UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

Transcription

1 UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT Case No SIERRA CLUB, INC., CLEAN ENERGY FUTURE OKLAHOMA, and EAST TEXAS SUB REGIONAL PLANNING COMMISSION, Plaintiffs-Appellants, v. LIEUTENANT GENERAL THOMAS P. BOSTICK, MAJOR GENERAL MICHAEL J. WALSH, COLONEL RICHARD PRATT, COLONEL RICHARD PANNELL, and UNITED STATES ARMY CORPS OF ENGINEERS, Defendants-Appellees, and TRANSCANADA KEYSTONE PIPELINE, LP, TRANSCANADA CORPORATION, INTERSTATE NATURAL GAS ASSOCIATION OF AMERICA, AMERICAN GAS ASSOCIATION, ASSOCIATION OF OIL PIPE LINES, AMERICAN PETROLEUM INSTITUTE, and UTILITY WATER ACT GROUP, Defendant-Intervenors-Appellees. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (Case No. 5:12-cv R) (JUDGE DAVID L. RUSSELL) Oral Argument is Requested PLAINTIFFS-APPELLANTS OPENING BRIEF Douglas P. Hayes and Eric E. Huber Sierra Club th Street, Suite 102W Boulder, Colorado Tel.: (303) Fax: (303) Attorneys for Plaintiffs-Appellants

2 CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rules of Appellate Procedure 26.1, Plaintiffs-Appellants Sierra Club, Inc., Clean Energy Future Oklahoma, and East Texas Sub Regional Planning Commission make the following disclosures: They are non-profit corporations that have no parent corporations or publicly held stock, and do not have a financial interest in the outcome of this litigation. Date: July 30, 2014 s/ Douglas P. Hayes Douglas P. Hayes Attorney for Plaintiffs-Appellants Sierra Club th Street Suite 102W Boulder, CO doug.hayes@sierraclub.org (303) x100

3 TABLE OF CONTENTS TABLE OF AUTHORITIES... i GLOSSARY... ix STATEMENT OF JURISDICTION... 1 STATEMENT OF THE ISSUES... 1 STATEMENT OF THE CASE... 2 STATEMENT OF FACTS... 3 I. LEGAL BACKGROUND... 3 A. National Environmental Policy Act... 3 B. Clean Water Act... 4 II. THE CORPS ISSUANCE OF NWP III. THE CORPS VERIFICATION OF THE GULF COAST PIPELINE UNDER NWP SUMMARY OF ARGUMENT... 8 I. NEPA CLAIMS... 8 A. The Corps Failed to Analyze the Risk and Impacts of Oil Spills... 8 B. The Corps Failed to Analyze Cumulative and Uplands Impacts...10 C. Failure to Conduct a NEPA Analysis at the Verification Stage...11 II. CWA CLAIMS...12 STANDARD OF REVIEW...15 ARGUMENT...16 I. THE CORPS VIOLATED NEPA BY APPROVING THE GULF COAST PIPELINE WITHOUT EVER ANALYZING ITS ENVIRONMENTAL IMPACTS, INCLUDING THE RISKS AND IMPACTS OF OIL SPILLS...16

4 A. The Corps Issuance of NWP 12 Violated NEPA The NWP 12 Decision Document Failed to Analyze Oil Spills Appellants Oil Spill Claims are not Barred by Waiver...19 a. Sierra Club brought the issue of oil spills to the Corps attention before it issued NWP b. The Corps had independent knowledge of the oil spill issue...24 c. The risk of oil spills and impacts are obvious The Decision Document Failed to Analyze the Cumulative Impacts of Oil Pipelines...26 a. NEPA requires an analysis of cumulative effects, including impacts to uplands...27 b. The Corps failed to analyze the cumulative effects of NWP c. The Corps improperly deferred its cumulative effects analysis...30 d. Appellants did not waive this claim...33 B. The Corps was Required to Prepare a NEPA Analysis for the Gulf Coast Pipeline The Corps Verification of the Gulf Coast Pipeline is a Major Federal Action The Corps NEPA Regulations Dictate Control and Responsibility Extends to the Entire Project The NWP 12 Decision Document Cannot Suffice as the only NEPA Analysis for the Gulf Coast Pipeline Requiring a NEPA Analysis for the Gulf Coast Pipeline would not Defeat the Purpose of the NWP Program...40

5 II. THE CORPS ISSUANCE OF NWP 12 AND ITS VERIFICATION OF THE GULF COAST PIPELINE UNDER NWP 12 VIOLATED THE CWA, APPLICABLE REGULATIONS, AND THE APA...42 A. NWP 12 Violates the CWA 404(e) by Authorizing Projects with more than Minimal Impacts...42 B. NWP 12 Violates 404(e) by Failing to make a Final Minimal Effects Determination...44 C. The Corps Verification of the Gulf Coast Pipeline Violated NWP 12 and CWA 404(e) Nationwide Permit 12 Requires the Corps to Evaluate the Cumulative Effects of the Overall Pipeline The Corps Failed to Analyze the Cumulative Effects of the Gulf Coast Pipeline...51 III. THE COURT CAN STILL PROVIDE MEANINGFUL RELIEF...56 CONCLUSION...60 ORAL ARGUMENT REQUESTED...60 CERTIFICATE OF COMPLIANCE WITH RULE 32(a)...62 CERTIFICATE OF DIGITAL SUBMISSION...63 CERTIFICATE OF SERVICE...64 ADDENDUM

6 TABLE OF AUTHORITIES Cases Airport Neighbors Alliance, Inc. v. United States, 90 F.3d 426 (10th Cir. 1996)...57 Alaska Center for the Environment v. West, 157 F.3d 680, 682 (9th Cir. 1998)...46 Bucks Cnty. Bd. of Comm'rs v. Interstate Energy Co., 403 F. Supp. 805 (E.D. Pa. 1975)...22 Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)...44 Church of Scientology of Cal. v. United States, 506 U.S. 9 (1992)...57 Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971)...15, 56 City of Los Angeles v. U.S. Dep't of Agric., 950 F. Supp (C.D. Cal. 1996)...22 Cnty. of Suffolk v. Sec y of Interior, 562 F.2d 1368 (2d Cir. 1977)...19 Columbia Basin Land Prot. Ass'n v. Schlesinger, 643 F.2d 585 (9th Cir. 1981)...59 Defenders of Wildlife v. Ballard, 73 F. Supp. 2d 1094 (D. Ariz. 1999)...31 Dep't of Transp. v. Public Citizen, 541 U.S. 752 (2004)...18, 20, 25 i

7 Flint Ridge Development Co. v. Scenic Rivers Ass'n of Oklahoma, 426 U.S. 776 (1976)...34 Forest Guardians v. Babbit, 164 F.3d 1261 (10th Cir. 1998)...57 Forest Guardians v. U.S. Forest Serv., 495 F.3d 1162 (10th Cir. 2007)...20 Forest Guardians v. U.S. Forest Serv., 641 F.3d 423 (10th Cir. 2011)... 10, 20, 24, 25, 34 Grand Canyon Trust v. FAA, 290 F.3d 339 (D.C. Cir. 2002)...16 Hammond v. Norton, 370 F. Supp. 2d 226 (D.D.C. 2005)...22 Hillsdale Envtl. Loss Prevention, Inc. v. U.S. Army Corps of Engineers, 702 F.3d 1156 (10th Cir. 2012)...57, 60 Home Builders Ass n of Greater Chicago v. U.S. Army Corps of Engineers, 335 F.3d 607 (7th Cir. 2003)...45 Hoosier Environmental Council v. U.S. Army Corps of Engineers, 722 F.3d 1053 (7th Cir. 2013)...60 Hull v. I.R.S., 656 F.3d 1174 (10th Cir. 2011)...55 Ilio'ulaokalani Coal. v. Rumsfeld, 464 F.3d 1083 (9th Cir. 2006)...20 Jette v. Bergland, 579 F.2d 59 (10th Cir. 1978)...19 Kentucky Riverkeeper, Inc. v. Rowlette, 714 F.3d 402 (6th Cir. 2013)...32 ii

8 Maryland Native Plant Soc'y v. U.S. Army Corps of Engineers, 332 F. Supp. 2d 845 (D. Md. 2004)...55 Middle Rio Grande Conservancy Dist. v. Norton, 294 F.3d 1220 (10th Cir. 2002)...57 Montana Wilderness Ass'n v. Fry, 310 F. Supp. 2d 1127 (D. Mont. 2004)...59 Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983)...9, 15, 54 Nat l Ass n of Home Builders v. U.S. Army Corps of Engineers, 417 F.3d 1272 (D.C. Cir. 2005)...14, 44, 45 National Parks and Conservation Ass'n v. FAA, 998 F.2d 1523 (10th Cir. 1993)...57 New Hanover Tp. V. U.S. Army Corps of Engineers, 992 F.2d 470 (3rd Cir. 1993)...46 New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683 (10th Cir. 2009)...45, 55 No Oilport! v. Carter, 520 F. Supp. 334 (W.D. Wash. 1981)...22 Ocean Advocates v. U.S. Army Corps of Engineers, 402 F.3d 846 (9th Cir. 2005)...17, 18, 25, 59 Ohio Valley Envtl. Coal. v. Bulen, 429 F.3d 493 (4th Cir. 2005)...46, 47 Olenhouse v. Commodity Credit Corp., 42 F.3d 1560 (10th Cir. 1994)... 9, 15, 17, 54, 57 Or. Natural Desert Ass'n v. Bureau of Land Management, 531 F.3d 1114 (9th Cir. 2008)...55 iii

9 Park County Res. Council. v. U.S. Dep t of Agric., 817 F.2d 609 (10th Cir. 1987)...15 Pennaco Energy Inc. v. U.S. Dep't of the Interior, 377 F.3d 1147 (10th Cir. 2004)...3, 15, 17, 32 Public Lands Council v. Babbitt, 167 F.3d 1287 (10th Cir. 1999)...15 Riverside Irrigation District v. Andrews, 758 F.2d 508 (10th Cir. 1985)...45 Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989)...3, 17 Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113 (9th Cir. 2005)...11, 28, 38 Sierra Club v. Bosworth, 510 F.3d 1016 (9th Cir. 2007)...32 Sierra Club v. Clinton, 746 F. Supp. 2d 1025 (D. Minn. 2010)...22 Sierra Club v. Sigler, 695 F.2d 957 (5th Cir. 1983)...17, 25 Sierra Club v. U.S. Dep t of Agric., 777 F. Supp. 2d 44 (D.D.C. 2011)...35 Snoqualmie Valley Pres. Alliance v. U.S. Army Corps of Engineers, 683 F.3d 1155 (9th Cir. 2012)...39 Sohio Transp. Co. v. United States, 5 Cl. Ct. 620 (1984)...22 Spiller v. Walker, A-98-CA-255-SS, 2002 WL (W.D. Tex. July 19, 2002)...22, 35 iv

10 Spiller v. White, 352 F.3d 235 (5th Cir. 2003)...59 Stewart v. Potts, 996 F. Supp. 668 (S.D. Tex. 1998)...28 Stop the Pipeline v. White, 233 F. Supp. 2d 957 (S.D. Ohio 2002)...17, 21, 22, 25 Utahns for Better Transp. v. U.S. Dep't of Transp., 305 F.3d 1152 (10th Cir. 2002)...11, 28, 35 Valley Camp of Utah, Inc. v. Babbitt, 24 F.3d 1263 (10th Cir. 1994)...15 Vermont Public Interest Research Group v. U.S. Fish & Wildlife Service, 247 F.Supp.2d 495 (D. Vt. 2002)...20, 24 Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519 (1978)...19 West v. Sec'y of Dep't of Transp., 206 F.3d 920 (9th Cir.2000)...60 White Tanks Concerned Citizens, Inc. v. Strock, 563 F.3d 1033 (9th Cir. 2009)...28, 38 Wilderness Soc. v. Morton, 479 F.2d 842 (D.C. Cir. 1973)...22 Winnebago Tribe of Nebraska v. Ray, 621 F.2d 269 (8th Cir. 1980)...37 Wyoming Lodging & Rest. Ass'n. v. U.S. Dept. of Interior, 398 F. Supp. 2d 1197 (D. Wyo. 2005)...19, 33 v

11 Wyoming Outdoor Council Powder River Basin Res. Council v. U.S. Army Corps of Engineers, 351 F. Supp. 2d 1232 (D. Wyo. 2005)...11, 27, 28, 31, 32, 35, 43, 49 Related Cases / Prior Appeals Sierra Club v. Bostick, No (10th Cir. Oct. 9, 2013) Statutes 5 U.S.C U.S.C U.S.C. 706(2) U.S.C. 706(2)(A) U.S.C U.S.C U.S.C , 4 33 U.S.C. 1344(a) U.S.C. 1344(e)...12, 40, 42, U.S.C. 1344(e)(1)...4, 35, U.S.C U.S.C. 4332(C)... 4 vi

12 Regulations 33 C.F.R (r) C.F.R (a)...5, C.F.R. 325 App. B C.F.R. 325 App. B(7)(b)(1) C.F.R. 325 App. B(7)(b)(3)...36, C.F.R (a)(4) C.F.R (b) C.F.R (b) C.F.R C.F.R (c) C.F.R (b)(3) C.F.R (b) C.F.R (d) C.F.R C.F.R C.F.R , C.F.R C.F.R , C.F.R (b)... 3 vii

13 40 C.F.R C.F.R , C.F.R C.F.R (b) C.F.R , 58 Other Authorities 72 Fed. Reg (March 12, 2007)...54 Executive Order viii

14 GLOSSARY APA CWA DOS EA EIS EPA FEIS FONSI KXL NEPA NWP PCN PHMSA Administrative Procedure Act Clean Water Act Department of State Environmental Assessment Environmental Impact Statement Environmental Protection Agency Final Environmental Impact Statement Finding of No Significant Impact Keystone XL pipeline National Environmental Policy Act Nationwide Permit Preconstruction Notification Pipeline and Hazardous Materials Safety Administration ix

15 STATEMENT OF JURISDICTION On May 5, 2014, Plaintiffs-Appellants Sierra Club, et al ( Appellants ) timely appealed from an order filed by the U.S. District Court for the Western District of Oklahoma (the district court) on December 30, 2013, affirming actions by the U.S. Army Corps of Engineers ( Corps ), for which judgment was entered on March 17, The district court had jurisdiction to hear this case pursuant to 28 U.S.C (federal question). This Court has jurisdiction pursuant to 28 U.S.C STATEMENT OF THE ISSUES I. Whether the Corps Decision Document for Nationwide Permit ( NWP ) 12 violated the National Environmental Policy Act ( NEPA ), its implementing regulations and the Administrative Procedure Act ( APA ) because it failed to consider the risk or impacts of oil spills from pipelines permitted under NWP 12. II. Whether the Corps Decision Document for NWP 12 violated NEPA, its implementing regulations and the APA because it: A) failed to analyze the cumulative impacts of oil pipelines, including impacts to non-federal uplands ; and B) improperly deferred its analysis of cumulative impacts to the projectlevel. 1

16 III. Whether the Corps violated Clean Water Act ( CWA ) 404(e) and the APA in issuing NWP 12 by: A) permitting crude oil pipelines with more than minimal individual and cumulative impacts; and B) failing to make a minimal environmental effects determination. IV. Whether Appellants claims against NWP 12 were barred by the doctrine of waiver even though the issues underlying the claims were obvious or otherwise brought to the Corps attention, the Corps had independent knowledge of the issues, and/or the Corps had an opportunity to address them. V. Whether the Corps verifications of the Gulf Coast Pipeline were contrary to NEPA, CWA 404(e) and the APA because the Corps: A) failed to prepare a NEPA analysis for the verifications; and B) failed to evaluate the cumulative effects of the verifications as required by NWP 12. STATEMENT OF THE CASE This case involves the Army Corps of Engineers (the Corps ) approval of TransCanada s Keystone Gulf Coast Pipeline (the Gulf Coast Pipeline or Project ) under Nationwide Permit 12 ( NWP 12 ), a general Clean Water Act 2

17 404(e) permit, as well as the Corps issuance of NWP 12 itself. Appellants Sierra Club, et al., challenge both Corps actions as violating the National Environmental Policy Act ( NEPA ), 42 U.S.C et seq., the Clean Water Act ( CWA ), 33 U.S.C. 1344, and the Administrative Procedure Act ( APA ), 5 U.S.C. 701 et seq. On December 30, 2013, the United States District Court of the Western District of Oklahoma affirmed the agency actions. App The Sierra Club appeals from that order. STATEMENT OF FACTS I. LEGAL BACKGROUND A. National Environmental Policy Act NEPA requires federal agencies to take a hard look at the environmental consequences of an action, including all direct, indirect, and cumulative environmental impacts of the decision, as well as alternatives. 40 C.F.R (b); Pennaco Energy Inc. v. U.S. Dep't of the Interior, 377 F.3d 1147, (10th Cir. 2004). NEPA s purpose is to ensure that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts and that the relevant information will be made available to the larger audience that may also play a role in the decisionmaking process. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). 3

18 NEPA requires that all federal agencies prepare an environmental impact statement ( EIS ) for all major Federal actions significantly affecting the quality of the human environment. 42 U.S.C. 4332(C). The only exception is if the agency prepares an environmental assessment ( EA ) that results in a Finding of No Significant Impact ( FONSI ). 40 C.F.R , B. Clean Water Act Section 404 of the CWA prohibits the fill of U.S. waters unless authorized by a permit issued by the Corps. 33 U.S.C Before issuing a 404 permit for an individual project, the Corps must ensure, inter alia, that there are no practicable alternatives to the proposed discharge of fill, that all appropriate steps have been taken to minimize potential adverse impacts, and that destruction of wetlands has been avoided to the extent practicable. 33 C.F.R (r); 40 C.F.R The Corps must conduct an environmental review pursuant to NEPA when issuing individual 404 permits. 33 C.F.R (a)(4). The CWA also provides that the Corps may, after notice and opportunity for public hearing, issue general permits on a State, regional, or nationwide basis for any category of activities [that are] similar in nature, will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment. 33 U.S.C. 1344(e)(1). Projects authorized by a NWP do not need individual 404 permits 4

19 and do not go through the comprehensive, transparent, and site-specific environmental review that individual 404 permits require. 33 C.F.R (a). Projects that meet the terms of a NWP often do not undergo any project-specific NEPA analysis. II. THE CORPS ISSUANCE OF NWP 12 In February 2012, the Corps issued a final rule and Decision Document/FONSI reauthorizing NWP 12 along with 51 other NWPs. App. 400,508. NWP 12 permits the construction of pipelines and other utility lines, provided the activity does not result in the loss of greater than 1/2-acre of waters of the United States for each single and complete project. App However, for linear projects such as pipelines, NWP 12 defines single and complete project as all crossings of a single water of the United States (i.e., a single waterbody) at a specific location. App. 507 (emphasis added). Thus, NWP 12 allows project applicants to use NWP 12 repeatedly along a pipeline s length by treating each water crossing as a separate project. There is no limit to the number of times a single pipeline can use NWP 12, nor is there a maximum number of acres of 1 The Final Rule also contains a set of general conditions and definitions that apply to all of the NWPs, including NWP 12. App As such, any reference to NWP 12 herein includes both NWP 12 itself and the definitions and general conditions that apply to NWP 12. 5

20 wetlands that a project can destroy while still being eligible for authorization under NWP 12. In other words, NWP 12 allows the piecemeal approval of a project to avoid exceeding the 1/2-acre loss threshold that would trigger an individual 404 permit process. Under most circumstances, NWP 12 allows a project proponent to begin the construction activity without notifying the Corps or the public. However, if any of seven criterion are met, a proponent must submit a preconstruction notification ( PCN ) to the Corps district engineer. App (e.g., a PCN is required if the activity involves clearing forested wetlands, or if the activity would result in the loss of greater than 1/10-acre of waters of the U.S.). The permittee may then commence the activity if it does not receive written notice from the Corps within 45 days. App The Corps does not notify the public of PCN submissions or the Corps verification of the PCNs. III. THE CORPS VERIFICATION OF THE GULF COAST PIPELINE UNDER NWP 12 TransCanada Keystone Pipeline, LP s ( TransCanada s ) Gulf Coast Pipeline (or the Pipeline or the Project ) is a proposed 485-mile, 36-inch diameter pipeline that would transport 830,000 barrels per day (bpd) of crude oil from Cushing, Oklahoma to Nederland, Texas. The Pipeline is the southern half of the original Keystone XL pipeline project ( KXL ) that was rejected in 2012 by the U.S. Department of State ( DOS ). KXL would have transported 830,000 bpd 6

21 of tar sands crude oil 1,384-miles from Alberta, Canada, to the Texas Gulf Coast. Because KXL would cross the US-Canadian border, TransCanada applied for a Presidential Permit from DOS pursuant to Executive Order KXL also needed CWA 404 permit(s) from the Corps for thousands of water crossings. When TransCanada sought Corps authorization to proceed with KXL under NWP 12, the EPA objected, arguing that the project would result in significant cumulative effects in the aquatic ecosystem. App DOS denied TransCanada s application in January of 2012 and issued a Record of Decision that concluded the NEPA process and effectively chose the no action alternative. App TransCanada subsequently divided the project into two parts, reapplied for a Presidential Permit for only the northern part of KXL, and sought immediate approval of the southern segment as a stand-alone project. App In March and April of 2012, TransCanada submitted three PCNs to the Corps for the southern segment of KXL, now called the Gulf Coast Pipeline, one for each of the Corps districts the pipeline would cross. The Corps approved these under NWP 12 without any public notice or opportunity for involvement, and thus did not prepare an individual 404 permit for the Pipeline. App. 643,647,651. In total, the Corps approved the Gulf Coast Project s 2,227 water crossings as single and complete projects that each qualified under NWP 12. App

22 (654 water crossings in the Galveston District); App. 651 (618 water crossings in the Tulsa District); App. 643 (955 water crossings in the Fort Worth District). The Corps never analyzed the impacts of the Gulf Coast Pipeline as required by NEPA. SUMMARY OF ARGUMENT This is a de novo appeal of the district court s decision affirming the Corps issuance of NWP 12, and its three verifications of the 2,227 water crossings of the 485 mile Gulf Coast Oil Pipeline under NWP 12. The claims of the Appellants are challenges to final agency action under the APA as being arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. 706(2)(A). Specifically, Appellants claim the Corps did not comply with the NEPA and/or the CWA in these actions. I. NEPA CLAIMS A. The Corps Failed to Analyze the Risk and Impacts of Oil Spills The Corps approved the Gulf Coast Pipeline under CWA 404 using a twostage process it first issued NWP 12 for all oil pipelines with up to a 1/2-acre of wetlands loss under 404(e); and then verified each of the Pipeline s 2,227 water crossings separately as single and complete projects that each qualify under NWP 12. However, it is undisputed that the Corps did not analyze oil spills or impacts at either stage. 8

23 The Corps only NEPA document in this case was a 45-page Decision Document that included a Finding of No Significant Impact ( FONSI ), which it prepared for NWP 12. That Decision Document does not mention oil spills or impacts, even though the Corps estimates that it will permit pipelines and other projects 7,900 times per year for the 5-year duration of NWP 12. Therefore, the Corps did not meet the hard look requirement of NEPA, and it was arbitrary and capricious because the Corps entirely failed to consider an important aspect of the problem. Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, (10th Cir. 1994) (quoting Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). The district court erred in holding that Appellants waived these issues by not raising them in their NWP 12 comments. Sierra Club did submit extensive comments to the Corps on oil spills from this very pipeline when it was being considered as part of the KXL pipeline Environmental Impact Statement ( EIS ), before NWP 12 was issued. After several years of Sierra Club involvement in that process, the Corps changed the process and decided to approve half of KXL under NWP 12 without any project-specific NEPA review, and claimed Sierra Club should have raised oil spills in the NWP 12 comment process that was already finished. 9

24 Because the Corps was a cooperating agency in the KXL process, it had that EIS s 103-page oil spill analysis while it was considering NWP 12 comments. Therefore, the Corps had independent knowledge of the issue. In addition, leaks and spills from oil pipelines crossing jurisdictional waters is an obvious issue that the agency should have considered. Forest Guardians v. U.S. Forest Serv., 641 F.3d 423, 430 (10th Cir. 2011) (waiver is inapplicable where the problems underlying the claim are obvious or otherwise brought to the agency s attention ). Therefore, Plaintiffs claims are not waived. B. The Corps Failed to Analyze Cumulative and Uplands Impacts The Decision Document acknowledged that NEPA requires consideration of all environmental impacts, not only those to aquatic resources, but then limited its analysis to 1/2-acre fills of wetlands and assumed that all other impacts would be addressed by the lead agency preparing the environmental impact statement for specific pipelines. App However, as this case demonstrates, no other agency necessarily prepares any further NEPA analysis. The Corps approved the construction of the Project through 2,227 jurisdictional waters without ever analyzing its direct, indirect, and cumulative environmental impacts as required by NEPA. These waterways are spread along the entire pipeline such that no part of it could be constructed without Corps approval under 404 of the Clean Water Act. Thus the Corps acted as the 10

25 gatekeeper for its approval, and was required to analyze the full range of impacts. Wyoming Outdoor Council Powder River Basin Res. Council v. U.S. Army Corps of Engineers, 351 F. Supp. 2d 1232, 1242 (D. Wyo. 2005) (citing Utahns for Better Transp. v. U.S. Dep't of Transp., 305 F.3d 1152, 1173 (10th Cir. 2002)). In such situations, the Corps has control and responsibility that requires a NEPA review of the entire pipeline, not merely the jurisdictional water. 33 C.F.R. 325 App. B; Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113 (9th Cir. 2005). C. Failure to Conduct a NEPA Analysis at the Verification Stage The Corps verification of the Gulf Coast Pipeline under NWP 12 was a major federal action requiring a NEPA analysis, because it constitutes the "approval of specific projects by permit or other regulatory decision C.F.R Regardless of whether the Corps can verify some pipelines under NWP 12 without any project-level NEPA review, it must prepare a NEPA analysis for the Gulf Coast Pipeline. Where, as here, the Corps uses NWP 12 over two thousand times to approve a single interstate crude oil pipeline, the Corps district engineers are tasked with evaluating the cumulative effects of all water crossings on the Project, and neither the Corps nor any other agency analyzed the impacts of the overall pipeline under NEPA, the Corps must do so upon project verification. In the appeal of the preliminary injunction decision before this Court, Judge Martinez filed a dissenting opinion that contained the only discussion of the merits. 11

26 Judge Martinez found that it is patently ludicrous for Appellees to characterize the Corps involvement in the subject project as minimal, and thus the Corps involvement in the Gulf Coast Pipeline was a major Federal action that required a comprehensive NEPA analysis for the project. App In sum, whether the Corps should have analyzed the Gulf Coast Pipeline under NEPA upon issuance of NWP 12 or when it verified the Project under NWP 12 is immaterial, because it is undisputed that the Corps did not perform that analysis at either stage. Therefore, both the Corps issuance of the NWP 12 Decision Document and FONSI and its verification of the Gulf Coast Pipeline violated NEPA. II. CWA CLAIMS The CWA 404(e) authorizes the Corps to issue nationwide permits only for categories of activities that it determines would have only minimal adverse effects on the environment, both individually and cumulatively. 33 U.S.C. 1344(e). The Corps cannot issue a NWP for categories of projects that would have potentially-significant impacts, and those projects require individual 404 permits. In this case, the Corps issued NWP 12 for pipelines with up to 1/2-acre of wetlands loss, but allowed unlimited use of NWP 12 on a single pipeline. Thus, NWP 12 violates 404(e) because it effectively permits massive pipeline projects 12

27 with unlimited impacts. For example, the Gulf Coast Pipeline uses NWP 12 2,227 times, resulting in a project that would cut a permanent 100 foot-wide swath through everything in its path for nearly 500 hundred miles. A similar tar sands oil pipeline ruptured in Michigan in 2010, spilling 843,444 gallons of oil into the Kalamazoo River. App By any measure, the potential impacts of the Gulf Coast Pipeline cannot be considered minimal. The district court held that the NWP 12 does not violate 404(e) because it requires district engineers to evaluate the cumulative environmental effects of overall pipelines, thereby ensuring projects permitted under NWP 12 would have no more than minimal environmental impacts. However, this bifurcated approval process violates 404(e), which allows issuance of a NWP only after the Corps determines that a category of projects would have only minimal adverse environmental impacts, and after the public has had an opportunity to participate. Furthermore, there is no guarantee that the district engineers will actually evaluate the environmental impacts of an overall project, as Corps notice is only required for some projects. As demonstrated by the Gulf Coast Pipeline, even where Corps notice is required, the district engineers do not evaluate the overall project. Thus, the Corps must make the requisite minimal effects determination when it issues the NWP, as that marks the completion of the 13

28 decision-making process. Nat l Ass n of Home Builders v. U.S. Army Corps of Engineers, 417 F.3d 1272, (D.C. Cir. 2005). Finally, the Corps verifications violated NWP 12 and CWA 404(e) because they failed to evaluate the cumulative effects of verifying each of the 2,227 water crossings along the Project. The Final Rule requires verification decisions to include an evaluation of the individual crossings to determine whether they individually satisfy the terms and conditions of the NWP(s), as well as the cumulative effects caused by all of the crossings authorized by NWP App However, none of the three verification decisions discuss the cumulative effects of the Gulf Coast Pipeline or explain whether they would be minimal. As Judge Martinez found in his dissent, [t]here is no mention in the administrative record of any collaboration between the Districts with regard to the cumulative impact of the entire length of the Gulf Coast Pipeline and there are no specific findings in support of the Corps conclusion that the Gulf Coast Pipeline, as a whole, would have minimal cumulative impact. App As such, the approval of the use of NWP 12 for construction of the Gulf Coast Pipeline violated the law. Id. 14

29 STANDARD OF REVIEW This case involves review of an agency action. The Tenth Circuit review[s] de novo a district court's decision regarding an agency action. Public Lands Council v. Babbitt, 167 F.3d 1287, 1293 (10th Cir. 1999). In reviewing a district court's review of an agency decision, the identical standard of review is employed at both levels; and once appealed, the district court's decision is afforded no particular deference. Valley Camp of Utah, Inc. v. Babbitt, 24 F.3d 1263, 1267 (10th Cir. 1994)(internal quotations omitted); see also Olenhouse, 42 F.3d at An agency s compliance with NEPA, the CWA, and applicable regulations, it is judged under the APA, which requires a reviewing court to set aside agency actions that are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. 706; Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971); Motor Vehicle Mfrs., 463 U.S. at 43. An agency's action must be upheld, if at all, on the basis articulated by the agency itself when it made the decision. Pennaco, 377 F.3d at 1157 (quoting Motor Vehicle Mfrs., 463 U.S. at 50). The Court cannot affirm a decision where the agency has failed to provide a reasoned explanation for its action. Olenhouse, 42 F.3d at The Corps is not due deference with respect to compliance with NEPA. Park County Res. Council. v. U.S. Dep t of Agric., 817 F.2d 609, 620 (10th Cir. 1987) 15

30 ( [d]eference is inapplicable in the NEPA context, [because] NEPA imposes duties on agencies; agencies do not exist to administer NEPA. ), rev d on other grounds, 956 F.2d 970 (10th Cir. 1992); Grand Canyon Trust v. FAA, 290 F.3d 339, (D.C. Cir. 2002). ARGUMENT I. THE CORPS VIOLATED NEPA BY APPROVING THE GULF COAST PIPELINE WITHOUT EVER ANALYZING ITS ENVIRONMENTAL IMPACTS, INCLUDING THE RISKS AND IMPACTS OF OIL SPILLS A. The Corps Issuance of NWP 12 Violated NEPA 1. The NWP 12 Decision Document Failed to Analyze Oil Spills The Decision Document violates NEPA because it contains absolutely no analysis of the risk of oil spills. It does not analyze spill frequency, potential spill amounts, how different types of waterways will be impacted, the impacts of spills of different types of oil, and in fact does not mention crude oil at all. The Corps omission is significant considering that NWP 12 is a final permit authorizing crude oil pipelines to be built in U.S. waters, often with no further involvement by the Corps or any other federal agency. 2 NWP 12 will be used by oil pipelines and other utilities an estimated 7,900 times per year for five years. App Incredibly, the 2 [I]ndividual review of each activity authorized by an NWP will not normally be performed, except when pre-construction notification to the Corps is required App. 511,

31 Corps fails to even mention the possibility that pipelines might leak or spill into U.S waters. The Corps silence on oil spill impacts violates NEPA s hard look requirement and NEPA s purpose of informed agency decision making. Robertson, 490 U.S. at 349; Pennaco, 377 F.3d at It also means that the public, including farmers, ranchers, and landowners whose private property the pipeline would cross, are precluded from any opportunity to evaluate the environmental and safety risks associated with these pipelines. The Corps failed to consider an important aspect of the problem, which renders its action arbitrary and capricious. Olenhouse, 42 F.3d at The Corps obligation under NEPA to analyze oil spills in issuing 404 permits is well-recognized. In Stop the Pipeline v. White, 233 F. Supp. 2d 957, 967 (S.D. Ohio 2002), the Corps was required to analyze oil spills in issuing a 404 permit for an oil pipeline. In Sierra Club v. Sigler, 695 F.2d 957, 962 (5th Cir. 1983), the court struck down a Corps EIS for a dredging project that would allow increased oil tanker access in a port because its oil spill analysis did not analyze the worst case scenario of an oil tanker spill. Id. at Similarly, Ocean Advocates v. U.S. Army Corps of Engineers, 402 F.3d 846, 867 (9th Cir. 2005) held that the Corps was required to analyze risks of tanker oil spills before issuing a 404 permit for a dock extension. Ocean Advocates 17

32 discussed Dep't of Transp. v. Public Citizen, 541 U.S. 752 (2004), which held that an agency s NEPA analysis need not analyze impacts that the agency had no ability to prevent, and thus would occur regardless of the agency decision. By contrast, Ocean Advocates found that a reasonably close causal relationship exists between the Corps' issuance of the permit, the environmental effect of increased vessel traffic, and the attendant increased risk of oil spills, and thus the Corps had to analyze oil spills in an EIS. Ocean Advocates, 402 F.3d at 868 (quoting Public Citizen, 541 U.S. at 767). In each of these cases, the Corps 404 permits were only for the dredge/fill of U.S. waters, yet the Corps was required to analyze oil spill risks from the activity that the dredge/fill would allow (i.e., oil tanker traffic and oil pipeline operation). Likewise in this case, the Corps 404 action determines whether oil pipelines will be built and operate in U.S. waters. This causal connection remains the same whether the Corps is permitting a single project under an individual permit or 7,900 projects per year through NWP 12. Thus, the Corps must analyze potential oil spills from pipelines transporting crude oil through U.S. waters, which the 404 permit will allow. The Corps issuance of NWP 12 without doing so is a clear NEPA violation. 40 C.F.R , , and

33 2. Appellants Oil Spill Claims are not Barred by Waiver The District Court erred in finding Appellant s waived their oil spill claim by not raising the issue in their comments on NWP 12. App Parties challenging an agency's compliance with NEPA must "structure their participation so that it... alerts the agency to the [parties'] position and contentions" in order to allow the agency to give the issue meaningful consideration. Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 553 (1978). However, the exhaustion of administrative remedies doctrine is not a jurisdictional requirement for suits challenging agency action. Wyoming Lodging & Rest. Ass'n. v. U.S. Dept. of Interior, 398 F. Supp. 2d 1197, 1210 (D. Wyo. 2005). Furthermore, this court has held that exhaustion is disfavored in the NEPA context. Jette v. Bergland, 579 F.2d 59, 63 (10th Cir. 1978), overruled on other grounds by Vill. of Los Ranchos v. Marsh, 956 F.2d 970 (10th Cir. 1992) ( [t]he court is not supposed to cooperate in avoidance of the provisions of [NEPA] by putting great emphasis upon exhaustion of remedies ); see also Cnty. of Suffolk v. Sec y of Interior, 562 F.2d 1368, 1385 (2d Cir. 1977) (waiver is a disfavored doctrine in the NEPA context ). A party s NEPA claims are not waived if: (a) the agency had independent knowledge of the issue; (b) it was otherwise brought to the agency s attention; or (c) the issues are so obvious that the party need not point them out. Ilio'ulaokalani 19

34 Coal. v. Rumsfeld, 464 F.3d 1083, 1093 (9th Cir. 2006) (claims are not waived if the agency had independent knowledge of the very issue that concern[ed] the plaintiffs. (citing Public Citizen, 541 U.S. at 765) (unnecessary to point out obvious flaws in an agency s NEPA analysis); Forest Guardians, 641 F.3d at 430 (waiver is inapplicable where the problems underlying the claim are obvious or otherwise brought to the agency s attention ) (quoting Forest Guardians v. U.S. Forest Serv., 495 F.3d 1162, 1170 (10th Cir. 2007)); Vermont Public Interest Research Group v. U.S. Fish & Wildlife Service, 247 F.Supp.2d 495, 516 (D. Vt. 2002) (exhaustion not required where an agency was aware of the issue before its NEPA analysis and had an opportunity to address it). Each of these exceptions apply in this case. a. Sierra Club brought the issue of oil spills to the Corps attention before it issued NWP 12 Sierra Club provided the Corps with information on the risks and impacts of pipeline oil spills into U.S. waters while the Corps was considering NWP 12. Before the Gulf Coast Pipeline became a stand-alone project in 2012, it was part of the KXL pipeline for which DOS was acting as lead agency in the preparation of an EIS and the Corps was acting as a cooperating agency. Sierra Club was actively 20

35 engaged in that process, and in that context submitted extensive comments on pipeline oil spills in U.S. waters to the Corps. 3 That led to the 103-page analysis of oil spills in the KXL EIS (App. 952), which included a discussion of the 14 spills on TransCanada s Keystone I pipeline in its first year of operation, including a 20,000 gallon spill in North Dakota (App ); and a major pipeline rupture in Kalamazoo, Michigan in 2010 that spilled 845,000 gallons of tar sands crude oil directly into the Corps jurisdictional waters (App. 1059). Sierra Club s submission of oil spill comments in the KXL NEPA process rather than in the NWP 12 NEPA process was justified. Before 2012, every pipeline comparable to the Gulf Coast Pipeline had undergone a project-specific NEPA analysis that analyzed oil spill risks, so that was the appropriate process in which to comment oil spills. For example, in Stop the Pipeline, 233 F. Supp. 2d at , a 149-mile oil pipeline was proposed primarily on private lands. The applicant sought verification from the Corps under NWP 12 for the pipeline s 408 water crossings spread along the length of the pipeline, which constituted the only federal approval required. Id. at 961. The Corps determined that the impacts of the overall project would be more than minimal and declined to verify the project under NWP 12, requiring instead 3 App. 1062,

36 an individual 404 permit and a NEPA analysis that covered the entire pipeline. Id. at 963; see also Sierra Club v. Clinton, 746 F. Supp. 2d 1025, 1028 (D. Minn. 2010) (the Corps and DOS prepared an EIS for a 326-mile crude oil pipeline); Hammond v. Norton, 370 F. Supp. 2d 226, 253 (D.D.C. 2005) (requiring BLM to analyze a domestic oil pipeline that under NEPA, including the portions on private land); Wilderness Soc. v. Morton, 479 F.2d 842 (D.C. Cir. 1973) (Department of the Interior prepared an EIS for an 789-mile oil pipeline); City of Los Angeles v. U.S. Dep't of Agric., 950 F. Supp (C.D. Cal. 1996) (Forest Service prepared an EIS for a 171-mile oil pipeline); Spiller v. Walker, A-98-CA-255-SS, 2002 WL (W.D. Tex. July 19, 2002) aff'd sub nom Spiller v. White, 352 F.3d 235 (5th Cir. 2003) (requiring the Corps and other agencies to analyze oil pipeline under NEPA). 4 Major oil pipelines always underwent this project-level NEPA review by some agency, and the Gulf Coast Pipeline was no different, as its impacts were being considered as part of the KXL EIS. In fact, the NWP 12 Decision Document specifically contemplated that EIS s would continue to be prepared for specific 4 See also No Oilport! v. Carter, 520 F. Supp. 334 (W.D. Wash. 1981) (agencies prepared an EIS for an 1,500 mile oil pipeline from Washington to Minnesota); Bucks Cnty. Bd. of Comm'rs v. Interstate Energy Co., 403 F. Supp. 805 (E.D. Pa. 1975) (agency prepared an EIS for an 83-mile oil pipeline in Pennsylvania); Sohio Transp. Co. v. United States, 5 Cl. Ct. 620, 622 (1984) aff'd, 766 F.2d 499 (Fed. Cir. 1985) (BLM prepared an EIS for an oil pipeline from the California coast to Midland, Texas). 22

37 projects. App Therefore, there was no reason to submit redundant oil spill comments in the NWP 12 NEPA process. There was no reason to think a major crude oil pipeline such as the Gulf Coast pipeline could or would ever be approved with no NEPA analysis other than the NWP 12 Decision Document, which only focused on 1/2-acre fills of wetlands. However, following the rejection of the first KXL application, President Obama issued a Presidential Memorandum on March 22, 2012 that directed federal agencies to expedite their reviews of pipeline infrastructure projects. App Shortly thereafter, TransCanada separated the KXL project into two segments, and the Corps decided to verify the southern segment, now called the Gulf Coast Pipeline, under NWP 12 without any project-level NEPA analysis. To the best of Appellants knowledge, the Corps had never before verified a project of this magnitude under NWP 12 without any agency preparing a project-specific NEPA analysis. In short, this was not a situation where Appellants sat idly by during the commenting process and then attempted to ambush an agency by making new demands during litigation, as the district court suggested. App Sierra Club prudently submitted oil spill comments in the project-level NEPA review that has always occurred for such pipelines, and in fact was occurring for this project. It was only later that the Corps changed its position and claimed that the only 23

38 opportunity to comment on oil spills was the NWP 12 NEPA review that had already concluded. b. The Corps had independent knowledge of the oil spill issue The Corps position that it was not aware that oil pipelines pose a risk of oil spills is disingenuous at best. The Corps had specific information of oil spills from pipelines at the time it was considering NWP 12, and had an opportunity to analyze those impacts. Therefore, Appellants claims are not waived. Forest Guardians, 641 F.3d at 430; Vermont Public Interest, 247 F.Supp.2d at 516. The Corps was a cooperating agency on the KXL EIS that, which predated the Corps February 2012 issuance of NWP 12, so the Corps was fully aware of that oil spill data that included a discussion of oil spills into jurisdictional waters. See, e.g., App (identifying potential oil pipeline spills, particularly on the Gulf Coast segment); App. 982, 1004, 1030, 1037, (discussing wetlands impacts). In fact, the Corps has conceded that in this case. Land Decl., App. 154 ( I was the Project Manager for the Keystone XL Project...[and] I am familiar with the potential for post-construction oil spills as discussed in [the Keystone XL] FEIS. ). Therefore, there is no dispute that the Corps had specific information on pipeline oil spills while it was considering re-issuing NWP 12. Several other factors make clear that this is an issue that the Corps knew about prior to its issuance of NWP 12. The massive Kalamazoo tar sands oil 24

39 pipeline spill that occurred in Corps jurisdictional waters pre-dated issuance NWP 12. App. 806, The Corps has a long-standing practice of analyzing oil spills when issuing 404 permits. See, e.g., Stop the Pipeline, 233 F. Supp. 2d at 967; Sigler, 695 F.2d at 962; Ocean Advocates, 402 F.3d 867. The Corps even issued NWP 20 for oil spill cleanup activities in U.S. waters simultaneously with NWP 12. App c. The risk of oil spills and impacts are obvious Appellants claims are also not waived because the lack of an analysis of oil spills is an obvious flaw. Public Citizen, 541 U.S. at ; Forest Guardians, 641 F.3d at 430. Where oil pipelines are built in U.S. waters, the risk of spills impacting waterways is an obvious issue, especially considering the welldocumented history of oil pipeline accidents. The KXL EIS includes a history of U.S. pipeline spills (App ); refers to PHMSA s online database of pipeline incident reports (id.); acknowledges 2,672 significant oil pipeline spills in the last 20 years totaling over two billion dollars in damage (App. 961); analyzes oil spill frequency, risk and historic volumes (App ); see also App (PHMSA s corrective action order for the tar sands spill in Mayflower, AR); App. 964 (PHMSA finding that the 14 spills in the first year of a TransCanada pipeline are not unusual start-up issues that occur on pipelines and are not unique. ). 25

40 Nevertheless, the district court found that the impacts of oil spills from oil pipelines permitted under NWP 12 was not obvious because the Corps relied an EPA list identifying the top ten causes of water pollution nationwide, which did not list oil spills. App However, the fact that oil spills are not among the top ten sources of pollution for all waters nationwide (including oceans and coastal shorelines) does not mean that oil spills are not a risk of pollution of waters crossed by oil pipelines themselves. NEPA is not limited to the top ten causes of impairment nationwide. 3. The Decision Document Failed to Analyze the Cumulative Impacts of Oil Pipelines The Corps violated NEPA by failing to adequately analyze the cumulative impacts of oil pipelines permitted under NWP 12, including impacts to non-aquatic areas. Instead, the Corps deferred that analysis to the project level to be completed by district engineers and/or other agencies, but that additional cumulative effects evaluation never occurred. The district court erred by holding that the Corps was not required to analyze the cumulative impacts of oil pipelines permitted under NWP 12, including impacts on non-federal areas (see, e.g., App. 2822); that the Corps adequately analyzed cumulative effects, and did not defer its analysis; rather, it simply added an additional layer of review at the project level (App. 2823, 2832); and that 26

41 Appellants waived the issue of cumulative effects because no party raised it during the administrative process (App. 2821, 2823). a. NEPA requires an analysis of cumulative effects, including impacts to uplands NEPA requires that the Corps consider the direct, indirect and cumulative impacts of past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-federal) or person undertakes such other actions. 40 C.F.R The cumulative environmental effects of using NWP 12 thousands of times to approve a single linear pipeline project includes the host of impacts that will result from the overall project. Because oil pipelines such as the Gulf Coast Pipeline could not proceed without NWP 12, the Corps must analyze their cumulative impacts and cannot limit that analysis to waterways. The NWP 12 Decision Document admits that NEPA requires consideration of all environmental impacts, not only those to aquatic resources App In Wyoming Outdoor Council, 351 F. Supp. 2d at 1237, the Corps issued a general permit for dredging and filling associated with oil and gas development in Wyoming, but limited its cumulative impacts analysis to jurisdictional waters. The court held that when an oil and gas developer needs to discharge dredge and fill material into U.S. waters in conjunction with a project, the Corps becomes the gatekeeper for approval of the project. Id. at 1242 (citing Utahns for Better 27

42 Transp., 305 F.3d at 1173). Therefore, the Corps is obligated to assess cumulative impacts relating to projects in which the use of [the general permit] is essential to completion of the project, and that cumulative impacts analysis cannot be limited to impacts to wetlands and must include uplands. Id. at 1242, 1245; see also Save Our Sonoran, 408 F.3d at (Corps NEPA analysis was improperly limited to jurisdictional waters that ran through 5% of construction site); Stewart v. Potts, 996 F. Supp. 668, (S.D. Tex. 1998) (Corps NEPA analysis of a golf course must consider impacts to uplands forests because the project could not proceed without wetlands fill); White Tanks Concerned Citizens, Inc. v. Strock, 563 F.3d 1033, (9th Cir. 2009). The host of non-aquatic impacts associated with this pipeline were described in the KXL EIS. That indicates the pipeline construction would damage soils, wildlife habitat, native plant species, air quality, aesthetics, surface water, groundwater and fisheries, in addition to the impacts from wetlands fill. App That FEIS also analyzed the impacts to non-aquatic resources from oil pipeline leaks and spills. App b. The Corps failed to analyze the cumulative effects of NWP 12 That type of analysis is wholly lacking here. The Corps cumulative effects analysis consists of a five page general overview of activities that have contributed to impairment of water resources nationwide, and historical rates of 28