ndividual review of 

each activity authorized by an NWP will not normally be performed, except when preconstruction notification to the Corps is required or when an applicant requests 

verification that an activity complies with an NWP.” Decision Document at 4. That is, 

unless an individual utility line project requires a pre-construction notification, parties are 

authorized to use NWP 12 without ever notifying the Corps. Thus, in the context of 

nationwide permits, it is often the case that no further environmental analysis is ever 

contemplated. As such, I would conclude the Corps was not permitted to defer any 

portion of its NEPA analysis to the verification stage. Rather, the agency was required to 

fully evaluate all of the required NEPA factors before reissuing NWP 12. That did not 

happen here.5

 5

 CEQ regulations do allow partial deferral of NEPA analyses in certain prescribed 

circumstances. See Council on Envtl. Quality, Final Guidance for Effective Use of 

Programmatic NEPA Reviews (2014), available at 

https://www.whitehouse.gov/sites/default/files/docs/effective_use_of_programmatic_nep

a_reviews_final_dec2014_searchable.pdf. But the CEQ’s final guidance on 

programmatic NEPA reviews expressly states that such deferral is only appropriate when 

the initial NEPA review is subsequently supported by further review on a regional, local, 

or project specific basis. Id. at 26–29. Because I agree with the majority that the Corps is 

not required to conduct further NEPA analysis at the verification stage, the type of 

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 51 
11 

Nevertheless, I would affirm the district court because I conclude that Sierra 

Club’s argument that the Corps improperly deferred portions of its NEPA analysis to the 

verification stage was not made to the agency during the reissuance process and is 

therefore waived. Sierra Club has pointed to no part of the record in which any 

commenter objected to the Corps’ decision to defer parts of its NEPA analysis to the 

district engineers or prospective lead agency. And although I would conclude that the 

Corps’ failure to consider the full environmental consequences of NWP 12 was an 

obvious deficiency in its environmental assessment, I cannot conclude that it would have 

been so obvious to the Corps that it could not defer portions of its analysis to the 

verification stage that commenters were not required to first raise the concern during the 

reissuance process. See Public Citizen, 541 U.S. at 765. The Corps has been issuing and 

reissuing NWP 12 for decades, with no party objecting to the deferral practice. 

For these reasons, I concur.

 

deferral contemplated by the CEQ’s guidance on programmatic NEPA reviews is 

unworkable in the nationwide permit context. 

Appellate Case: 14-6099 Document: 01019437447 Date Filed: 05/29/2015 Page: 52