The Clean Water Act (CWA); 33 USC §§ 1341 & 1344 (CWA §§ 404 & 401); Pipeline permits; Whether issuance of the water quality certification violated the Administrative Procedure Act (APA); Requirement that the “least environmentally damaging practicable alternative” (LEDPA) trenching methods be used in constructing the pipeline; 40 CFR § 230.10(a)(3); Post-issuance mitigation; Cumulative effects

The court denied petitioners-Appalachian Voices and Sierra Club’s petition for review of respondent-Army Corps of Engineers’ (the Corps) decision to issue a permit to intervenor-respondent-Tennessee Gas Pipeline Company (TGP) pursuant to CWA § 404 for a proposed natural gas pipeline. It rejected petitioners’ argument that the Corps acted arbitrarily and capriciously in violation of the APA. Petitioners alleged that the Corps failed to comply with federal law in issuing the permit, which allows “TGP to discharge certain materials in bodies of water while constructing and operating the Pipeline.” The Pipeline’s proposed “construction process involved 149 stream crossings and disturbances to two ponds and six wetlands.” Petitioners argued that the Corps did not adhere to the § 404(b)(1) Guidelines’ requirement that TGP use the LEDPA trenching methods when constructing the Pipeline. They asserted that “the Corps erred by not conducting a crossing-by-crossing analysis to determine the LEDPA crossing method at each crossing.” But the court concluded that their “contentions are belied by the record evidence and the Corps’ reasoned explanation.” When dealing with a pipeline involving “special aquatic sites,” the Corps is required by the § 404(b)(1) Guidelines “to presume the availability of practicable alternatives not involving the special aquatic site ‘unless clearly demonstrated otherwise.’" The court held that there was no evidence that the Corps acted “arbitrarily or capriciously in evaluating TGP’s proposed waterbody crossing methods” or abdicated “its duty to select the least environmentally damaging practicable rock-removal method at each crossing along the Pipeline’s path.” The court also noted that “the Corps appended several ‘Special Permit Conditions’ to the § 404 permit it issued to TGP” and that “‘the Corps may rely on post-issuance mitigation procedures to minimize environmental impacts.’” The court held that the “Corps reasonably relied on such post-issuance mitigation procedures in the instant case. By instructing TGP to use the ‘least impactful trenching technique practicable,’ the Corps effectively conditioned its approval of the § 404 permit on the future implementation of the Guidelines’ LEDPA requirement.” In light of the court’s “previous approval of such future implementation schemes,” it found no reason to now “conclude that the Corps’ imposition of such a scheme with regards to rock removal methods violated the APA.” Among other things, it also determined that, given the applicable limited level of review, “the Corps properly provided support for its suspended particulates and turbidity conclusion.” And it rejected petitioners’ cumulative effects argument, concluding that the Corps did “assess cumulative effects in its analysis . . . .”