Full opinion text
ORDER GILMORE, District Judge. Pending before the Court are Plaintiffs’ Motion for Summary Judgment (Instrument No. 92), Defendants’ Motion for Summary Judgment (Instrument No. 96) and the Intervenor Port of Houston Authority’s Cross Motion for Summary Judgment. (Instrument Nos. 94). Based on the arguments of the parties and the responses hereto, Plaintiffs’ Consolidated Response on Summary Judgement (Instrument No. 100), Defendants’ Memorandum in Opposition to Plaintiffs’ Motion for Summary Judgment (Instrument No. 99) and the Intervenor Port of Houston Authority’s Reply to Plaintiffs’ Cross-Motion for Summary Judgment (Instrument No. 102) and the oral arguments presented in the hearing before the Court on April 20, 2004, the Court finds that Defendants’ summary judgment motions (Instrument Nos. 94 and 96) should be GRANTED and the Plaintiffs’ motion (Instrument No. 92) should be DENIED. I. Factual Background This action arises from the proposed construction of the Bayport Project a marine terminal consisting of seven container berths and three cruise berths scheduled to be built in phases over the course of the next 20 years on the existing Bayport Ship Channel on Galveston Bay. (AR 3297 at 9-10). Plaintiffs contend that Defendant United States Army Corps of Engineers (the “Corps”) violated the National Environmental Policy Act (“NEPA”) and the Clean Water Act (“CWA” or “Section 404”) in issuing DefendanL-Intervenor the Port of Houston Authority (the “Port”) a permit to build the Bayport Project. The Bayport site is located south of Shoreacres and north of Seabrook, Texas, and is situated along the Bayport Ship Channel, a man-made industrial channel servicing several chemical manufacturing facilities. (AR 2385.10 at 1-3 — 1-4). On October 8, 1998, the Port applied to the Corps to build the Bayport Project. (AR 3297 at 1). In November 1999, Harris County voters approved $387 million in bonds for the construction of the Bayport Project. (AR 3297 at 2, 34). NEPA requires Federal agencies to consider the environment during their decision-making processes. It also requires agencies to provide interested parties with an opportunity to participate in the environmental evaluation process. (AR 3297 at 1). In addition, Section 404 of the CWA authorizes the Corps to issue permits, after notice and opportunity for public hearing regarding the discharge of dredged or fill material into waters of the United States, which include jurisdictional wetlands. (Id.). As required under' NEPA, the Corps held an agency scoping meeting and public information workshop in August 1999, at the Pasadena Convention Center to determine the scope of the analysis and the potentially significant effects of the Bay-port Project that would be analyzed in the Environmental Impact Statement (“EIS”). (AR 3297 at 2, 66-69; AR 308). Based on the issues identified in that initial meeting, the Port made modifications to the proposed project. The Corps considered the Port’s modified proposed project and published a Draft EIS (“DEIS”) in November 2001. (AR 3297 at 2, 70). Subsequently, three public workshops organized by the Corps were held during November and December 2001 to provide information to ' the public regarding the Bayport Project and the DEIS. Two workshops were held in Pasadena and one was held in Houston. (Id.). Public comments on the DEIS were accepted by the Corps through March 13, 2002. Public Notices seeking comments were published by the Corps on April 4, 2002 and on July 22, 2002. The Corps provided a 30-day comment period with each notice. (AR 1929; 3297 at 2). After performing an additional analysis of the environmental concerns identified by the public comments, the Corps published the Final EIS (“FEIS”) on May 16, 2003. (AR 3297 at 2, 70). The Corps accepted public comments on the FEIS through August 16, 2003. (AR 3297 at 2; 2421). The Corps issued another Public Notice on August 12, 2003, which allowed public comments until September 12, 2003 on additional mitigation areas that the Port added to the proposed project to compensate for the planned destruction of wetlands. (AR 3297 at 2). On June 26, 2003, Plaintiffs, City of Sho-reacres, City of Taylor Lake Village Texas, Galveston Bay Conservation and Preservation Association, Galveston-Houston Association for Smog Prevention, Texas Committee on Natural Resources, Galveston Bay Foundation, Houston Audubon Society, Houston Yacht Club, Professionals Involved in Seafood Concerned Enterprises, Gulf Restoration Network (“Plaintiffs” or “Shoréacres”), filed this action against Defendants, Colonel Leonard D. Waterworth, Lieutenant General Robert B. Flowers, Acting Secretary Les Brownlee and the U.S. Army Corps of the Engineers (“Defendants” or “Corps”), claiming that the Corps’ prospective issuance of the permit for the Bayport Project did not comply with requirements of (1) the Administrative Procedure Act, 5 U.S.C. § 701, et seq. (“APA”); (2) the National Environmental Policy Act, 42 U.S.C. §§ 4321, et seq. (“NEPA”), and (3) the Clean Water Act, 33 U.S.C. §§ 1251, et seq. (“CWA”). Specifically, Plaintiffs contend that Defendants violated these statutes by failing to conduct the requisite environmental impact and alternative analyses that NEPA and CWA require before issuing the Bayport Project permit. Additionally, Plaintiffs argue that the Corps should deny the Port’s permit application because Bayport is not the least environmentally damaging practicable alternative under the CWA. On December 19, 2003, the Corps issued the Record of Decision, which concluded that the Bayport Project “is not contrary to the public interest and that a Department of the Army permit, with conditions, should be issued.” (AR 3297 at 126). The Corps issued a permit to the Port of Houston for construction of the Bayport Project on January 5, 2004. On January 20, 2003, Plaintiffs filed a Motion for Preliminary Injunction. (Instrument No. 59). Plaintiffs requested that the Court grant a preliminary injunction, preventing any construction of the Bayport Project by the Port and suspending the operation of the Corps permit until the Court could render a decision on the merits of this case. (Id., at 36). Plaintiffs sought the injunction because they believed the Port intended to “bulldoze, and destroy, the many acres of unique wetlands” before a decision could be made on the merits. (Id., at 4). Plaintiffs asserted that the development at Bayport would impose escalating environmental harms including air pollution and noise in the nearby city communities. According to Plaintiffs, the full extent of environmental harms could not be determined due to the violation of NEPA and Section 404 of the Clean Water Act. Plaintiffs claimed that precedent established that the environmental harms and lack of adequate information constituted irreparable harm. (Id.). On February 10, 2004, Defendants filed their Response to Plaintiffs’ Motion for Preliminary Injunction. (Instrument No. 65). Defendants argued that they had invested significant resources into the permit process and that there had been substantial opportunity for public participation throughout the permit process. In addition, the Corps had provided a detailed and comprehensive explanation of its decision and of the information upon which it was based. Defendants also contended that Plaintiffs had failed to show the necessary likelihood that they would prevail on the merits. In such circumstances, Defendants argued that the public interest would not be served by suspending a validly-issued Corps permit and disrupting the legitimate expectations of the applicant to whom the permit was issued, as well as the expectation of the -public, who expected to benefit from the completion of this project. (Id., at 38). A Preliminary Injunction hearing was held on February 27, 2004, where all parties were present and were heard on the issues. After the presentation of evidence, the Port agreed to “stand still” and take no further action in regard to the Bayport Project and the Court offered to expedite the case schedule and ruling. Therefore, pursuant to the Court’s Order entered February 27, 2004, the parties filed cross-motions for summary judgment on April 9, 2004 and responses on April 16, 2004. Plaintiff Shoreacres filed its Motion for Summary Judgment (Instrument No. 92) arguing that the Corps violated specific provisions in NEPA and the CWA. Specifically, Plaintiffs contend that the Corps made six individual violations in the permitting process. Plaintiffs argue that the Corps was arbitrary and capricious by refusing to analyze the potential dredging of a fifty foot ship channel, failing to address “community cohesion”, undercounting the acres of the jurisdictional wetlands, as well as failing to approve the least damaging practicable alternatives, i.e. Shoal Point and Pelican Island. Plaintiffs also contend that the Corps violated its duty under NEPA by failing to analyze the Bayport and Shoal Point projects together as a cumulative action — in the same EIS. Additionally, Shoreacres believes that it was arbitrary and capricious for the Corps to permit Bayport for seven berths in addition to Shoal point for six berths, after previously-and for good reasons-rejecting three container berths at Shoal Point and four container berths at Bayport as environmentally unacceptable. (Instrument No. 92, at 1-2). 1. Refusal to Analyze the 50-foot Ship Channel Plaintiffs assert that in the Bayport EIS, the Corps admits that further dredging beyond 45 feet would “likely be necessary.” (AR 2385, at 4-19). Accordingly, the Plaintiffs assert that the Corps, properly determined that it needed to evaluate the cumulative impact of deepening of the Houston Ship Channel to fifty feet. (Instrument No. 92, at 15). However, Plaintiffs argue that during NEPA process, the Corps changed its mind and refused to do this critical analysis. Therefore, Plaintiffs complain that the Bayport DEIS and FEIS both state that the issue of the impact of the fifty foot channel, which was raised in the scoping process, would be addressed in the Bayport DEIS and FEIS, and yet neither contains any such analysis. (Id., at 16). Shoreacres also argues that under the CWA, the Corps must consider foreseeable cumulative impacts when it is making required factual assessments to determine whether significant degradation to the nation’s waters will occur. Plaintiffs contend that they provided proof that the further deepening of the Houston Channel will cause or contribute to a significant degradation of Galveston Bay by increase ing salinity. (Id., at 17-18). According to Plaintiffs, if significant degradation is found, 40 C.F.R. § 230.10(c) requires that the permit be denied. 2. Failure to Address Community Cohesion Plaintiffs also claim that the Corps failed to consider the impact of Bayport on the local land use patterns and “community cohesion.” Plaintiffs assert that residential .neighborhoods surround Bayport and that according to the FEIS, approximately 23,702 people live within the Bayport study area. (AR 2385.10, at 3.4-4). Plaintiffs argue that the Corps never presents an analysis of what its own findings mean with regard to the land use patterns and “community cohesion” within Plaintiff cities. Plaintiffs claim that “NEPA requires analysis of Bayport’s impacts on community cohesion”, however, they provide the Court with no statutory or caselaw support for that assertion. (Instrument No. 92, at 19).- Shoreacres also contends that the Corps “itself specified community cohesion among the ‘[ijtems for investigation and inclusion in the social profile ... ’ ” (Id., citing AR 425, at- 2) (Carol Hollaway’s Example of the Scope of Work for Social Impact Analysis). Plaintiffs also note that in the Corps’ Notice of Intent to Prepare a DEIS, the Corps included “community cohesion” in a long list of significant issues the DEIS was “likely to include” (AR 288, at 2), however according to Plaintiffs this analysis was not performed. (Instrument No; 92, at 20). Plaintiffs assert that the impacts that the Corps identifies in the FEIS, including noise, vibration, traffic congestion, fine particles in the air, and Bayport’s incompatibility with Seabrook’s zoning ordinance, will destroy the communities’ cohesion. However, Plaintiffs assert that the Corps failed to do the analysis that would demonstrate this result. Plaintiffs state that: Nothing in the Administrative Record explains why the issue of community cohesion and land use impacts was not thoroughly analyzed and disclosed. Nothing explains why Bayport’s impact on residential property values was not analyzed and disclosed. Nothing explains why Bayport’s impact on institutional uses such as schools and cities that rely on residential taxes for the[ir] viability was not disclosed.... the mistreatment of community cohesion and land use in this FEIS violates NEPA and was arbitrary and capricious. (Instrument No. 19, at 21). 3. Undercounting of the Jurisdictional Wetlands Plaintiffs contend that the Corps unlawfully and significantly undercounted the number of acres of jurisdictional wetlands, by refusing to consider information essential to determine adjacency. Plaintiffs argue that the Corps violated Section 404 of the CWA by steadfastly refusing to consider ditch connections, overland sheet flow and accurate floodplain mapping data in determining the extent of jurisdictional wetlands at Bayport. Plaintiffs argue that an extensive system of ditches on the Bay-port site connects many acres of wetlands to traditional navigable waters. According to Plaintiffs, the Corps failure to include man-made ditches runs counter to existing case law, where ditches were construed as tributaries, thereby providing the connection to the wetlands in question and rendering them jurisdictional. (Instrument No. 92, at 23-24). In addition, Plaintiffs state that they “know of no case that precludes the use of overland sheet flow to establish jurisdiction, and that in this case the overland sheet flow drains directly into Galveston Bay, a navigable water.” (Instrument No. 92, at 26). “By refusing to consider overland sheet flow and drainage ditches to establish jurisdiction”, the Corps “disregarded specific agency practices elsewhere, as well as precedent and sensible science.” (Instrument No. 92, at 27). Plaintiffs also assert that the Corps refused to use accurate government generated mapping data that according to Plaintiffs establishes many acres of wetlands within the 100-year floodplain, which would make them jurisdictional. (Id., at 28). Plaintiffs claim that the Corps’ refusal to use current and accurate data is arbitrary and capricious because excessive destruction of wetlands, by itself, can preclude permit issuance and the proposed mitigation in the Bayport proposal was different for mitigating jurisdictional wetlands than for mitigating other wetlands. (Instrument No. 100, at 7). 4. Failure to Approve the Least Damaging Practicable Alternative Under the CWA, one important question is whether an applicant’s proposal provides the “least damaging practicable alternative” to accomplish the project’s purposes. Plaintiffs maintain that in the Bayport ROD, the Corps found the Shoal Point alternative less damaging (No. 92,at 31). Plaintiffs contend that by excluding Shoal Point as unavailable, the Corps violated the CWA and acted arbitrarily and capriciously. (Id. at 29). Plaintiffs also contend that they believe Pelican Island provides an additional site that is less environmentally damaging than the Bayport location. (Instrument no. 92, at 31). Plaintiffs argue that Pelican Island is available because it is partially located on property the Port purchased in 2000. (AR 3297 at 16). Plaintiffs assert that Pelican Island offers several substantial advantages over Bayport. Pelican Island lies at the mouth of Galveston Bay, therefore Plaintiffs claim that there is no concern with deep dredging the Houston Ship Channel. Plaintiffs also argue that there is no concern for community cohesion, because only a few hundred students live (part-time) nearby. In addition, Plaintiffs assert that Pelican Island for the most part, is a dredge spoil location, therefore there are no substantial wetlands concerns. (Id.). 5. Failure to Analyze Bayport and Shoal Projects Together As a Cumulative Action-Same EIS Plaintiffs contend that by not evaluating the two projects in the same impact statement the Corps violated NEPA. The parties agree that the Corps would be required to address the two actions in the same impact statement if the Bayport Permit and Shoal Point permit are cumulative actions. (Instrument No. 92, at 33). Plaintiffs contend that under Supreme Court caselaw, “cumulative action [means] ‘when several proposals for ... actions that will have cumulative or synergistic environment impact upon a region are pending concurrently before an agency, their environmental consequences must be considered together,’ in a single EIS.” Plaintiffs assert that the fact that the projects are being built and operated simultaneously, with the same purposes — to serve the Galveston Bay area — “they inescapably have numerous cumulative and synergistic impacts upon the same small region around the Galveston Bay.” (Instrument No. 92, at 34). Therefore, Shoreacres asserts that two separate EIS analyses were performed for two separate permit application “for only one 2.4 million TEU container facility. This approach — divide and disregard — defeats the purpose as well as the letter of NEPA.” (Id. at 35). Plaintiffs also assert that the Corps evaluated Bayport under the false assumption that Shoal Point remains undeveloped and used for spoils disposal rather than being developed using its permit. Shorea-cres argues that the Corps imported the fatally flawed alternatives and impacts analysis from its NEPA decision into its analysis of alternatives and impacts under the CWA. Therefore, Plaintiffs surmise that the Corps could not make a properly reasoned decision that Bayport would have the least damaging environmental impact. (Instrument No. 92, at 36). 6. Failing to be Consistent in its Consideration of Environmental Acceptability Plaintiffs argue that by refusing to evaluate Shoal Point together with Bayport, the Corp violated NEPA. The Corps permitted the Shoal Point project which includes six berths and 2.4 million TEUs in April 2003. Subsequently, in December 2003, the Corps approved the Bayport permit, allowing the construction of seven berths and 2.4 million TEUs. Plaintiffs claim that the Corps did not properly identify or analyze alternatives, because the Corps refused to acknowledge the reality that permitting Bayport with 2.4 million TEUs, in addition to Shoal Point with 2.4 million TEUs, results in 4.8 million TEU container terminal capacity to Galveston Bay. In other words, Plaintiffs assert that the smoking gun is the arbitrary and capricious conduct of the Corps with respect to the Bayport Project, which is revealed by the fact that the Corps issued two permits to construct Bayport and Shoal Point which will conceivably result in 4.8 million TEUs. This, Plaintiffs complain, after the Corps had already found it environmentally unacceptable to permit half that capacity at the same sites. (Instrument No. 92, at 37). Plaintiffs believe that the Corps clearly eliminated the two-site alternative (three berths at Shoal Point and four at Bayport) because of “significant adverse impacts on surface transportation, noise levels, vibration, air quality ... aquatic sediments and dredging ... and wetlands.” (AR 3297, at 18-19). Plaintiffs complain that the effect of the Corps decision to permit thirteen berths and 4.8 million TEUs is devastating and doubles the size of the worst-case alternative. Defendant Corps also filed a Motion for Summary Judgment on April 9, 2004. (Instrument No. 96). According to the Corps, the dredging of- container and cruise terminal berths at Bayport would be accomplished during four phases over approximately 15 to 20 years. The Corps evaluated the permit application and determined that the proposed project would potentially have a significant environmental impact and that preparation of an Environmental Impact Statement would be necessary. In its motion, the Corps maintains that before issuing the permit for Bayport, the Corps prepared the required Final ’ Environmental Impact Statement (“FEIS”) pursuant to the requirements of the National Environmental Policy Act (“NEPA”). (AR 2385; Exh. 2). The Corps also issued a Record of Decision (“ROD”). (AR 3297; Exh. 3). The Corps maintains that Shoreacres’ allegations that the Corps’ decision "to issue the Bayport permit was arbitrary, capricious and inconsistent with NEPA and the CWA is without merit. The Corps asserts that it has complied fully with both statutes. Moreover, the Corps argues that its decision is fully supported by the Administrative Record. (Instrument No. 96, at 1). The Corps contends that the state water quality standards are incorporated into all federal CWA permits, which requires each applicant to submit a certification from the state that the proposed discharge will be consistent with state water quality requirements. (Instrument No. 96, at 7). On December 16, 2003, the Executive Director of the Texas Commission on Environmental Quality (“TCEQ”) issued a certification pursuant to Section 401 of the CWA confirming that the Bayport Project is consistent with state water quality standards. (AR 3299). The TCEQ also determined that Bayport is consistent with the goals and policies of the Texas Coastal Management Program. (Id.). The Corps claims that it coordinated its review of the permit application with other resource agencies with important roles in the process. Among these agencies are the Environmental Protection Agency (“EPA”), the U.S. Fish and Wildlife Service (“FWS”), the National Marine Fisheries Service (“NMFS”), the Texas Commission on Environmental Quality (“TCEQ”), and the Texas Parks and Wildlife Department (“TPWD”). (Instrument No. 96, at 9).. The NEPA process and Section 404 evaluation extended over a period of more than five years, and federal and state agencies and the general public have had multiple opportunities to provide input to the process. (Instrument No. 96, at 9). Before issuing the permit, The Corps claims that pursuant to 33 C.F.R. Part 320.4, it conducted a public interest review of the project and applied EPA’s guidelines under 33 U.S.C. § 1344(b)(1) as to Section 404 permits, and found that the project met the requirements of those regulations. (Instrument No. 96, at 9; Exh. 4). The Corps asserts that there is a significant distinction between judicial review of the Corp’s actions under NEPA and under the CWA. (Instrument No. 96, at 10). NEPA imposes procedural, not substantive, constraints on federal agencies. Strycker’s Bay Neighborhood Council v. Karlen, 444 U.S. at 227-28, 100 S.Ct. 497 (citation omitted). The Corps maintains that the Court is not empowered to substitute its judgment for that of the Corps, but is to evaluate whether “the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); City of Alexandria v. Federal Highway Admin., 756 F.2d 1014, 1017 (4th Cir.1985). The Corps claims that it is entitled to particular deference with regard to factual questions involving scientific matters in its area of expertise. Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 103, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). According to the Corps, it may issue a permit, it may deny a permit, or may impose conditions on a permit which would have to be accepted by the permit applicant for those conditions to become effective. (Instrument No. 96, at 13). In the case of a permit application, however, the Corps contends that it can influence the choice of a location, but ultimately cannot dictate to the applicant such a location. Rather, the Corps will decide whether or not to permit the project at the site proposed by the applicant. (Id.). The Port, as the intervenor, also submitted a Cross-Motion for Summary Judgment (Instrument No. 94), supporting the Corps position and their process in permitting the Bayport Project. The Port claims that the Bayport Project is the least environmentally damaging practicable alternative for the construction of the Port’s proposed container and cruise terminal. The Port argues that neither Shoal Point nor Pelican Island are practicable alternatives, nor would they have less impact on the aquatic environment. (Id., at 4). The Port notes that the Fifth Circuit has explicitly held that an agency may reject any environmental concerns: NEPA does not prohibit the undertaking of federal projects patently destructive of the environment; it simply mandates that the agency gather, study, and disseminate information concerning the projects’ environmental consequences. Sabine River Auth. v. U.S. Dep’t of Interi- or, 951 F.2d 669, 676 (5th Cir.1992). Therefore, the Port contends that because compliance with NEPA is a procedural matter, the Corps is only required to consider the relevant environmental impacts. (Instrument No. 94, at 6). Plaintiffs filed their Consolidated Response on Summary Judgment on April 15, 2004. (Instrument No. 100). In summary, Plaintiffs perceive the Corps’s action as an exercise in systematic refusal to consider the most important questions: the impact of deep dredging, destruction of community cohesion, filling of wetlands, alternatives of Shoal Point and Pelican Island, and the overall impact of permitting 4.8 million TEUs. (Instrument No. 100, at 20). In addition, Plaintiffs assert that whatever extent fiscal limits on the Port might be relevant, Plaintiffs contend that the Corps had to assess those fiscal limits. The ability of the [Port] to spend monies outside of Harris County (particularly in light of recent state legislation) needs to be investigated as part of assessing the remaining alternatives.” (AR 413). The Corps also responded to the Plaintiffs motion, Defendants’ Memorandum in Opposition to Plaintiffs’ Motion for Summary Judgment. (Instrument No. 99). The Corps contends that Shoreacres, has failed to show that it is entitled to summary judgment under the highly deferential standard of review established by the Administrative Procedures Act, 5 U.S.C. § 706. The- Corps claims that all of Sho-reacres’ claims under NEPA are without merit and all should be rejected by this Court on the record herein. (Id., at 2). Defendants argue that all of Plaintiffs claims are without merit and are legally and factually wrong. On April 16, 2004 the Port also filed a Reply to Plaintiffs’ Cross-Motion for Summary Judgment, essentially reiterating its support of the Corps’ decision making process and the Port’s agreement that it was appropriate under NEPA. (Instrument No. 102). The Port also maintains that the Corps authorization of a permit to the Port was warranted under CWA. (Instrument No. 102, at 12). The Port argues that Plaintiffs dissatisfaction with the result does not translate into arbitrary and capricious action by the Corps. (Id., at 1). The Port argues that Plaintiffs have long opposed the Bayport Project and now that they are faced with the Corps’ exhaustive treatment of alternatives and impacts which are contained in the Administrative Record, Plaintiffs are essentially asking the Court to go beyond what the law requires and to review the Corps’ decision de novo. According to the Port, Plaintiffs are unable to meaningfully attack the process under NEPA or the substantive aspects of the decision under the CWA, so they instead attack the result through selective citation of the record and comingling of the statutes. (Instrument No. 102, at 1). The Port asserts that the purpose of environmental regulation is not to create a perfect record. It is instead to ensure that the consequences of a federal action are disclosed and considered, and to protect the aquatic resources of the nation. The Port maintains that the Corps met this burden. (Id.). II. Standard of Review “[JJudicial review of agency decisions is not whether there is a genuine issue of material fact but whether the agency action was arbitrary, capricious, an abuse of discretion, not in accordance with law, or unsupported by substantial evidence on the record taken as a whole.” Welch v. U.S. Air Force, 249 F.Supp.2d 797, 806 (N.D.Tex.2003). When reviewing the decision of an administrative agency, “a motion for summary judgment ‘stands in a somewhat unusual light, in that the administrative record provides the complete factual predicate for the court’s review.’ ” Id. at 807; Tex. Comm, on Natural Res. v. Van Winkle, 197 F.Supp.2d 586, 595 (N.D.Tex.2002) (“TCONR ”). Because neither NEPA nor the CWA provide an independent right of action, Plaintiffs’ claims for review under NEPA and the CWA fall under the Administrative Procedure Act, 5 U.S.C. § 701, et seq. (“APA”). Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 904 (5th Cir.1983). Under the APA, courts must uphold agency decisions unless the decision is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The Fifth Circuit has stressed that “[ujnder this highly deferential standard of review, a reviewing court has the least latitude in finding grounds for reversal’ ” of an agency decision and cannot substitute its judgment for that of the agency. Sabine River Auth. v. United States Dep’t of Interior, 951 F.2d 669, 678 (5th Cir.1992). This Court may only consider “whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment” — it does not reweigh the evidence. Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989); Delta Found., Inc. v. United States, 303 F.3d 551, 563 (5th Cir.2002). “Thus, if the agency considers the factors and articulates a rational relationship between the facts and the choice made, its decision is not arbitrary and capricious.” Delta, 303 F.3d at 563; Harris v. United States, 19 F.3d 1090, 1096 (5th Cir.1994). Indeed, the “agency’s decision need not be ideal, so long as the agency gave minimal consideration to relevant facts contained in the record.” Id. III. Analysis Plaintiffs contend that in permitting the Port to build a container terminal at Bay-port, the Corps violated NEPA and the CWA and have in essence scoured the record in an effort to find fault with the Corps’ process and development of the FEIS. A. NEPA Plaintiffs assert that the Corps erred in four respects with regard to its obligations under NEPA. Plaintiffs claim that the Corps erred by (1) failing to consider the cumulative impacts of deepening the Houston Ship Channel to a depth of fifty feet; (2) failing to consider the impacts of the Bayport Project on community cohesion and values of the neighboring areas; (3) failing to consider the Texas City project at Shoal Point together with the Bayport Project as a cumulative action; and (4) failing to find the split alternative of Shoal Point/Bayport consisting of four berths at Bayport and three at Shoal Pointas a practical alternative, but then subsequently issuing two individual permits-one for Shoal Point and one for Bayport. The purpose of NEPA is to concentrate the attention of the federal government and the public on a proposed action so that the consequences of the action can be studied before the action is implemented and potential negative environmental impacts can be avoided. See Marsh v. Oregon Nat’l Res. Council, 490 U.S. 360, 371, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). NEPA’s mandate is “essentially procedural ... It is to insure a fully informed and well-considered decision.” Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, 435 U.S. 519, 558, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). “Notably, the NEPA statutory framework provides no substantive guarantees; it prescribes adherence to a particular process, not the production of a particular result.” Spiller v. White, 352 F.3d 235, 238 (5th Cir.2003). Nor does NEPA require the creation of a perfect record. 40 C.F.R. § 1500.1 (“Ultimately, of course it is not better documents but better decisions that count. NEPA’s purpose is not to generate paperwork — even excellent paperwork — but to foster excellent action.”). With this backdrop in mind, a court may not require agencies “to elevate environmental concerns over other, admittedly legitimate considerations.” Strycker’s Bay Neighborhood Council v. Karlen, 444 U.S. 223, 228-228 & n. 2, 100 S.Ct. 497, 62 L.Ed.2d 433 (1980); see also Davis Mountains Trans-Pecos Heritage Ass’n v. U.S. Air Force, 249 F.Supp.2d 763, 780 (N.D.Tex.2003) (“Congress did not require agencies to elevate environmental concerns over other appropriate considerations”); Center for Biological Diversity v. U.S. Fish and Wildlife, 202 F.Supp.2d 594, 649 (W.D.Tex.2002). Accordingly, courts should require full compliance with NEPA, in order that agencies will be fully aware of the impact of their decision. However, in doing so courts should not “fly speck” environmental impact statements — courts should be guided by a rule of reason. Citizens for Mass Transit, Inc. v. Adams, 630 F.2d 309, 313 (5th Cir.1980). “NEPA merely prohibits uninformed — rather than unwise — agency action.” Robertson v. Me- thow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). NEPA requires federal agencies to consider the environmental impact of any major federal actions they undertake, and to prepare environmental impact statements (“EIS”). 42 U.S.C. § 4332(2)(c). The Fifth Circuit has set forth three criteria for determining the adequacy of an EIS: (1) whether the agency in good faith objectively has taken a hard look at the environmental consequences of a proposed action and alternatives; (2) whether the EIS provides detail sufficient to allow those who did not participate in its preparation to understand and consider the pertinent environmental influences involved; and (3) whether the EIS explanation of alternatives is sufficient to permit a reasoned choice among different causes of action. Mississippi River Basin Alliance v. West-phal, 230 F.3d 170, 174 (5th Cir.2000). The Court considers these issues, bearing in mind that the agency’s compliance with NEPA’s procedural requirements is evaluated under a “rule of reason,” pursuant to which “an EIS is required to furnish only such information as appears to be reasonably necessary under the circumstances for evaluation of the project rather than to be so all-encompassing in scope that the task of preparing it would become either fruitless or well nigh impossible.” New York Natural Res. Def. Council, Inc. v. Kleppe, 429 U.S. 1307, 1311, 97 S.Ct. 4, 50 L.Ed.2d 38 (1976). 1. Deepening the Houston Ship Channel to Fifty Feet Plaintiffs contend that despite indications in the record that deepening the Houston Ship Channel to fifty feet is likely at some point, the Corps failed to analyze it as a cumulative impact as required by NEPA. The Port argues that the Corps rightly found that the further deepening of the channel to be too speculative to warrant 'treatment. (Instrument No. 94, at 19). The FEIS states: This projected growth rate [3.3%] would provide for approximately 325,940 ship and tow transits in the Galveston Bay System by the year 2030.... In order to accommodate this projected growth rate, marine terminal facilities would have to make more efficient use of them existing facilities and space, as well as construct new facilities at ne w locations in Galveston Bay. In addition further widening/deepening of the HSC and its connecting channels would likely be necessary, as well as the construction of new channels to land areas where terminal facilities could be constructed and currently do not have ship access. (AR 2385.11 at 4-19). The Corps maintains that it correctly concluded that there was no need to consider a deeper Houston Ship Channel of fifty feet. In short, Defendants’ assert that it is unreasonable to infer that construction of fifty foot wharves is tantamount to a plan to deepen the channel to fifty feet. See Izaak Walton League of Am. v. Marsh 655 F.2d 346, 374-75 (D.C.Cir.1981) (holding that additional channel capacity for one aspect of channel does not make deepening the rest of the channel foreseeable). The Port asserts that Plaintiffs’ Administrative Record citation does not indicate that the construction of the Bayport Terminal will cause or necessitate further deepening of the Houston Ship Channel. (Instrument No. 102, at 4). The statement that deepening would “likely be necessary” was based on a projected overall increase of 165% in marine traffic in the Galveston Bay system by 2030. (AR 2385.11 4-19). The Port contends that cases interpreting what is “reasonably foreseeable” have concluded that similarly remote possibilities based on projected growth do not require a cumulative impact analysis. (Instrument No. 102, at 5). Defendants assert that there is not now and there has not been any proposal made to deepen the Houston Ship Channel to fifty feet under the 404(b)(1) guidelines, 40 C.F.R. § 230.11(g). (Instrument No. 99, at 3). This regulation requires consideration only of foreseeable cumulative impacts. The Corps also determined that the current depth of the channel was more than “sufficient for operation of the [] vessels that are expected to be the most common vessels calling at the proposed facility.” (AR 3297 at 7). The Port argues that although the Administrative Record reflects some indication that the Corps might consider a fifty foot channel (AR 314), the Corps ultimately concluded that the distant possibility that deepening the channel may be required thirty years down the road is not a “reasonably foreseeable action” that required treatment in the Bayport FEIS. (AR 3297 at 7). Specifically the Corps states that “[b]e-cause the dredging of the Houston Ship Channel or Bayport Channel has not been proposed, much less studied, it is entirely speculative.... [therefore] NEPA does not require the Corps to address this issue.” (Instrument No. 96, at 21). For the reasons given, the Corps argues that the project is speculative, not foreseeable. Accordingly, the Corps and the Port argue that this determination was not arbitrary and capricious. (Instrument No. 94, at 23). While NEPA requires analysis of “reasonably foreseeable” impacts, 40 C.F.R. § 1508.7, it does not mandate consideration of speculative risks or impacts. See, e.g., Sabine River Auth. v. United States Dep’t of Interior, 951 F.2d 669, 680 (5th Cir.1992). Plaintiffs cite TCONR in support of their claim that further dredging of the Houston Ship Channel must be analyzed in the Bayport EIS. See Tex. Comm, on Natural Res. v. Van Winkle, 197 F.Supp.2d 586, 617 (N.D.Tex.2002). The court in TCONR held that “even if a foreseeable, future action is not a proposed action such that it does not need to be analyzed and decided in the same EIS, the cumulative impacts of this foreseeable action nevertheless must be analyzed in the EIS.” See Tex. Comm, on Natural Res. v. Van Winkle, 197 F.Supp.2d 586, 617 (N.D.Tex.2002). However, the facts in TCONR are very different than the facts the Court has in the present case. In TCONR, the financing for the “foreseeable future actions” was passed by voters in a bond election eleven years prior to the publishing of the EIS. In addition, there were several studies recommending the action and the implementation of the projects only required approval by the Corps before construction could begin. See id., at 619. Therefore the court found that the projects were “reasonably foreseeable future actions” and must me analyzed in the Corps’ EIS. Id. In this case, there is no plan or proposal to deepen the channel to fifty feet, Air Liquide Am. Corp. v. United States Army Corps of Eng’rs, 359 F.3d 358, 366 (5th Cir.2004) such action would require congressional authorization. There is only a suggestion in the record that long-range projections of ship traffic in the area would make this, and other significant resource-intensive developments, likely by the year 2030, which is beyond the Corps’ stated planning horizon. (AR 2385.11 at 4-19; AR 310 at 16). The Bayport Project, however, would not create a necessity for deepening the channel, only constituting 1.6-1.8% of this projected growth. (AR 320; AR 2385.11 at 4-19). The record also indicates that the cost involved does not justify deepening the channel at this time. (AR, 310 at 4). The Corps also concluded that the current depth was more than “sufficient for operation of the Panamax vessels that are expected to be the most common vessels calling at the proposed facilities.” (AR 3297 at 7). Taking this all into consideration, the Corps declined to analyze further deepening of the channel, noting that “[i]t is not appropriate to include such speculative actions in the EIS for this permit application.” (AR 3297 at 119). Plaintiffs also point to the fact that the Bayport wharf foundation docks are designed, if needed, to accommodate a future channel depth of fifty feet. This, however, is consistent with the Port’s 30-year practice of designing wharves to accommodate depths of 5 feet greater than the federally authorized depth of the Houston Ship Channel. The Corps explained this feature was reasonable to anticipate future increased capacity, focusing on the fact that the Bayport terminal was expected to have an operational life span of at least fifty years. (AR 3297 at 7, 118-19). Plaintiffs’ argument in this regard is essentially that because the Port has the capacity to accommodate depths of fifty feet, it indicates that such action is reasonably foreseeable. The Court disagrees. See Izaak Walton League of Am. v. Marsh, 655 F.2d 346, 374-75 (D.C.Cir. 1981). Courts considering even shorter-term projects and predictions than those at issue here have found them not to be “reasonably foreseeable.” Utahns for Better Transp. v. U.S. Dep’t of Transp., 305 F.3d 1152, 1173 (10th Cir.2002) (study predicting. traffic growth in 15 and 20 years too distant to require cumulative impact analysis); Village of Grand View v. Skinner, 947 F.2d 651, 659 (2d Cir.1991) (study indicating a need for further development in 20 years too distant); Neighbors Organized to Insure a Sound Environment, Inc. v. Engen, 665 F.Supp. 537, 545 (M.D.Tenn.1987) (study on need for project in 10 years too distant to be meaningfully evaluated), vacated as moot, 878 F.2d 174 (6th Cir.1989) (case moot because construction completed pending appeal); Communities, Inc. v. Busey, 956 F.2d 619, 626 (6th Cir.1992) (proposed reconstruction in 10 years too distant to be cumulative impact); Headwaters, Inc. v. Bureau of Land Mgmt., 914 F.2d 1174, 1181-82 (9th Cir.1990) (study of activity beyond 5 year plan not reasonably foreseeable for cumulative impacts analysis); Town of Cave Creek v. FAA, 325 F.3d 320, 331 (D.C.Cir.2003) (projection of noise effects 5 years out too speculative). This is even true where the project was actually planned, but not scheduled to be completed for some time. See Airport Neighbors Alliance, Inc. v. United States, 90 F.3d 426, 428 (10th Cir.1996). Accordingly, given the speculative nature of further dredging, the Court cannot conclude that the Corps was arbitrary or capricious in declining to consider the impact of dredging to depths of fifty feet in the FEIS. 2. Impacts on the Surrounding Community Plaintiffs claim that the Corps specifically failed to make an analysis of the issue of “community cohesion.” This specific quibble relates to the manner in which Plaintiffs versus Defendants define “community cohesion.” The Defendants respond by asserting that the Corps disclosed and considered possible impacts on area communities and that Plaintiffs are attempting to turn the Corps into a regional land planner. (Instrument No. 94, at 23). In addition, the Corps claims that it fully and carefully considered effects and impacts on local land use. (Instrument No. 99, at 3). Defendants contend that the Corps’ obligation under NEPA was not to make a decision based on such effects, but only to disclose those effects, prior to making a decision. The Corps claims it clearly did meet those requirements, as the Administrative Record reflects. (Id.). According to the Port, the Corps’ analysis adequately disclosed air pollution impacts and included conditions to limit impacts. (AR 3297 at 89-90). The Corps’ analysis also adequately disclosed fugitive dust emissions, which are covered by significant permit conditions. (AR 3297 at 89-90 and 127). The Corps claims that it paid close attention to noise-related impacts attributable to the Bayport Project and disclosed those impacts and imposed conditions. (AR 3297 at 38-44 and 120). According to the Port, Plaintiffs improperly attempt to cast the Corps into the role of a land use planner. The Port and the Corps support the contention that the Corps should consider economic or social effect on the human environment, they also contend that caselaw supports the assertion that these economic and social impacts are of lesser importance in an EIS than purely environment or ecological concerns. (Instrument No. 94, at 26). The Corps determined that the land used for the Bayport project “had been designated for industrial development for many years.” (AR 3297 at 32). Thus, the Corps found relatively minimal land use impacts arising out of the Port’s industrial use of their property in an otherwise predominantly industrial area. (AR 3297 at 32-40, 120). The Corps also looked at surrounding areas and determined that the Bayport Project would have minimal effect on the land use development of the nearby municipalities. (AR 3297 at 32-33). However, the Port did evaluate the potential diminution of residential property values and acknowledged that some residential property values might decline. However, such diminution of values was not subject to precise quantitative calculation. (AR 3297 at 119, 23, 35). Defendants also contend that the Corps’ consideration of human impacts is entitled to deference and that the Corps complied with NEPA. NEPA provides for consideration of the economic or social effects on the human environment in evaluating a permit application. See 40 C.F.R. § 1508.14. NEPA requires “a narrowly focused, indirect review of the economic assumptions underlying a federal project described in an impact statement.” Welch, 249 F.Supp.2d at 827; see also Sierra Club v. Sigler, 695 F.2d 957, 974-75 (5th Cir.1983). These economic and social impacts, however, “clearly occupy a lesser tier of importance in an EIS than do purely environmental or ecological concerns.” Welch, 249 F.Supp.2d at 827. The Fifth Circuit has long held that “[d]etermination of economic benefits and costs that are tangential to environmental consequences are within th[e] wide area of agency discretion.” S. La. Envtl. Council, Inc. v. Sand, 629 F.2d 1005,1011 (5th Cir.1980). The Corps identified many topics that were important to its decision, including roadway traffic, air quality, noise, public safety, social effects, such as population increases and division of existing communities, navigation and boating recreation, dredged material management, water quality, and terrestrial and aquatic biotic communities. (AR 3297 at 3). The Corps went on to detail these impacts. (AR 3297 at 32-64). Plaintiffs claim, however, that the EIS did not analyze what its findings mean with regard to land use patterns within the cities surrounding Bayport, in other words, to conduct a “community cohesion” analysis. The cases discussing a community cohesion analysis are primarily in the federal highway project context. See, e.g., Rothrock v. U.S., 62 F.3d 196, 199 (7th Cir.1995); Stop H-S Ass’n v. Dole, 740 F.2d 1442, 1461-62 (9th Cir.1984). Nevertheless, although the Corps’ discussion of the effects of the Bayport Project on the surrounding communities in the FEIS and the ROD was not entitled “community cohesion,” the Court finds that the Corps analyzed the factors that would logically be included in a discussion of community impact or “community cohesion.” The Corps extensively discussed potential impacts on “land use and coastal zone management,” “socioeconomic,” and “social characteristics and environmental justice” with respect to the various affected municipalities. (AR 3297 at 32-34). Finding that land to be used for the Bayport Project “had been designated for industrial development for many years”, the Corps found relatively minimal land use and socioeconomic impacts arising out the industrial use of this predominantly industrial property. (AR 3297 at 32, 120; Shoal Point ROD at 10-11). Indeed, no residences or businesses would be displaced by the Bayport Project. (AR 2385.10 § 3.4.3.3 at 3.4-13). In response to these municipalities’ comments that the project would affect local residents and community values, the Corps catalogued and responded to these municipalities’ diverse and voluminous comments in Section 3.4 and Appendix 6.2 of the FEIS. (AR 3297 at 34). The Court declines Plaintiffs’ invitation to cast the Corps as a regional land use planner by requiring more than this. See Isle of Hope Historical Ass’n v. United States Army Corps of Eng’rs, 646 F.2d 215, 221 (5th Cir.1981) (holding that, with respect to land use analysis, “[t]he EIS was not intended to be a substitute community planning device”). Accordingly, the Court cannot conclude that the Corps violated NEPA in their treatment or analysis of impacts to the human environment. 3. Treatment of Shoal Point and Bayport as a Cumulative Action Plaintiffs argue that the Corps’ failure to prepare a single EIS for the Shoal Point and Bayport projects violates NEPA. Defendants respond that NEPA only required the Corps to consider the cumulative effects of both permits in the Bayport EIS, which it did. In the course of the NEPA process, a total of 78 preliminary sites were identified. Through a three-tiered process using eight evaluation criteria, these sites were narrowed to six potential alternative locations. (AR 3297 at 12). Approximately one month prior to the release of the FEIS for the proposed Bayport project, the Corps issued a separate permit to construct a container facility at Shoal Point, a separate project in Texas City, Texas with no connection to the Bayport project other than the fact that it also would allow construction of marine transportation facilities. (AR 3297 at 3). The Corps claims that it was not engaged in deciding how to provide or authorize any particular level of port capacity in the Galveston Bay area. (Instrument No. 96, at 14). Accordingly, the Corps contends that Shoreacres’ arguments regarding the amount of capacity needed for port facilities in the same area are based on a fundamental misunderstanding of what the Corps was reviewing and analyzing. The Corps was not making any decision based on an assumed ceiling or limit on port capacities in the area. (Id., at 14). In the case at bar, the Corps maintains that it made an informed decision that the two container permits were better addressed in separate impact statements. (Id., at 16). “The determination of when various projects in an area are sufficiently concrete and closely related so as to require the filing of a single comprehensive EIS is a difficult one, ‘properly left to the informed discretion of the responsible federal agency.’ ” Friends of the River v. FERC, 720 F.2d 93, 104 n. 21 (D.C.Cir. 1983) (quoting Kleppe v. Sierra Club, 427 U.S. 390, 412, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976)). The Corps determined that a combined FEIS was unnecessary because the Bayport FEIS contained an assessment both of the project itself and the secondary and cumulative effects of the relevant activities. (AR 3297 at 107). In short, according to the Corps, the Bayport FEIS addressed the cumulative impacts of all reasonably foreseeable projects, including the Shoal Point permit. (Instrument No. 96, at 17). The Corps argues that it reasonably concluded that two separate review documents were the best way to assess the combined impact of the two separate permit proposals, therefore, this decision was not arbitrary. (Id., at 17). The Corps asserts that Shoreacres erroneously suggests that the Bayport FEIS does not consider the impact of the total development of both the Bayport and Shoal Point permits. (Instrument No. 1, at 109-17). In fact, both the Bayport FEIS and ROD and the Shoal Point FEIS and ROD include the assumption that both facilities may be built and each addressed the impacts the other project would have. (Id.). According to the Corps, both the Bayport FEIS and ROD and the Shoal Point FEIS and ROD fully satisfy the requirement that cumulative effects of projects be analyzed. (Id.). Defendant Intervenor Port maintains that the Corps did not abuse its discretion by addressing the Shoal Point project as a cumulative impact instead of permitting the Shoal Point and Bayport projects together under a single EIS. In this case, the Corps decided to permit the Bayport Project and Shoal Point separately and discuss both projects as cumulative impacts. The Port claims that this decision does not violate NEPA. (Instrument No. 94, at 7). The Port contends that NEPA projects are not “connected” if they could exist independently of each other. 40 C.F.R. § 1508.25(a)(1). In addition, the Port notes that Plaintiffs do no not provide the Court with any NEPA authority invalidating an agency decision to analyze permit application separately where the other project was thoroughly considered as a cumulative impact. (Id., at 9). The Port contends that throughout Plaintiffs complaint and motion for summary judgment, Plaintiffs are impermissi-bly questioning the result. Further, the Port argues, that underlying Plaintiffs’ focus on the greater impacts for the split alternative is a veiled and result oriented challenge to the need for both the Bayport and Shoal Point projects. The Port counters, noting that based on the forecasting, the Corps made an explicit determination that both the Bayport and Shoal Point projects would be needed to meet forecast-ed growth of demand for containerized cargo operations: Studies performed through the Texas Transportation Institute (TTI) predict a continued worldwide container movement growth rate ... along the Gulf of Mexico coast ... up to 29 new container berths could be needed in the Texas Central Gulf Region between 2001 and 2028. A permit has been issued for a proposed six-berth terminal at Shoal Point, but the overall projected need for additional container terminal facilities indicates that both facilities may be needed in the future. (AR 3297 at 10). The Port asserts that the Corps considered the cumulative impact from Shoal Point-even assuming the construction of Shoal Point as part of the no-action alternative. The Corps repeatedly recognized the Shoal Point project throughout the ROD. (AR 3297 at 3, 10, 14, 16, 19, 11, 112). The Shoal Point Project was permitted in late March 2003, with its authorization finalized in late April 2003 at the same time as the Bayport FEIS was in publication. Thus, the Bayport FEIS did state that “Shoal Point — remains a dredged materials PA [Placement Area].” (AR 2385.10 at 2-15). However, in the ROD the Corps did observe that although the project was permitted, it was not certain to occur, nevertheless, the Corps carried Shoal Point forward as an alternative site for the Bay-port Project. (AR 3297 at 111; AR 3297 at 3). In addition, the Corps considered the Shoal Point facility as a cumulative impact. (AR 32097 at 111). In fact, the Port contends that the Corps concluded in the FEIS that the Bayport and Shoal Point projects were so far apart geographically that there would be no cumulative effects with respect to noise, vibration, aesthetics, cultural resources, parks and recreation. (Instrument No. 94, at 18). NEPA requires federal agencies to prepare an EIS for all major federal actions significantly affecting the human environment. 42 U.S.C. § 4332(c). NEPA regulations require the Corps to consider three types of actions in determining the scope of an environmental impact statement: (1) connected actions, which “are closely related and therefore should be discussed in the same impact statement”; (2) cumulative actions, “which when viewed with other proposed actions have cumulatively significant impacts and should therefore be discussed in the same impact statement”; and (3) similar actions, “which when viewed with other reasonably foreseeable or proposed agency actions, have similarities that provide a basis for evaluating their environmental consequences together, such as common timing or geography.” 40 C.F.R. § 1508.25(a) (2004). The regulations explicitly exclude “unconnected single actions” from the list of actions that must be considered together in a single EIS. 40 C.F.R. § 1508.25(a)(2). Here, the Corps concluded that Bayport and Shoal Point were unconnected single actions. Because the Corps has discretion whether to consider “similar” actions in the same impact statement, 40 C.F.R. § 1508.25(a)(3), the Corps would be required to address Shoal Point and Bayport in the same EIS only if the two actions are “connected” or “cumulative” actions. See Earth Island Inst. v. United States Forest Serv., 351 F.3d 1291, 1304 (9th Cir.2003). As Defendants note, the Bayport permit and the Shoal Point permit were two separate proposals by two different applicants for two separate facilities, with different purposes and needs. (Instrument No. 96, at 16). Each has its own independent utility and is not interdependent or conditional on the other. The fact that both applications were pending concurrently does not, on its own, require the Corps to treat them in a single EIS. See 40 C.F.R. § 1508.25(a)(2). The Bayport application includes a terminal for cruise ships, whereas the Shoal Point facility does not. Acceptable alternatives for one facility would not be acceptable for the other facility. The Bayport Rule of Decision noted that the facilities are entirely unrelated. (AR 3297 at 111-112). Plaintiffs have not alleged or shown that the Corps chose to treat the permit applications in separate EISs to minimize the possible cumulative impacts to the environment. Plaintiffs have also not shown that the Bayport and Shoal Point projects are “connected” under NEPA. The regulations provide that projects are not “connected” if they could exist independently from one another. 40 C.F.R. § 1508.25(a)(1). As the AR 3297 indicates, Bayport and Shoal Point do not depend on one another to exist and have their own independent utility. See Enos v. Marsh, 769 F.2d 1363, 1371 (9th Cir.1985). Whether the Bayport and Shoal Point projects should be considered “cumulative actions” under the regulations requires additional analysis. Cumulative actions are those “which when viewed with other proposed actions have cumulatively significant impacts.” 40 C.F.R. § 1508.25(a)(2). NEPA “places discernible limits on which projects must be considered together for their cumulative impact.” Clairton Sportsmen’s Club v. Pa. Tpk Comm’n, 882 F.Supp. 455, 469 (W.D.Pa.1995). The need for a consolidated environmental impact statement depends on the facts with the focus being whether the actions are essentially independent or interdependent and whether each action involves an irrevocable commitment of resources. See Minn. Pub. Interest Research Group v. Butz, 541 F.2d 1292, 1306 (8th Cir.1976). The court in Wel