ORDER RE MOTIONS FOR SUMMARY JUDGMENT

SHARON L. GLEASON, District Judge.

Plaintiffs Sam Kunaknana, et al. ("Kunaknana Plaintiffs") and the Center for Biological Diversity ("CBD") filed separate lawsuits challenging Defendant U.S. Army Corps of Engineers'1 decision to issue a permit to ConocoPhillips Alaska, Inc. to fill certain wetlands in the National Petroleum Reserve — Alaska ("NPR-A") in order to develop a drill site known as Colville Delta 5 ("CD-5").2 In their complaints, Plaintiffs assert that the Corps' issuance of the permit violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4327, and Section 404 of the Clean Water Act ("CWA"), 33 U.S.C. § 1344.3 ConocoPhillips, the Arctic Slope Regional Corporation ("ASRC"), the State of Alaska, the North Slope Borough, and Kuukpik Corporation have joined both actions as Intervenor-Defendants in support of the Corps.4 Kuukpik is the Alaska Native Claims Settlement Act village corporation for the Inupiat Eskimo Village of Nuiqsut.5

Challenges to agency decisions brought in this federal district court are resolved through summary judgment motions.6 Pursuant to the Court's Order Establishing Joint Case Management and a Case Schedule, the summary judgment motions in the two lawsuits have been jointly managed.7 Presently before the Court are CBD's and the Kunaknana Plaintiffs' Motions for Summary Judgment.8 The Corps and Intervenor-Defendants have each filed a single response in opposition to both Plaintiffs' motions,9 which also serves as a cross-motion for summary judgment,10 and Plaintiffs have replied.11 No party requested oral argument, and oral argument was not necessary to the Court's decision.

For the reasons discussed herein, CBD's action will be dismissed because CBD lacks standing. The Kunaknana Plaintiffs' Motion for Summary Judgment will be granted on their NEPA claim to the extent they assert that the Corps failed to provide a reasoned explanation in the record for its decision not to conduct a supplemental NEPA analysis. This Order does not determine whether a supplemental NEPA analysis is required, nor does it determine the appropriate remedy for the Corps' NEPA violation. This Order also does not resolve the Kunaknana Plaintiffs' CWA claim. Instead, the Court requests further briefing from the parties as to how this case should proceed at this juncture.

STATUTORY FRAMEWORK, FACTUAL BACKGROUND, AND PROCEDURAL HISTORY

I. Statutory and Regulatory Framework.

A. Section 404 of the Clean Water Act.

Congress enacted the CWA "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters."12 To achieve this goal, the CWA prohibits the discharge of any pollutant into navigable waters unless authorized by a permit.13 "Navigable waters" includes certain wetlands,14 such as the area in dispute here.

Section 404 of the CWA governs permitting for the discharge of dredged or fill material into navigable waters.15 The Corps is responsible for issuing Section 404 permits, and it does so according to EPA's Section 404(b)(1) Guidelines.16 Those guidelines state in relevant part: "[N]o discharge of dredged or fill material shall be permitted if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences."17 This provision requires the Corps to select what the parties in this controversy refer to as the Least Environmentally Damaging Practicable Alternative, or "LEDPA."

B. National Environmental Policy Act.

NEPA declares "a national policy ... to promote efforts which will prevent or eliminate damage to the environment."18 It is a procedural statute, designed to achieve its stated policy "by focusing Government and public attention on the environmental effects of proposed agency action," thereby ensuring "that the agency will not act on incomplete information, only to regret its decision after it is too late to correct," and that "the public and other government agencies [can] react to the effects of a proposed action at a meaningful time."19 Regulations promulgated by the Council on Environmental Quality ("CEQ") provide guidance on the application of NEPA.

NEPA requires federal agencies to prepare an environmental impact statement ("EIS") for all "major Federal actions significantly affecting the quality of the human environment."20 In an EIS, an agency must take "a `hard look' at the potential environmental consequences of [its] proposed action."21 It must also "study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources."22 Under CEQ regulations, "[a] cooperating agency may adopt without recirculating the [EIS] of a lead agency when, after an independent review of the statement, the cooperating agency concludes that its comments and suggestions have been satisfied."23

In view of NEPA's purpose to ensure fully informed decision-making, "an agency that has prepared [or adopted] an EIS cannot simply rest on the original document. The agency must be alert to new information that may alter the results of its original environmental analysis, and continue to take a `hard look at the environmental effects of [its] planned action....'"24 CEQ regulations require the agency to prepare a supplemental EIS ("SEIS") if (1) "[t]he agency makes substantial changes in the proposed action that are relevant to environmental concerns"; or (2) "[t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts."25 CEQ guidelines provide that "[a]s a rule of thumb, ... EISs that are more than 5 years old should be carefully reexamined to determine if the[se] criteria ... compel preparation of an EIS supplement."26 The agency "must make a reasoned decision whether an SEIS is required," and if it decides an SEIS is not required, it must document that decision in the record.27

II. Factual Background.

A. The NPR-A, the Colville River Delta, and the City of Nuiqsut.

Established in 1923, the NPR-A on Alaska's North Slope is "the largest single unit of public land in the United States and covers 23.6 million acres. It is also an important habitat for vegetation, fish, and wildlife."28 In a 1980 appropriations bill, Congress directed the Secretary of the Interior to conduct "an expeditious program of competitive leasing of oil and gas in the [NPR-A]."29 Presently, the Bureau of Land Management ("BLM") administers the NPR-A.

In the eastern half of the NPR-A, the Colville River flows east along the southern boundary and then north along the eastern boundary, eventually making its way through a large delta before emptying into the Beaufort Sea.30 That delta, aptly termed the Colville River Delta, covers approximately 250 square miles31 and "is relatively flat, tundra-covered terrain, with local relief produced by a complex network of lakes interspersed with low-lying ridges and channels."32 It is the largest delta in northern Alaska, draining 29% of the North Slope.33 It is an area "recognized internationally for its biological diversity and richness" and "regionally for its importance to fish, wildlife, and subsistence resources."34

The City of Nuiqsut is one of only two permanent population centers within the Colville River Delta.35 Approximately 500 people live in Nuiqsut, which is located on the west bank of the Nigliq Channel of the Colville River, roughly 15-20 miles from the Beaufort Sea.36 The eastern boundary of the NPR-A is located just west of the Nigliq Channel, and Nuiqsut is just inside that boundary.37 "To this day, the Inupiat people of Nuiqsut have a subsistence-based economy, with caribou, moose, birds, fish, seals and bowhead whales as primary food sources."38

B. The Alpine Oil Field and the 2004 Alpine Satellites EIS.

In the winter of 1994-1995, ARCO Alaska and its partners discovered the Alpine oil field in the Colville River Delta.39 In 1998, the Corps issued a permit to ARCO to fill 98.4 acres in order to construct two drill pads, CD-1 and CD-2, as well as the Alpine Central Processing Facility ("ACPF"), located at CD-1.40 CD-1 and CD-2 are east of the Nigliq Channel but west of the Colville River mainstem and outside of the NPR-A.41 A pipeline and road connects CD-2 to CD-1, and CD-1 is connected via pipeline to the Trans-Alaska Pipeline that is further to the east.42 CD-1 and CD-2 are both approximately eight miles north of Nuiqsut.43

In 2001, ARCO's successor, ConocoPhillips, announced the discovery of additional oil in the area to the west of Alpine, including areas within the NPR-A.44 Thereafter, BLM initiated a review process pursuant to NEPA to assess the environmental impact of ConocoPhillips's proposal to develop five drill sites: CD-3 through CD-7.45 ConocoPhillips proposed placing 20 to 30 wells on each of the five pads, transporting unprocessed three-phase fluid (i.e., oil, water, gas) to ACPF for processing, and then transporting processed oil to the Trans-Alaska Pipeline System.46 The proposed CD-3 and CD-4 drill sites are located east of the Nigliq Channel and outside the NPR-A on land owned by the State of Alaska and Kuukpik, respectively.47 CD-3 is to the north of CD-1 and CD-2, and CD-4 is to the south.48 The proposed CD-5 drill site is to the west of CD-1 and CD-2, across the Nigliq Channel and within the northeastern boundary of the NPR-A.49 The proposed CD-6 and CD-7 drill sites, which have not yet been developed, are even further to the west and within the NPR-A.50

The NEPA review process culminated in 2004 with the publication of the 2,500-page Alpine Satellite Development Plan Final EIS ("Alpine Satellites EIS").51 The EIS was prepared by BLM together with four cooperating entities: the Corps, EPA, U.S. Coast Guard, and State of Alaska.52 The EIS analyzes six alternatives: ConocoPhillips's proposed action (Alternative A), conformance with existing NPR-A lease stipulations without exception (Alternative B), alternative access routes (Alternative C), roadless development (Alternative D), no action (Alternative E), and BLM's preferred alternative (Alternative F).53

Three of the EIS alternatives are relevant to this appeal. Alternative A includes construction of gravel roads and bridges "connect[ing] CD-4 through CD-7 to the existing Alpine Field road."54 A proposed road would run from CD-2 west to CD-5 and would include a 1,200-foot bridge over the Nigliq Channel and an 80-foot bridge across a lake to access CD-5.55 Alternative F is similar to Alternative A with respect to CD-5, except that it would require that the bridge across the Nigliq Channel extend further and that the approach to the bridge provide for natural water flow.56 In Alternative C-1, the proposed road to CD-5 would be shifted to the south, with a bridge crossing the Nigliq Channel at a location southwest of CD-4.57

In December 2004, the Corps issued a Section 404 permit to ConocoPhillips for CD-3 and CD-4 based on the Alpine Satellites EIS.58

C. The CD-5 Permitting Process.

i. 2005 Permit Application.

In September 2005, ConocoPhillips submitted an application to the Corps for a Section 404 permit to develop CD-5.59 ConocoPhillips's proposal in this application was similar to Alternatives A and F in the Alpine Satellites EIS. ConocoPhillips proposed a 9.8-acre drill pad with up to 22 wells, a 4.2 mile gravel access road from CD-2 to CD-5, a 1,250-foot bridge over the Nigliq Channel, and a shorter 80-foot bridge over a lake, with a total fill of 45.1 acres.60 According to Lanston Chinn, CEO of Kuukpik, the Nuiqsut community "vehemently opposed" the proposed location of the Nigliq Channel bridge in the 2005 proposal "because of concerns about long term erosion, potential impacts on fish habitat, sedimentation and navigability of the Channel, and other potential impacts of the proposed bridge on the community."61 Ultimately, in February 2008, ConocoPhillips asked the Corps to "suspend processing of the application for the CD 5 project while ConocoPhillips worked with the Native community to resolve project related issues."62 The Corps closed the application file in May 2008.63

ii. Memorandum of Agreement Between Kuukpik and ConocoPhillips and 2009 Permit Application.

In December 2008, Kuukpik and ConocoPhillips entered into a Memorandum of Agreement ("MOA") in which ConocoPhillips agreed to certain terms designed to ameliorate the impacts of the CD-5 project on the people of Nuiqsut.64 Specifically, ConocoPhillips agreed to, among other things, help fund construction of a road connecting Nuiqsut to CD-5, make annual payments to a mitigation fund, seek to improve its local and Native hire programs, and provide for enhanced consultation with the local community regarding future projects.65 At the same time, in December 2008, ConocoPhillips resubmitted its permit application to the Corps.66

In May 2009, the Corps issued a public notice regarding ConocoPhillips's resubmitted permit application for CD-5.67 This 2009 application included several notable changes from ConocoPhillips's 2005 application. The new application proposed relocating the drill pad 1.3 miles to the west and increasing the road length from 4.2 to 6.3 miles, increasing the size of the drill pad from 9.8 to 11.7 acres in order to accommodate up to 33 wells, and moving the Nigliq Channel bridge three miles south to a location near CD-4.68 The length of the Nigliq Channel bridge would be slightly longer — 1,405 feet.69 Additionally, ConocoPhillips's 2009 application did not include the 80-foot bridge originally proposed; instead, it included a 317-foot bridge over a different lake and a 277-foot bridge across a creek.70 The total amount of fill increased from the 45.1 acres proposed in 2005 to 62.1 acres.71

iii. 2010 Record of Decision and Administrative Appeal.

In February 2010, the Corps issued a Record of Decision ("2010 ROD") denying ConocoPhillips's 2009 CD-5 permit application based on the Corps' determination that ConocoPhillips had failed to demonstrate that its revised proposal was the LEDPA.72 The Corps identified two alternatives that it determined would have less environmental impact than ConocoPhillips's proposal because they "minimize impacts to aquatic resources within the floodplain of the [Colville River Delta]."73 The "key features" of both these alternatives was the use of a horizontal directional drilling ("HDD") pipeline crossing under the Nigliq Channel and the resultant elimination of the road and bridge across the Colville River Delta to join CD-5 to ConocoPhillips's existing Alpine infrastructure.74 One alternative included a gravel air strip at CD-5, and the other included an eight-mile road to CD-5 from Nuiqsut.75

ConocoPhillips administratively appealed the 2010 ROD on numerous grounds.76 In Appeal Reason 3, ConocoPhillips asserted the Corps' LEDPA determination was "arbitrary, capricious, ... [and] not supported by substantial evidence in the administrative record."77 ConocoPhillips maintained that the record "does not support a finding that a three-phase HDD project design is a practicable alternative to [ConocoPhillips's] CD-5 proposal."78

In a decision dated December 2, 2010, a Corps Review Officer determined that "[m]any of the stated reasons in ConocoPhillips's [request for appeal] are without merit, however ... several aspects of the [request for appeal] have merit," including certain of ConocoPhillips's arguments concerning the practicability of the HDD design.79 The Review Officer remanded the permit decision to the Corps District Engineer for "further clarification and evaluation."80

iv. 2011 Record of Decision.

Following the administrative remand, ConocoPhillips and other interested parties provided the Corps with considerable amounts of additional information on both the bridge and HDD alternatives.81 ConocoPhillips also agreed to certain modifications to its 2009 proposal "to further minimize project impacts in the [Colville River Delta]" in order to address concerns raised by EPA and U.S. Fish & Wildlife Service ("USFWS").82 These modifications included narrowing the road and bridge widths and adding a fourth bridge that would allow for the flow of flood waters.83 The modifications reduced the total amount of fill from 62.1 acres to 58.5 acres.84

In December 2011, the Corps issued a Record of Decision ("2011 ROD") granting ConocoPhillips's 2009 permit application as modified. The Corps found, based on the additional information submitted following the administrative remand, that ConocoPhillips's bridge proposal as modified was the LEDPA, instead of the HDD approach.85 With respect to NEPA, the Corps adopted the 2004 Alpine Satellites EIS.86 The Corps concluded that an SEIS was not needed to evaluate ConocoPhillips's revised permit application because "there have not been substantial changes in the proposed action that are relevant to environmental concerns; and ... there are not significant new circumstances or information relevant to environmental concerns and bearing on the proposal or impacts."87 The 2011 ROD that issued the Section 404 permit is the final agency action.88

III. Procedural History.

On February 27, 2013, the Kunaknana Plaintiffs filed their lawsuit challenging the Corps' decision to issue ConocoPhillips the Section 404 permit for CD-5.89 A few months later, on June 5, 2013, CBD filed its lawsuit.90 The Court permitted ConocoPhillips, Kuukpik, ASRC, the North Slope Borough, and the State of Alaska to join both actions as Intervenor-Defendants in support of the Corps.91 Each Intervenor-Defendant has a stake in the CD-5 project:

On August 14, 2013, the Court issued an Order Establishing Joint Case Management and a Case Schedule, which provided for the joint management of the Kunaknana Plaintiffs' and CBD's actions and set a briefing schedule.96 On September 4, 2013, the Court issued an order modifying the briefing schedule.97 Pursuant to this modified schedule, the parties have filed cross-motions for summary judgment.98 Additionally, ConocoPhillips filed a motion to strike certain extra-record exhibits attached to the Plaintiffs' summary judgment motions.99

On February 5, 2014, after the motions had been fully briefed, the Kunaknana Plaintiffs filed a Motion for Temporary Restraining Order and Preliminary Injunction.100 On March 12, 2014, 2014 WL 975592, this Court issued an Order denying the motion with respect to the construction activities already underway at CD-5, based on the Court's determination that the balance of the equities was then tipped sharply in favor of ConocoPhillips and the other Intervenor-Defendants and that a preliminary injunction would not be in the public interest.101 The March 2014 Order did not address the Kunaknana Plaintiffs' likelihood of success on the merits.102

DISCUSSION

I. Jurisdiction.

A. Subject Matter Jurisdiction.

This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331.

B. Article III Standing.

Under Article III of the Constitution, "[t]he jurisdiction of the federal courts is limited to `cases' and `controversies.'"103 Federal courts enforce this jurisdictional limitation through the doctrine of "Article III standing."104 The Supreme Court enumerated the requirements for Article III standing in Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.:

The Court explained that in environmental cases, "[t]he relevant showing for purposes of Article III standing ... is not injury to the environment but injury to the plaintiff."106 Thus, "environmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons `for whom the aesthetic and recreational values of the area will be lessened' by the challenged activity."107

Plaintiffs bear the burden of establishing their standing to bring suit,108 and they "must demonstrate standing for each claim [they] seek[] to press."109 At the summary judgment stage, plaintiffs "must `set forth' by affidavit or other evidence `specific facts,' which for purposes of the summary judgment motion will be taken to be true," that demonstrate plaintiffs satisfy the three requirements for Article III standing.110

i. Center for Biological Diversity.

CBD filed its lawsuit on behalf of its members.111 The Supreme Court explained the requirements for organizational standing in Friends of the Earth:

In CBD's case, only the first prong of this test is at issue. To demonstrate that at least one of its members would have standing to sue in his or her own right, CBD included as exhibits to its summary judgment motion the declarations of three of its members — Marybeth Holleman, Rick Steiner, and Jack Lentfer.113 In its briefing, CBD asserts that these members "have all dedicated extensive time and energy studying, recreating, and traveling in Arctic Alaska, and each plans to return to enjoy the scenery and wildlife of the Colville River Delta in the near future."114 It further asserts that "[t]he CD-5 project poses an imminent threat of injury to each member's interest in enjoying the recreational and aesthetic value of the area."115 But to determine whether CBD has standing, the Court looks to the members' declarations, not to counsel's assertions.

In her declaration, Marybeth Holleman states that she lives in Anchorage, Alaska.116 She states that in the past, she has "traveled to and written about Alaska's Arctic and its wildlife."117 She traveled to Prudhoe Bay in 1988, Unalakleet in 1990, St. Lawrence Island in 1995, and Barrow and Kaktovik in 2009.118 On her trip to Barrow and Kaktovik, Ms. Holleman "flew over the Colville Delta."119 She states: "Since the Kaktovik trip, I have been wanting to return. Primarily, I plan to do some river trips in the Arctic.... The Colville River is one [my spouse and I] are seriously considering in the next couple of years."120 She also states:

In his declaration, Richard Steiner states that he lives in Anchorage, Alaska.122 He states that he has traveled extensively throughout Arctic Alaska. He describes his travels as including flying "over the upper reaches of the Colville River."123 He states: "I have been both west and east of the Colville Delta, and have flown over the entire Delta from Barrow to Prudhoe Bay."124 Additionally, he states: "I have always hoped to float the Colville River, and am hoping to arrange a float in the next couple of years."125 He concludes: "If there were to be an oil spill into the Colville River, it would harm my interests in seeing and enjoying the Colville Delta and the species that inhabit it."126

In his declaration, Jack Lentfer states that he lives in Homer, Alaska and is "retired from working as a wildlife biologist in Alaska for over 46 years."127 In 1964 and 1965, he worked in the Colville River Delta as an employee for the Alaska Department of Fish & Game.128 In October 1964, he stayed with a family that lived "approximately 13 miles down-river from the CD-5 pad and Nigliq crossing." From 1969 to 1977, Mr. Lentfer "made numerous trips as a state and federal employee throughout the North Slope, including the Colville River delta and surrounding area within the NPR-A."129 He also made visits to Nuiqsut during that time, and his daughter did a week-long exchange with a Nuiqsut family in 1976.130 He states: "After retiring, I have continued to visit the Arctic and specifically the vicinity of CD-5 on recreational trips. I flew into the upper Colville River area with my wife in the spring of 1995 and camped for about ten days in an outstanding location for observing wildlife in an undisturbed setting."131 He also describes trips to other places in the Arctic in 1999, 2003, and 2007.132 He states: "I still have a strong interest in the Arctic coast of northeast Alaska, including the lower Colville River.... I plan to maintain these interests and to continue to travel to Arctic coastal areas."133 He adds that "the presence of oil drilling facilities... in the Colville delta would greatly diminish my enjoyment and appreciation of the area and thus would probably cause me not to return there."134

ConocoPhillips asserts that none of these declarations demonstrates past use of the CD-5 project area "accompanied by credible evidence of planned future use," and, therefore, "CBD has failed to demonstrate an injury [in] fact and its case must be dismissed" for lack of standing.135 In support of this argument, ConocoPhillips cites Lujan v. Defenders of Wildlife and Wilderness Society, Inc. v. Rey.136 The other Intervenor-Defendants join in ConocoPhillips's argument concerning CBD's lack of standing.137

In Lujan, plaintiffs Defenders of Wildlife and other environmental organizations ("Defenders") filed suit against the Secretary of the Interior to challenge a regulation interpreting Section 7(a)(2) of the Endangered Species Act ("ESA"). The challenged regulation limited the requirement that federal agencies consult with the Secretary of the Interior to ensure their actions do not jeopardize endangered species to apply only to "actions taken in the United States or on the high seas" and not to actions taken in foreign nations.138 To support its assertion that it had standing to object to this limitation, Defenders submitted the affidavits of two of its members. One member averred that she had visited Egypt in 1986 to observe the habitat of the endangered Nile crocodile; that she "intend[s] to do so again, and hope[s] to observe the crocodile directly"; and that she will suffer harm if ESA Section 7(a)(2) is not applied to the American role in overseeing the rehabilitation of the Aswan Dam.139 The second member averred that she had visited Sri Lanka in 1981 to observe the habitat of certain endangered species; that she "intend[s] to return to Sri Lanka in the future and hope[s] to be more fortunate in spotting at least the endangered elephant and leopard"; and that she will suffer harm if ESA Section 7(a)(2) is not applied to the Mahaweli project funded by the U.S. Agency for International Development.140

The Supreme Court held Defenders lacked standing because the affidavits contained no facts demonstrating that its members were likely to suffer actual or imminent injury.141 The Court explained:

The Court also rejected Defenders' argument that "any person who uses any part of a `contiguous ecosystem' adversely affected by a funded activity has standing even if the activity is located a great distance away."143 The Court explained that "a plaintiff claiming injury from environmental damage must use the area affected by the challenged activity and not an area roughly `in the vicinity' of it."144 The Court also rejected Defenders' argument that a person with a personal or professional interest in an animal species can suffer an injury in fact sufficient to form the basis for standing as a result of a "single project affecting some portion of that species with which [the person] has no more specific connection."145

The Ninth Circuit reached a similar conclusion in Wilderness Society, Inc. v. Rey.146 In that case, The Wilderness Society and other environmental organizations ("TWS") challenged Forest Service regulations "limit[ing] the scope and availability of notice, comment, and appeals procedures."147 TWS asserted that it had associational standing by virtue of one of its members' "recreational and aesthetic injuries."148 The member submitted a declaration stating that he had used Oregon's Umpqua National Forest in the past, that the "Ash Creek Fire Salvage Project" threatened the ecological integrity of that forest, and that the project would have been subject to appeal under prior regulations.149 The member also expressed a general intent to return to the Umpqua National Forest and to other national forests in Washington and Oregon.150

The Ninth Circuit held that the member's declaration was "insufficient to support standing."151 The court explained that the member's "`some day' general intention to return to the national forests of two geographically large states is too vague to confer standing because [he] has not shown that he is likely to encounter an affected area of the Umpqua National Forest in his future visits."152

Here, the Court agrees with ConocoPhillips that under Lujan and Wilderness Society, CBD's members have not demonstrated the requisite injury in fact necessary to confer standing on CBD. As ConocoPhillips points out, neither Ms. Holleman nor Mr. Steiner claims to have ever visited the CD-5 project area.153 The closest either has come is flying over the Colville River and/or the Colville River Delta.154 Moreover, neither has testified about a concrete plan to visit the project area in the future. Rather, Ms. Holleman states only that she is "seriously considering" floating the Colville River in the next couple of years,155 and Mr. Steiner states that he is "hoping" to arrange a float of the Colville River in the next couple of years.156 As in Lujan, these "some day" intentions are insufficient to confer standing, particularly when it is unclear whether these hypothetical float trips would bring Ms. Holleman or Mr. Steiner to the CD-5 project area.

Mr. Lentfer's declaration establishes that he has traveled extensively in the Colville River Delta in the past. However, it appears the closest he ever came to the CD-5 project area was in 1964, when he stayed with a family that lived 13 miles downstream from the CD-5 pad and Nigliq crossing.157 Additionally, Mr. Lentfer has not demonstrated an intent to return to any part of the Colville River Delta, much less the CD-5 project area. The most he says is that he has unspecified plans "to continue to travel to Arctic coastal areas."158 This is insufficient to establish standing to challenge the CD-5 project.

In its reply brief, CBD responds to the lack-of-standing argument by asserting:

Thus, CBD attempts to characterize the CD-5 project as affecting a very large geographic area, such that its members' connections to Arctic Alaska are sufficient to confer standing. However, CBD has cited no authority for the proposition that an environmental plaintiff's standing can be based on connections to the area that could potentially be affected by an agency decision, i.e., in the event of some catastrophe such as an oil spill, as opposed to the area that will with certainty be affected.160 Rather, both Lujan and Wilderness Society make clear that an environmental plaintiff cannot base standing on a connection to the broader ecosystem within which a project takes place.161

CBD also asserts that "the Center's declarants' interests in affected species ... bear directly on the question of injury in fact, regardless of whether the declarants have viewed those species in the construction area or whether they have viewed those same animals in other areas affected by the project."162 However, the Supreme Court unequivocally held in Lujan that a plaintiff's interest in an animal species is insufficient to confer standing to challenge a "single project affecting some portion of that species with which [the plaintiff] has no more specific connection."163

This litigation involves a challenge to an agency decision permitting a single project with a 58.5-acre footprint.164 58.5 acres is a small fraction of the size of the Colville River Delta and an even smaller fraction of Arctic Alaska.165 Based upon the nature of this project and the controlling precedent of the Supreme Court and the Ninth Circuit with respect to standing, the CBD declarants' connections to Arctic Alaska and to Arctic species are insufficient "to make credible the contention that [their] future life will be less enjoyable — that [they] really ha[ve] or will suffer in [their] degree of aesthetic or recreational satisfaction" if CD-5 is developed.166 CBD therefore lacks Article III standing, and its action will be dismissed.

ii. Kunaknana Plaintiffs.

The Kunaknana Plaintiffs are individuals who live in Nuiqsut,167 which is approximately eight miles south of the Alpine Central Processing Facility at CD-1.168 In declarations submitted with their motion for summary judgment, the Kunaknana Plaintiffs state that they conduct subsistence activities in the vicinity of the CD-5 project.169 They assert that "[t]he CD-5 project will directly harm [their] aesthetic, spiritual, cultural, religious, and recreational enjoyment of the CD-5 area," and that full compliance with the CWA and NEPA may result in a project "that will have less of an impact on the rich and productive subsistence areas [they] rely on near the CD-5 project."170 The Kunaknana Plaintiffs' declarations demonstrate an injury in fact traceable to the Corps' actions and redressable by a favorable court decision, such that the Kunaknana Plaintiffs have Article III standing.171

II. Standard of Review of Agency Action.

The Kunaknana Plaintiffs assert that the Corps' issuance of the wetlands permit for the CD-5 project violated NEPA and Section 404 of the CWA. They seek judicial review of the Corps' decision under the Administrative Procedure Act ("APA"),172 which provides that "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof."173 The APA directs courts to "hold unlawful and set aside" an agency decision that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."174

The Supreme Court has held that "[t]he scope of review under the `arbitrary and capricious' standard is narrow and a court is not to substitute its judgment for that of the agency."175 And the Ninth Circuit has "emphasized that deference to the agency's decisions is especially warranted when reviewing the agency's technical analysis and judgments, based on an evaluation of complex scientific data within the agency's technical expertise."176 "Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made."177

"In conducting [its] review, [a court] may look only to the administrative record to determine whether the agency has articulated a rational basis for its decision."178 The court must consider, based on the record, whether the agency's decision "was based on a consideration of the relevant factors and whether there has been a clear error of judgment."179 The court may "uphold a decision of less than ideal clarity if the agency's path may be reasonably discerned."180 But "when an agency fails to provide an explanation for its actions [the court is] left with no means of reviewing the reasonableness of that action."181 Therefore, an "agency's lack of explanation for its choice renders its decision arbitrary and capricious."182

III. Kunaknana Plaintiffs' Failure to Participate in the CD-5 Permitting Process.

ConocoPhillips asserts that the Kunaknana Plaintiffs' claims should be dismissed because they did not participate in the CD-5 permitting process before the agency.183 The other Intervenor-Defendants join in ConocoPhillips's argument.184 The Kunaknana Plaintiffs do not dispute that they did not participate in the permitting process,185 but they maintain that the Court can hear their claims because they were not required to submit comments to the agency and because the Corps "was aware of and had the opportunity to address all of the issues identified in this lawsuit."186

The Ninth Circuit "has declined to adopt `a broad rule which would require participation in agency proceedings as a condition precedent to seeking judicial review of an agency decision.'"187 However, the Ninth Circuit has also stated that absent exceptional circumstances, it will decline to consider specific issues that were not raised at all before the agency during the administrative process,188 a requirement the Kunaknana Plaintiffs refer to as "issue exhaustion."189 The purpose of the issue exhaustion requirement is "to permit [the] administrative agenc[y] to utilize [its] expertise, correct any mistakes, and avoid unnecessary judicial intervention in the process."190 Thus, an issue can form the basis of a legal challenge to an agency action in federal court only if that issue was first brought to the attention of the agency with clarity sufficient to allow the agency the opportunity to consider the issue and to rectify the violations alleged.191 However, there is no requirement that the plaintiff be the one who raised the issue before the agency.192

The Supreme Court discussed issue exhaustion in the context of a NEPA claim in Department of Transportation v. Public Citizen.193 In that case, the Federal Motor Carrier Safety Administration issued an environmental assessment ("EA") for its proposed rules to regulate the safety of Mexican motor carriers. The EA concluded that the rules would have no significant impact on the environment.194 The plaintiffs filed suit, arguing the EA's analysis was flawed in part because it should have considered alternatives to the issuance of the rules.195 However, because the plaintiffs did not raise this particular challenge to the EA during the administrative process, the Court held the plaintiffs had forfeited this objection.196 The Court stated: "Persons challenging an agency's compliance with NEPA must `structure their participation so that it ... alerts the agency to the [parties'] positions and contentions,' in order to allow the agency to give the issue meaningful consideration."197

And yet, after articulating this holding, the Court added that "[a]dmittedly, the agency bears the primary responsibility to ensure that it complies with NEPA."198 Although not the situation in Department of Transportation, the Court suggested that "an EA's or an EIS's flaws 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."199 "[The Ninth Circuit] has interpreted the `so obvious' standard as requiring that the agency have independent knowledge of the issues that concern petitioners."200

For the foregoing reasons, the fact that the Kunaknana Plaintiffs did not participate in the administrative process for CD-5 does not preclude them from maintaining this lawsuit. However, for each issue they seek to raise here, it must be clear from the record that the Corps was aware of the issue. Whether that is the case will be discussed in the next section with respect to each of the issues underlying the Kunaknana Plaintiffs' NEPA claim.

IV. Claim 1: Violation of NEPA.

The Kunaknana Plaintiffs' first claim is that the Corps' issuance of the Section 404 permit to ConocoPhillips violated NEPA. As discussed above, in the 2011 ROD granting ConocoPhillips a Section 404 permit for CD-5, the Corps adopted the 2004 Alpine Satellites EIS.201 The Kunaknana Plaintiffs' primary argument is that the Corps was required to conduct a supplemental NEPA analysis for two reasons: (1) the CD-5 project has been reconfigured since the 2004 Alpine Satellites EIS, and (2) "there is new information bearing on the environmental analysis conducted by the BLM in 2004."202 The Kunaknana Plaintiffs also assert that even if the Court declines to find an SEIS is required, the Corps failed to provide a reasoned explanation for its decision not to prepare an SEIS.203

An agency is not required to prepare an SEIS every time there are changes to a project or new information comes to light.204 Rather, an agency must prepare an SEIS only if there are substantial changes to the proposed project or if there is significant new information relevant to environmental concerns.205

Whether an SEIS is required "is a classic example of a factual dispute the resolution of which implicates substantial agency expertise."206 Such disputes "must be resolved in favor of the expert agency so long as the agency's decision is based on a reasoned evaluation of the relevant factors."207 Thus, if an agency has decided preparation of an SEIS is not required, a reviewing court must carefully review the record and satisfy itself that the agency's decision was based on a reasoned evaluation of the significance of project changes and/or new information.208 But if the record does not contain a reasoned explanation for the agency's decision not to prepare an SEIS, the court should set aside the agency's decision as "arbitrary or capricious."209

These concepts were applied by the Ninth Circuit in Friends of the Clearwater v. Dombeck.210 There, Friends of the Clearwater and other environmental groups ("FOC") challenged the Forest Service's denial of their demand that it prepare an SEIS to address, among other things, seven new sensitive species designations that had occurred in the nine years since the Forest Service completed the original EIS.211 The district court held that data in the original EIS supported Forest Service's decision not to prepare an SEIS and granted summary judgment to the Forest Service.212 On appeal, FOC argued that the Forest Service failed "sufficiently to consider and evaluate the need for[] an SEIS in light of the seven new sensitive species designations."213

The Ninth Circuit agreed with FOC, explaining:

The Ninth Circuit held "that the Forest Service's failure to evaluate in a timely manner the need to supplement the original EIS in light of that new information violated NEPA."215

A. Changes to the CD-5 Project.

The Kunaknana Plaintiffs first assert that the Corps was required to conduct a supplemental NEPA analysis, or at least to make a reasoned determination whether supplementation was required, because changes have been made to the CD-5 project from what was analyzed in the 2004 Alpine Satellites EIS.216 The Kunaknana Plaintiffs correctly assert that in 2009 both EPA and USFWS recommended to the Corps that it prepare an SEIS to address changes made to the CD-5 project from what was analyzed in the 2004 Alpine Satellites EIS,217 and it is clear from the 2011 ROD that the Corps was aware of this issue during the administrative process.218 Accordingly, the Court finds that issue exhaustion does not preclude the Kunaknana Plaintiffs from raising this issue as part of their NEPA claim.

As examples of project changes that have occurred since 2004, the Kunaknana Plaintiffs point to the relocation of the CD-5 pad 1.3 miles west, the increase in the number of wells, the changed location of the Nigliq Channel bridge, the changed road alignment and increased road length, the increase in the number of bridges, the increased amount of fill, the increased pad size, and certain mitigation measures.219 They contend that the Corps failed to adequately evaluate the significance of these modifications, instead providing "only unsupported conclusions in [the 2011 ROD] that the CD-5 project[] has not been `substantial[ly] changed' since the Alpine Satellites EIS."220

In the 2011 ROD, the Corps stated that it had determined that the project changes were not substantial enough to warrant preparation of an SEIS,221 but it offered only minimal explanation for this determination. In response to the comments from EPA and USFWS recommending that the Corps prepare an SEIS, the Corps stated:

Then, in response to comments from environmental groups, the Corps offered a somewhat different explanation for its decision not to prepare an SEIS to address project changes:

The referenced alternative with a southerly road route appears to be Alternative C-1 in the Alpine Satellites EIS.224

The problem with the assertion that the approved CD-5 project is similar to Alternative F in the Alpine Satellites EIS is that it contains several changes, including the relocation of the CD-5 drill pad 1.3 miles to the west of the location analyzed in the EIS and an increase in the number of wells from 22 to 33.225 Thus, as the Corps recognized elsewhere in the 2011 ROD, the approved CD-5 project is only "similar in concept to Alternatives A and F in the FEIS," since the "locations of the road, bridge, pipeline route and pad... have changed."226 And while a more southerly road route may have been analyzed as part of Alternative C-1, the location of the CD-5 pad as finally approved was not analyzed as part of any of the EIS alternatives.227 The Corps stated in the 2011 ROD that the changed location and size of the drill pad will result in "similar" impacts, but it provides no explanation for this assertion anywhere in the record.228 Rather, the Corps undercuts this assertion elsewhere in the record by stating that the proposed location for CD-5 in the 2004 Alpine Satellites EIS "was selected to avoid the most valuable wetlands and minimize other adverse impacts," but "it was later moved by ConocoPhillips to optimize well production from the reservoir when better geophysical information became available."229

In its brief, ConocoPhillips offers a seven-page explanation for how the project changes "were all minor and of no meaningful environmental consequence, fall within the range of impacts previously considered or were included as mitigation measures undertaken to reduce impacts below levels identified in the EIS."230 However, as the Kunaknana Plaintiffs correctly point out in their reply, this Court "may not accept ... post hoc rationalizations for agency action."231 Rather, "an agency's action must be upheld, if at all, on the basis articulated by the agency itself."232 And after carefully reviewing the record in this case, the Court finds that the Corps failed to articulate a satisfactory explanation, founded on a reasoned evaluation of the relevant factors, for its decision to forego preparation of an SEIS to address changes to the CD-5 project. The Court concludes, therefore, that the Corps' decision was arbitrary.233

B. New Information.

The Kunaknana Plaintiffs next assert that the Corps was required to conduct a supplemental NEPA analysis, or at least to make a reasoned decision whether supplementation was required, because new information has been generated since the 2004 Alpine Satellites EIS.234 The Kunaknana Plaintiffs point to two categories of "new information." First, they point to documents cited in the 2011 ROD that post-date the 2004 Alpine Satellites EIS.235 Second, they point to "new information about the impacts of climate change on the project."236 The Court will analyze these two categories of new information in turn.

i. Documents Cited in the 2011 ROD that Post-Date the 2004 Alpine Satellites EIS.

The Kunaknana Plaintiffs assert that the 2011 ROD "relies upon several post-Alpine Satellites EIS documents, reports, and studies that are all new information," and that "there is no indication in the record that the Corps ever analyzed the significance of th[is] new information... despite the Corps' reliance on the documents in the decision-making process."237 The Corps certainly had knowledge of the post-2004 documents it cited in the 2011 ROD, and under NEPA it had a "continuing duty to ... evaluate new information relevant to the environmental impact of its actions."238 Accordingly, the Court finds that issue exhaustion does not preclude the Kunaknana Plaintiffs from arguing in this appeal that those documents that are cited in the 2011 ROD constitute new information that the Corps failed to adequately evaluate under NEPA.

In their briefing, the Kunaknana Plaintiffs list eleven post-2004 documents cited in the 2011 ROD, including certain information provided by ConocoPhillips and other entities after the administrative remand of the 2010 permit decision.239 And yet the 2011 ROD contains only the conclusory statement that "there are not significant new circumstances or information relevant to environmental concerns and bearing on the proposal or impacts."240

In their briefing, the Corps and ConocoPhillips assert that the Kunaknana Plaintiffs have failed to demonstrate that any of the post-2004 documents cited in the 2011 ROD contain significant new information necessitating an SEIS.241 However, it is not the Plaintiffs' duty to assess the significance of the post-2004 information. Rather, when provided with this new information, it was the Corps' duty to "consider it, evaluate it, and make a reasoned determination whether it [wa]s of such significance as to require [an SEIS]."242

The Kunaknana Plaintiffs maintain that the Corps' conclusory statement that there is no significant new information is at odds with the Corps' express reliance on post-2004 information in making its LEDPA determination.243 In the 2011 ROD, the Corps explained that the new information provided by ConocoPhillips and others post-remand caused the Corps to modify its LEDPA determination from the HDD alternative to the bridges,244 a fact the Corps and ConocoPhillips recognize in their briefing on that topic.245 Accordingly, the Court agrees with the Kunaknana Plaintiffs that absent a reasoned explanation in the record, the Corps' decision to rely on certain post-2004 studies and information in evaluating the LEDPA for ConocoPhillips's CD-5 proposal under the CWA, while at the same time summarily disclaiming the significance of that information for NEPA purposes, was arbitrary.246

ii. New Information About the Impacts of Climate Change on CD-5.

The 2004 Alpine Satellites EIS contains a short, general discussion of climate change.247 With respect to potential impacts from climate change on the development of CD-3 through CD-7, it notes that an increase in mean surface temperature could shorten the ice road season.248 Additionally, it states:

The Kunaknana Plaintiffs assert that "[b]etween 2004 and 2011, a considerable body of science developed regarding the impacts of climate change on the Arctic," but the Corps failed to make a reasoned determination of the significance of this information to CD-5, instead providing only "a handful of cursory statements about the risks from climate change."250

a. ConocoPhillips's Motion to Strike Kunaknana Plaintiffs' Extra-Record Summary Judgment Exhibits.

The bulk of the new information about the impacts of climate change that the Kunaknana Plaintiffs assert the Corps failed to consider is not in the agency record; instead, it is presented to the Court in the form of five publicly available reports concerning climate change attached as exhibits to the Kunaknana Plaintiffs' summary judgment brief.251 ConocoPhillips has moved to strike these extra-record reports.252

"Generally, judicial review of an agency decision [under the APA] is limited to the administrative record on which the agency based the challenged decision."253 In their opposition to ConocoPhillips's motion to strike, the Kunaknana Plaintiffs assert that the climate change reports fit under an exception to this rule "that allows the court to consider extra-record documents where it needs to determine whether the agency has considered all relevant factors and has explained its decision."254 However, the extra-record climate change reports are not necessary to determine whether the Corps provided an adequate explanation in the record for its decision not to prepare an SEIS,255 which is the only issue the Court is deciding at this time. Therefore, ConocoPhillips's motion to strike Exhibits 1-5 to the Kunaknana Plaintiffs' summary judgment brief will be granted.256

b. Issue Exhaustion.

With respect to new information concerning climate change, the Corps makes an issue exhaustion argument. The Corps asserts that the Kunaknana Plaintiffs "fail to show that anyone ever contended that new climate change information required supplementation of the Alpine EIS."257 It maintains that absent such a showing, "the Court should not consider the contention that this new information required supplementation of the Alpine EIS."258

The Kunaknana Plaintiffs assert that "EPA alerted the Corps to post-2004 information pertaining to climate change and impacts to the Arctic and recommended that the Corps analyze the project in light of that new information."259 They cite to a portion of a five-page letter dated June 9, 2009 from EPA to the Corps260:

The Kunaknana Plaintiffs also cite to a letter dated September 9, 2009 from EPA to the Corps.262 Like the EPA's June 2009 letter, that letter states that a certain surface water model "does not predict changes in hydrology patterns that are likely to result from future climate change scenarios."263

Additionally, the Kunaknana Plaintiffs assert the Corps "acknowledged in [the 2011 ROD] that there was new information on climate change that arose after issuance of the 2004 EIS, indicating it was cognizant of the issue and thereby waiving any [issue] exhaustion argument."264 They cite to a portion of the 2011 ROD that states: "Changes that have occurred [since the 2004 Alpine Satellites EIS] include the listing of critical habitat for polar bear, climate change, and future development."265 However, it is not clear whether this sentence means that new climate change information has been generated since 2004 regarding the CD-5 project or that the climate has changed since 2004.

In the 2011 ROD, the Corps discussed the ways that climate change may impact the CD-5 project:

The Corps also provided a brief analysis of how climate change might affect each of the analyzed alternatives in the 2011 ROD.267 However, whether the Corps was aware of and considered post-2004 information in this analysis is unclear.

"[T]here is no bright-line standard" for determining when an issue has been raised before an agency with clarity sufficient to allow a plaintiff to overcome the issue exhaustion bar.268 The portions of EPA's letters cited by the Kunaknana Plaintiffs appear to be more of a critique of the hydrology analysis in the record than an effort to apprise the Corps of new information concerning climate change that might necessitate a supplemental NEPA analysis.269 And the Kunaknana Plaintiffs have not pointed to any place in the 2011 ROD clearly demonstrating that the Corps had independent knowledge of certain new climate change information that might necessitate a supplemental NEPA analysis for CD-5. At the same time, however, it is clear from the 2011 ROD that the Corps was aware that climate change might alter the environmental impact of CD-5.

Rather than resolve the issue exhaustion question at this time, the Court has decided that whether, and to what extent, the Corps should evaluate post-2004 climate change information is better determined after further briefing from the parties on the appropriate remedy for the Corps' failure to adequately explain its decision not to prepare an SEIS for CD-5 to address changes to the project as well as new information relied upon in the 2011 ROD.

V. Claim 2: Violation of CWA.

To decide the Kunaknana Plaintiffs' CWA claim at this time would be premature. NEPA procedures are designed to ensure the agency and the public have an opportunity to consider all of the relevant environmental information "before decisions are made and before actions are taken."270 Thus, the Court will not determine whether the Corps' decision to issue the Section 404 permit to ConocoPhillips violated the CWA until after the Kunaknana Plaintiffs' NEPA claim has been resolved.

VI. Remedy.

In its brief, ConocoPhillips requests that if the Court rules in favor of Plaintiffs on any of their claims, the Court allow the parties to provide additional briefing on what would be an appropriate remedy.271 The Court agrees with ConocoPhillips that further briefing from the parties at this juncture could be of assistance to the Court.

CONCLUSION

For the foregoing reasons, the Court hereby ORDERS as follows: