Full opinion text
MEMORANDUM OPINION KETANJI BROWN JACKSON, United States District Judge The Sierra Club and the National Wildlife Federation (“Plaintiffs”) have brought this action for a declaratory judgment against several federal agencies and their executive officers in their official capacity (the “Federal Agencies”) regarding construction of the Flanagan South Pipeline, a domestic oil pipeline running from Illinois to Oklahoma (the “FS Pipeline”). Plaintiffs allege that the Federal Agencies have failed to assess adequately the environmental impacts of this privately-owned pipeline, in violation of the National Environmental Policy Act (“NEPA”), the Clean Water Act (“CWA”), and the Administrative Procedure Act (“APA”). In addition, Plaintiffs have now filed a motion for a preliminary injunction that asks the Court to enjoin the actions of the Federal Agencies in relation to the FS Pipeline, and to enjoin construction and operation of the entire pipeline (which is in the process of being constructed mostly on privately-owned land) pending a final ruling on the merits of the case. This Court has considered the parties’ briefs on the motion for a preliminary injunction, the arguments made at the preliminary injunction hearing, the portions of the record that the parties have submitted in support of and in opposition to the motion, and the complex web of statutes and regulations that Plaintiffs’ allegations implicate. Although Plaintiffs have drafted a complaint that attacks the pipeline-related actions of the several government agencies separately, Plaintiffs’ central contention in this case is that the Federal Agencies had a collective statutory obligation to perform an in-depth environmental review of the entire FS Pipeline before any construction on the pipeline could commence. At least on the current record, however, Plaintiffs have significantly overstated the breadth of federal involvement in the pipeline project and have failed to establish sufficiently that applicable federal statutes and regulations would require the extensive environmental review process that Plaintiffs seek. Moreover, Plaintiffs have fallen short of demonstrating that irreparable harm will result if the current construction proceeds during the pendency of this litigation, and the Court is not convinced that the balance of harms and public interest factors weigh in Plaintiffs’ favor. Consequently, "as explained further below, the Court concludes that Plaintiffs’ motion for a preliminary injunction must be DENIED. 1. BACKGROUND A. The Flanagan South Pipeline The FS Pipeline is a proposed 589-mile domestic oil pipeline that, once constructed, will transport tar sands crude oil from Pontiac, Illinois, through the states of Missouri and Kansas, and ultimately into Cushing,' Oklahoma. Enbridge Pipelines (FSP) LLC (“Enbridge”), one of the leading energy transportation .companies in North America, owns the planned pipeline. Enbridge began construction of the pipeline on August 14, 20Í3, and expects to complete the pipeline in the summer of 2014. At least 560 miles of the 589 miles of pipe that will comprise the FS Pipeline will traverse land' that is entirely privately owned. ' According to'Enbridge, the company has identified 2,368 tracts owned by 1,720’ separate landowners along the course of the pipeline and has secured 96% of the land rights along the entire route. Thus, with respect to the vast majority of the pipeline, no federal permission or authorization is required for construction. However, it is undisputed that the FS Pipeline will at times cross federal lands and waterways at various points along its planned route through the heart of the country. Three types of federal crossings will occur and are at issue in this litigation: (1) 13.68 total miles of “waters of the United States” (as defined in the CWA and its implementing regulations) that are primarily located on private land but are subject to the jurisdiction of the Army Corps of Engineers (the “Corps”) under the CWA; (2) 12.3 miles of Native American land that is subject to the jurisdiction of the Bureau of Indian Affairs (“BIA”); and (3) 1.3 miles of land that the federal government owns and that is also under the Corps’s jurisdiction. ■ To construct and operate the portion of the pipeline that traverses these 27.28 total miles, Enbridge must have federal approval, and a separate statutory and regulatory scheme, discussed below, governs each type of land or. water crossing. B. Alleged Federal Involvement With The Flanagan South Pipeline Because Congress has not authorized the federal government to oversee construction of a domestic oil pipeline, Plaintiffs’ complaint relies on a series of federal environmental laws and regulations that require federal agencies with some involvement in domestic pipeline construction, to follow certain procedures. The applicable statutes and regulations are set forth in Part C below. The following description of Plaintiffs’ allegations regarding federal involvement with the FS Pipeline'provides the necessary context. 1. The Corps’s “Verifications” Under the Clean Water Act and Nationwide Permit 12 When constructed, the FS Pipeline will cross approximately 1,950 wetlands or waters under the jurisdiction of the Corps— an area that, as noted above, totals 13.68 miles. To undertake the portions of the FS Pipeline construction project that may impact these waterways, Enbridge is required by law to seek federal approval, as mentioned above and explained further below. In August and September of 2012, Enbridge filed a formal notice under the CWA’s general permitting system requesting Corps district engineers from each of the four Corps districts through which the proposed FS Pipeline runs to verify that construction of the FS Pipeline project is consistent with a pre-existing general permit that the Corps had previously issued. Enbridge’s notice included specific plans for mitigating any potential adverse impacts from the FS Pipeline construction project, as the general permitting system requires. One year later, in August and September 2013, each of the four Corps districts issued a verification letter to En-bridge, confirming that the FS Pipeline’s water crossings were consistent with an applicable general permit, provided En-bridge undertook the mitigation plans outlined in its notice. 2. The Corps’s Consideration Of Easements For Construction On Federal Lands In addition to the wetlands under the Corps’s jurisdiction, the FS Pipeline passes through approximately 1.3 miles of other federal land under the jurisdiction of the Corps, consisting of 0.7 miles of land at the Mississippi River near Quincy, Illinois, and 0.6 miles of land at the Arkansas River near Tulsa, Oklahoma. Congress has empowered federal agencies to grant rights-of-way across lands “for pipeline purposes for the transportation of oil, natural gas, synthetic liquid or gaseous fuels[,]” 30 U.S.C. § 185(a) (2012), and the governing statute expressly places numerous responsibilities on an agency considering whether to permit construction on federal land, including safety requirements, notice requirements, and reporting requirements (including reporting to' specific Congressional committees), id. § 185(g), (k), (w). An agency must also comply with applicable environmental statutes and regulations, such as the National Environmental Policy Act, discussed below. Id. § 185(h). In April and May of 2013, Enbridge applied to the relevant Corps districts for easements to construct the 1.3 mile segment of the FS Pipeline that runs over federal land. Enbridge submitted its applications using a standard form for the construction of transportation and utilities systems on federal lands — an application process that the Corps subjects to the same review procedures as any third-party request for the use of Corps lands. As of the writing of this Opinion, the Corps had informed the relevant Congressional committees (the House and Senate Committees on Natural Resources) about En-bridge’s easement applications, and had begun an environmental assessment of the project, but had not yet reached a decision about whether or not to grant Enbridge’s applications. 3. The BIA’s Consideration Of Easements For Construction On Indian Land That The Federal Government Holds In Trust Under 25 U.S.C. § 323, the BIA “is empowered to grant rights-of-way for all purposes, subject to such conditions as [the Secretary of the Interior] may prescribe, over and across any lands now or hereafter held in trust by the United States for individual Indians or Indian tribes.” The BIA has promulgated regulations governing the granting of easements over Indian land. See generally 25 C.F;R. Part 169 (2013). These regulations include specific guidelines for, among other things, applications, surveying, and providing consideration to landowners. Id. The regulations also include specific provisions pertaining to easements fon oil or gas pipelines. See id. § 196.25. The- proposed FS Pipeline crosses over 34 parcels of privately-owned Indian land subject to the BIA’s jurisdiction, comprising a total of 12.3 miles. As of the writing of this Opinion, Enbridge had applied to the BIA for easements over these parcels, and the BIA was in the process of conducting -an environmental assessment of the impact of the pipeline on those areas. The BIA had not yet determined whether to grant or deny Enbridge’s requested easements. 4. The Fish and Wildlife Service’s Biological Opinion And Incidental Take Statement As a part of the process for evaluating Enbridge’s request for easements to construct portions of the FS Pipeline on the federal lands as described above, the Corps and the BIA consulted the Fish and Wildlife Service (“FWS”) about the potential impact of the FS Pipeline on animal life in the area. Under the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531-1544 (2012), all federal agencies must consult with the FWS to ensure that “any action authorized, funded, or carried out by such agency” is unlikely “to jeopardize the continued existence of any endangered species or threatened species or result' in the destruction or adverse modification of habitat of such speeies[.]” 16 U.S.C. § 1536(a)(2). The agency or agencies must engage in formal consultations with the FWS, and the ESA’s implementing regulations contain detailed guidelines that govern these consultations. See, e.g., 50 C.F.R; § 402.14(c) (2013). Moreover, at the conclusion of the required consultation, the FWS must issue a written opinion “detailing how the agency action affects [any endangered] species or its critical habitat” and if any issues are identified, “suggesting ... reasonable and prudent alternatives” that the FWS believes would not run afoul of the ESA’s mandate to protect such species. 16 U.S.C. § 1536(b)(3)(A). If the FWS believes that the agency action might result in the “taking” (.i.e., killing) of some members of an endangered species, but is not likely to jeopardize that species’ existence or adversely affect its environment in violation of section 1536(a)(2), the FWS will issue an “incidental take statement” that sets out measures that the FWS considers “necessary or appropriate to minimize [the] impact” of the agency action on any endangered species. 16 U.S.C. § 1536(b)(4). Pursuant to this statutory and regulatory scheme, in May and June of 2013, both the Corps and the BIA requested that the FWS evaluate the impact of the construction of the FS Pipeline on certain endangered or threatened species. (FWS Biological Opinion on Enbridge Pipelines (FSP) LLC’s Flanagan South Pipeline Project (“Biological Opinion”), ECF No. 14-8, at i.) The Corps specifically requested the FWS’s opinion regarding the effects of the pipeline on both the decurrent false aster plant and the Indiana bat, while the BIA’s consultation request included both of those species and also the American burying beetle. (Id.) The FWS issued its Biological Opinion on July 24, 2013. With respect to the decurrent false aster, the FWS found that the effects from the FS Pipeline would be “small[, and] temporary, and recovery will be rapid.” (Id.) For the American burying beetle, the Biological Opinion concluded that the pipeline construction might modify approximately 200 acres of species habitat, and that some beetles may be disturbed or killed, but that “most of the effects [of construction on the beetle] are expected to be infrequent, of short duration, and reversible.” (Id. at i-ii.) Finally, regarding the Indiana bat, the FWS predicted that the construction would “potentially” kill 19 non-reproductive bats and “harm or harass” no more than 120 other bats, but that “these impacts are not likely to cause maternity colony impacts” and therefore “it is unlikely that the anticipated effects [of the pipeline] will affect the likelihood of achieving the recovery needs of the species[.]” (Id. at ii.) Additionally, because the FWS found that it was possible that the pipeline construction would result in the death of some endangered beetles and/or bats, it issued an incidental take statement that exempted the Corps, the BIA, and Enbridge from the prohibitions against “taking” endangered species found in the ESA, provided that any such taking was done in compliance with the terms of the incidental take statement. (Id.) 5. The Pipeline and Hazardous Materials Safety Administration’s Failure To Act On The Hat-Yet-Filed Oil Spill Response Plan Finally, as discussed further below, Plaintiffs rest one claim in the complaint on the in action of a federal agency regarding an assessment of the risks involved with transporting oil through the FS Pipeline. The Oil Pollution Act of 1990, 33 U.S.C. §§ 2701-2762, mandates that operators of oil facilities (which include pipelines) “prepare and submit to the President a plan for responding, to the maximum extent practicable, to a worst case discharge, and to a substantial threat of such a discharge, of oil or a hazardous substance.” 33 U.S.C. § 1321(j)(5) (2012). The Pipeline and Hazardous Materials Safety Administration (“PHMSA”), a division of Department of Transportation, has authority to promulgate regulations governing these response plans. See Exec. Order No. 12,777 § (2)(d)(2), 56 Fed.Reg. 54,757 (Oct. 22, 1991). PHMSA regulations permit pipeline operators to submit spill response plans based on “response zones,” such that more than one pipeline may be covered by a single plan if they are in the same geographic region. 49 C.F.R. §§ 194.5, 194.107 (2013). Moreover, the required response plan must be submitted before an operator can “handle, store, or transport oil in that pipeline,” but the operator does not need to submit a plan prior to the pipeline’s construction. Id. § 194.7(a). In addition, so long as the operator has submitted a plan to the PHMSA and has certified that there is adequate personnel and equipment to deal with an oil spill, a pipeline may be in operation for up to two years without PHMSA approval of a plan. Id. §§ 194.7(c), 194.119(e). As the owner and future operator of the proposed FS Pipeline, Enbridge is required to submit a response plan to the PHMSA before the pipeline begins operating. The FS Pipeline is still under construction, however. At the time of the writing of this Opinion, Enbridge had not yet submitted any oil spill response plan for PHMSA review. C. Plaintiffs’ Interests And Specific Claims Plaintiffs are the Sierra Club, one of the oldest and largest environmental organizations in the country, which currently has approximately 600,000 members and traces its roots back to 1892; and the National Wildlife Federation, the nation’s largest conservation advocacy and education organization. (First Amended" Complaint (“Compl.”), ECF No. 7, ¶¶ 12, 16.) Some of the Sierra Club’s members live in each of the regions through which the FS Pipeline is planned to run. (Id. ¶ 13.) Plaintiffs allege that the construction and operation of the FS Pipeline without proper environmental review will injure them, both because they rely on such environmental reviews for information used in planning their activities and disseminating information to their members, and because they and their members have aesthetic, scientific, recreational, business, and property interests in the areas where pipeline construction and operation will occur. (Id. ¶¶ 17-18.) Based on the complaint and the statements made during the preliminary injunction hearing, Plaintiffs’ primary concern appears to be that the proposed FS Pipeline will damage the environment and that the federal government has not adequately assessed the environmental impact of this pipeline proposal. However, as noted above, there is no federal statute that requires or permits federal oversight of an entirely domestic oil pipeline such as the one at issue here. Consequently, Plaintiffs have brought this action in federal court in reliance on. various federal laws that, when applicable, require agencies and individuals to comply with certain standards prior to undertaking construction projects that may impact the environment. Plaintiffs have organized the allegations in their complaint into six separate claims, five of which arise under National Environmental Policy Act, the Clean Water Act, and the Administrative Procedure Act. (See generally Compl. ¶¶ 143-93.) As promised, the statutory schemes that these claims implicate are discussed in more detail below. 1. The National Environmental Policy Act (“NEPA”) The bulk of Plaintiffs’ complaint arises under NEPA, 42 U.S.C. §§ 4321-4347 (2012). (See Compl. ¶¶ 155-89 (Counts II-V).) As a general matter, Congress enacted NEPA as a call to the federal government to consider 'the environmental consequences of its actions, see 42 U.S.C. § 4331(b)(1), and the regulations implementing NEPA describe it as the country’s “basic national charter” for environmental protection. 40 C.F.R. § 1500.1 (2013). NEPA is, in essence, a “procedural statute” designed to ensure that federal agencies make fully-informed and well-considered decisions. New York v. Nuclear Regulatory Comm’n, 681 F.3d 471, 476 (D.C.Cir.2012) (quoting Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978) (internal quotation marks omitted)). To this end, before a federal agency undertakes a “major federal aetion[ ] significantly affecting the quality of the human environment,” 42 U.S.C. § 4332(2)(C), NEPA requires the agency to evaluate the environmental consequences of that proposed action. The required evaluation involves preparing a detailed environmental impact statement (“EIS”) that describes the impact of the proposed action on the environment and any alternatives to the proposed action, which the agency must publish for public review and comment. Id. To determine whether a particular agency action qualifies as a “major federal action significantly affecting the quality of the human environment” such that an -EIS is required, an agency may opt to prepare a less-detailed environmental assessment (“EA”), which is a “concise public document” that briefly provides evidence and analysis to assist an agency in deciding whether the action in question requires an EIS. 40 C.F.R. '§ 1501.4(a)-(c); id. § 1508.9 (defining an EA). Based on the Information contained in the EA, the agency may proceed to prepare an EIS; alternatively, the agency may conclude that its action will not have a significant effect on the human environment such that an EIS is not warranted. 40 C.F.R. § 1501.4(e). NEPA is relevant to this case because most of Plaintiffs’ claims allege that, in myriad respects, the Federal Agencies have failed to abide by their NEPA review obligations with respect to the FS Pipeline. These claims generally fall into two categories: first, that the individual actions of certain Federal Agencies regarding the FS Pipeline were “major federal actions” requiring those agencies to prepare an EIS or at least undertake an EA under NEPA (Compl. ¶¶ 155-79 (Counts II-IV)); and second, that the combined actions of all the Federal Agencies gave rise to an unfulfilled NEPA obligation to conduct a detailed environmental analysis of the entire 589-mile pipeline as a whole (Compl. ¶¶ 180-89 (Count V)). 2. The Clean Water Act And Nationwide Permit 12 Plaintiffs maintain that the Corps’ actions in regard to the proposed FS Pipeline water crossings violate the CWA, 33 U.S.C. §§ 1251-1387 (2013), both because the Corps was required to conduct a NEPA review prior to providing the requested CWA verifications (Count II), and because the Corps erred in concluding that the construction project at issue here satisfied the requirements of the pre-existing general permit known as Nationwide Permit 12 (“NWP 12”) (Count VI). {See Compl. ¶¶ 155-64; 190-93.) Plaintiffs’ claims in this regard relate generally to the stated purpose of the CWA — to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,” 33 U.S.C. § 1251 — a goal that Congress has generally sought to accomplish by prohibiting the discharge of any pollutant, including dredged or fill material, into the “waters of the United States.” See 33 U.S.C. §§ 1311, 1362(6), (7), (12). Section 404 of the CWA allows for limited exceptions to this general prohibition against discharges, however; in this regard, the statute specifically authorizes the Secretary of the Army (acting through the Corps) to issue permits “for the discharge of dredged or fill material into the navigable waters at specified disposal sites.” 33 U.S.C. § 1344(a). Significantly for present purposes, two alternative types of discharge permits are available under Section 404: (1) individual permits that the Corps provides with respect to a particular project, and (2) general permits that are issued for a given activity within a certain geographical área, ie., a state, a region, or (as relevant here) nationwide. 33 U.S.C. §§ 1344(a), (e). Individual permits are subject to detailed application and processing instructions, and before the Corps can issue an individual permit, it must conduct a case-specific review of each application, including preparation of an EA or EIS pursuant to NEPA. See generally 33 C.F.R. Parts 323, 325 (2013) (setting forth the application and review guidelines for individual permits). General permits, on the other hand, are designed to streamline the permitting process for certain, pre-approved “categories] of activities,” namely, those activities that the Corps determines are “similar in nature,” “will cause only minimal adverse environmental effects when performed separately,” and “will have only minimal cumulative adverse effect on the environment.” 33 U.S.C. § 1344(e)(1); see generally 33 C.F.R. Part 330 (2013) (setting forth the purposes of and procedures relating to the general permit program). A general permit is valid for five years, and can be reissued for subsequent five-year periods. See 33 U.S.C. § 1344(e)(2). Moreover, once the Corps has issued or reissued a general permit, regional Corps officials known as “division engineers” retain “discretionary authority to modify, suspend, or revoke [general permit] authorizations for any specific geographic area, class of activities, or class of waters within” a given geographical location. 33 C.F.R. § 330.5(c)(1). Notably, general permits — including the nationwide permit at issue here — undergo a stringent pre-approval evaluation process that involves a comprehensive environmental assessment under NEPA and also public notice and comment. Consequently, once a general permit is issued or reissued, the requisite environmental analysis for any conforming project is considered to have been completed, and persons who seek to engage in activities that the general permit covers may ordinarily “proceed with activities authorized by [general permits] without notifying the [Corps].” Id. § 330.1(e)(1). In some cases, however, a prospective permittee must seek specific verification that the relevant general permit covers the activity, id. § 330.1(d), which is accomplished when a prospective permittee files a “pre-construction notice” (“PCN”) with the relevant Corps district engineer. After reviewing a PCN, the district engineer may choose to verify that the general permit is applicable by sending the permittee a verification letter immediately, or the district engineer “may add activity-specific conditions to ensure that the activity complies with the terms and conditions of the [general permit] and that the adverse impacts ... are individually and cumulatively minimal.” Id. § 330.1(e)(2). Alternatively, in response to a PCN, the district engineer may determine that the adverse effects of the activity are more than minimal and, as a result, either notify the prospective permittee that an individual permit is required, or permit the permittee to propose “measures ... to reduce the adverse impacts to minimal.” Id. § 330.1(e)(3). This case concerns Nationwide Permit 12, a nationwide permit that the Corps reissued in 2012. NWP 12 specifically authorizes discharges into federal waterways as required for the construction, maintenance, repair, and removal of utility lines and associated facilities in waters of the United States, provided the activity does not result in the loss of greater than 1/2— acre of waters of the United States for each single and complete project. Reissuance of Nationwide Permits, 77 Fed.Reg. 10,184, 10,271 (Feb. 21, 2012). The definition of a “utility line” in NWP 12 includes “any pipe or pipeline for the transportation of any gaseous, liquid, liquescent, or slurry substance, for any purpose[.]” Id. Moreover, for “linear” projects, such as the FS Pipeline, each crossing of a water body at a separate and distant location is considered a “single and complete project” for the purpose of NWP 12. 77 FecLReg. at 10,290. Prior to the reissuance of NWP 12 in 2012, the Corps followed the extensive evaluation process that the regulatory scheme requires for issuance of a general permit, including preparation of a comprehensive EA pursuant to NEPA. 42 U.S.C. § 4332(2)(C). The Corps also conducted an “impact analysis” under the Environmental Protection Agency’s CWA Section 404(b)(1) guidelines, see 40 C.F.R. Part 230 Subparts C-F, and performed a “public interest review” of the factors set forth in 33 C.F.R. § 320.4(a)(1) (2013). After conducting the relevant reviews and assessments, the Corps then produced a “decision document” that incorporated all of the information it gathered and the conclusions it drew from the reviews of the proposed reissuance of NWP 12. The Corps released this document (along with a notice in the Federal Register) .for public notice and comment. See 33 C.F.R. § 330.1(b); Proposal to Reissue and Modify Nationwide Permits, 76 Fed.Reg. 9,174 (Feb. 16, 2011). The Corps subsequently published a final version of the NWP 12 decision document, which authorized certain discharges in relation to utility projects as described, along with the Corps’s responses to any public comments. In the instant case, as noted in Part I.B.l above, Enbridge filed PCNs in August and September of 2012, in order to seek verifications from four district engineers ■ that the FS Pipeline construction project was consistent with NWP 12. En-bridge’s PCNs included extensive mitigation plans to offset the impact the construction might have on the environment, including requirements that existing flow rates be maintained; that in-stream excavation activities be limited in duration; that the contours of waterbody beds and banks be restored and stabilized within 24 hours; and that specific drilling techniques be employed to avoid any impact (even of a temporary nature) on certain large and select water bodies. {See, e.g., Deck of Joseph McGaver, ECF No. 27-2, ¶¶ 19-23.) In August and September of 2013, En-bridge received verifications from each of the four district engineers stating that discharges and other activities that impact waterways in relation to the construction of the FS Pipeline were consistent with NWP 12, provided that Enbridge complied in all respects with the environmental mitigation measures outlined in its PCNs. {Id. ¶ 12.) The district engineers further conditioned their verification on En-bridge’s purchasing wetland bank credits as compensation for some temporary and permanent changes of forested wetlands to emergent wetlands, at a cost of approximately $4 million. (Id. ¶ 26.) Despite these measures, Plaintiffs contend that the CWA requires the Corps to have done more to evaluate the environmental impact of the FS Pipeline" before verifying that the water crossings were consistent with NWP 12; in particular, Plaintiffs maintain that the Corps should have' conducted a NEPA review and should have produced either an EA or an EIS that took into consideration the overall environmental effect of the entire FS Pipeline project, including those portions that were to be constructed on privately owned land. (See Compl. ¶¶ 155-60 (Count II).) ■ Plaintiffs also argue that the district engineers erred in verifying the project's 1,950 water crossings under NWP 12 for two reasons: first, because they failed to take into account the “cumulative” effect of the project, and second, because they verified certain water crossings that are or will be closer to public water supply intakes than is permitted under the general permitting system. (See Compl. ¶¶ 190-93 (Count VI).) Significantly, Plaintiffs have eschewed any facial challenge to NWP 12 itself. 3. ■ The Administrative Procedure Act Plaintiffs’ complaint alleges that, insofar as none of the Federal Agencies have completed an EA and EIS with respect to the FS Pipeline, the Federal Agencies have not only violated NEPA, they have also violated the APA. This coupling of the NEPA requirement with APA review arises primarily from the fact that “NEPA does not provide a separate cause of action for plaintiffs seeking to enforce its EIS requirements.” Nat’l Coal. to Save Our Mall v. Norton, 161 F.Supp.2d 14, 19 (D.D.C.2001), aff'd, 269 F.3d 1092 (D.C.Cir.2001). Therefore, Plaintiffs must bring their NEPA claims under a separate statutory scheme, typically the general review provision of the APA. See, e.g., City of Williams v. Dombeck, 151 F.Supp.2d 9, 25 (D.D.C.2001). Under the APA, a court reviews an agency action to determine whether it is “arbitrary or capricious.” 5 U.S.C. § 706(2)(A) (2012). An agency acts arbitrarily or capriciously if it “reliefs] on factors which Congress has not intended it to consider, entirely fail[s] to consider an important aspect of the problem, [or] offer[s] an explanation for its decision that runs counter to the evidence before the agency[ ] or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Stephens v. U.S. Dep’t of Labor, 571 F.Supp.2d 186, 191 (D.D.C.2008). Courts considering an APA claim in the NEPA context often draw a distinction between, complaints about the scope of an agency’s NEPA analysis, on the one hand, claims that an agency has erred in determining that it is not required to perform a NEPA analysis, and on the other. In the first category, courts review an agency’s decision to conduct a limited NEPA review under the typical APA “arbitrary and capricious” standard because the question presented for review is generally a factual, not legal, dispute. See, e.g., Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 377, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (explaining that, when a question presented for review involves a factual dispute, the court must defer to “the informed discretion of the responsible federal agencies.”). In the second category, where an agency concludes that NEPA does not apply to its actions at all, the agency’s decision is “not entitled to the deference that courts must accord to an agency’s interpretation of its governing statute and is instead a question of law, subject to de novo review.” Sierra Club v. U.S. Dep’t of Agric., 477 F.Supp.2d 44, 54 (D.D.C.2011) (internal quotation marks omitted). Here, in addition to making several APA claims that derive from the Federal Agencies’ alleged failure to comply with NEPA (see Compl. ¶¶ 155-89 (Claims II-V)), Plaintiffs also contend that the Corps violated the APA insofar as that agency’s district engineers verified that the water crossings at issue in this action satisfied the standards set forth in NWP 12 (see id. ¶¶ 190-93 (Claim VI)). This latter claim is reviewed under the familiar arbitrary and capricious standard applicable to claims arising under the APA. See 5 U.S.C. § 706(2)(A). 4. The Instant Complaint The aforementioned statutory and regulatory regimes loom large in any consideration of Plaintiffs’ complaint, and this is especially so where, as here, Plaintiffs have filed a motion for a preliminary injunction, thereby requiring the Court to assess the likelihood of their success on the merits. (See infra, Part II.) The Court notes that Plaintiffs’ complaint is not a model of clarity with respect to what conduct is being alleged as a violation of which statute, however; hence, repeated reminders of the specific claims and the implicated statutes are required. To summarize what has already been described, the instant complaint contains six claims, five of which are relevant to the pending motion. Claim II alleges that the Corps violated NEPA and the APA, and references both the Corps’s verifications that the water crossings satisfy NWP 12, which were made pursuant to the CWA, and the requested easements over federal land, which the Corps is apparently still considering pursuant to their authority to grant easements for construction projects that traverse land over which the Corps has jurisdiction. In this claim, Plaintiffs maintain that the Corps violated federal law when it issued the NWP 12 verifications without performing an environmental assessment of the pipeline (Compl. ¶¶ 156-60), and also when it “allow[ed] Enbridge to proceed with construction before the easements have been granted, and before [the] required environmental review has been completed!.]” (Id. ¶ 161.) Claim III alleges that the FWS violated NEPA and the APA when, without conducting a comprehensive environmental assessment, it issued the required Biological Opinion and incidental take statement in response to the other agencies’ formal request for a consultation regarding the potential impact of the proposed pipeline construction project on certain species. (Id. ¶¶ 165-71.) Claim IV alleges that the PHMSA violated NEPA and the APA when it failed to approve an oil spill response plan pursuant to the Oil Pollution Act prior to the beginning of pipeline construction, even though no such plan has been prepared or submitted to the agency. (Id. ¶¶ 172-79.) Claim V alleges that' all of these federal agency actions or inactions — including the actions of the BIA in considering En-bridge’s request for easements over Indian land (which are not the subject of a separate claim) — gave rise to an obligation on the part of the Federal Agencies to conduct a full-scale NEPA review of the entire FS Pipeline, and to select a “lead agency” primarily responsible for preparing the report. (Id. ¶¶ 180-89.) Finally, Claim VI alleges that the Corps violated NWP 12, the CWA, and the APA both when it allegedly failed to include consideration of the cumulative effect of all the verifications issued in connection with the FS Pipeline in its analysis of whether the verifications satisfied NWP 12, and also when it verified certain water crossings that are purportedly outside the scope of NWP 12 because they are in the proximity of a public water supply intake. (Id. ¶¶ 190-193.) As a result of all of these alleged violations of federal law, Plaintiffs’ complaint asks this Court for “a declaratory ruling” that contains the following specific findings: (a) the Corps should have prepared an EA or an EIS for its verifications and easements; (b) the [FWS] should have prepared an EA or EIS for its Biological Opinion and Incidental Take Statement; (c) PHMSA should have prepared an EA or an EIS for the [FS Pipeline’s] emergency response plan; (d) the Corps or one of the other federal agencies involved should have prepared an EA or an EIS for the entire [FS] Pipeline project, or at a minimum designated a lead agency for that comprehensive NEPA analysis; and (e) the Corps’ verifications of the [FS Pipeline] were contrary to the Clean Water Act and [NWP 12]. (Compl. ¶ 8.) Moreover, as mentioned previously, Plaintiffs have now filed a motion for a preliminary injunction asking the Court to suspend all actions of the Federal Agencies related to the FS Pipeline and to “enjoin[ ] Enbridge Pipelines LLC and all of its agents, officers, employees and anyone acting in concert with it, from construction and operation of the [FS Pipeline] pending a final ruling on the merits.” (Plaintiffs’ Opening Brief (“Pl.Br.”), ECF No. 14, at 1.) II. PRELIMINARY INJUNCTION STANDARD A preliminary injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). A party seeking a preliminary injunction “must establish [1] that [it] is likely to succeed on the merits, [2] that [it] is likely to suffer irreparable harm in the absence of prehminary relief, [3] that the balance of equities tips in [its] favor, and [4] that an injunction is in the public interest.” Id. at 20, 129 S.Ct. 365. In conducting an inquiry into these four factors, “[a] district court must ‘balance the strengths of the requesting party’s arguments in each of the four required areas.’ ... If the showing in one area is particularly strong, an injunction may issue even if the showings in other areas are rather weak.” Chaplaincy of Full Gospel Churches v. England (“CFGC”), 454 F.3d 290, 297 (D.C.Cir.2006) (quoting CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 746 (D.C.Cir.1995)). However, “a movant must demonstrate ‘at least some injury’ for a preliminary injunction to issue.” Id. (citation omitted). III. ANALYSIS A. Likelihood Of Success On The Merits 1. Plaintiffs’ NEPA Claims Four counts of Plaintiffs’ complaint directly implicate NEPA, as previously explained. Although Plaintiffs have opted to plead substantially similar NEPA allegations in separate counts, Plaintiffs have repeatedly summarized their overarching NEPA contention as the argument that as a result of the Federal Agencies’ participation in various aspects of the FS Pipeline construction project, the agencies had a statutory obligation to prepare an EIS, or at least to conduct an EA, of the entire pipeline, even those portions that are being constructed on private land and that would otherwise not be subject to federal oversight. (See, e.g., PL Br. at 19-21; Plaintiffs’ Reply Brief (“Pl.Reply”), ECF No. 34, at 19-21; Hr’g Tr. (Sept. 27, 2013), at 10:9-11 (statement of Plaintiffs’ counsel that “[t]he question [in this case] is whether any federal agency has to look at the entire oil pipeline.”).) There is no dispute that the NEPA duty to prepare an EIS or to conduct an EA — hereinafter collectively referred to as an “environmental review” under NEPA — only arises when a federal agency undertakes “major federal action[ ] significantly affecting the quality of the human environment.]” 42 U.S.C. § 4332(2)(C). For the reasons that follow, the Court concludes that Plaintiffs have not demonstrated that they are likely to succeed on the merits of their contention that the participation of any of the Federal Agencies, alone or in combination, triggered a NEPA obligation to conduct an environmental review of the FS Pipeline before construction on the pipeline project commenced. a. The Corps’s Verifications Were Issued Under NWP 12 And Thus An Individualized Environmental Review Under NEPA Was Not Required Plaintiffs’ myriad allegations and assertions regarding the Corps’s CWA verifications appear to boil down to two basic contentions: (1) the verifications themselves “[constitute [m]ajor [fjederal [a]ction[s]” that triggered a duty on the part of the Corps to conduct an environmental review under NEPA (Pl. Br. at 13), and (2) the fact that the verifications in this case involved many water crossings spread out throughout the entire pipeline transformed the otherwise private construction project into a major federal action such that the Corps should have conducted an environmental review of the pipeline pursuant to NEPA (id. at 19). Neither of these assertions is likely to be successful on the merits. First of all, the linchpin of these related arguments is the mistaken assumption that the verifications are the equivalent of a permit insofar as they effectively authorized the FS Pipeline to proceed. (See, e.g.,id. at 13 (stating that “[t]he Corpses] verifications under NWP 12 permit the construction of the Pipeline” and that “Corpses] approval is ‘essential to completion of the project’” (citation omitted)); see also id. (“No part of Flanagan South could operate without the verifications.”).) To be sure, some courts have held that “ ‘if a federal permit is a prerequisite for a project with adverse impact on the environment, issuance of that permit does constitute a major federal action’ ” for NEPA purposes, as Plaintiffs argue here. (PI. Br. at 13 (quoting Ramsey v. Kantor, 96 F.3d 434, 444 (9th Cir.1996)); see also id. (citing Wyoming Outdoor Council v. U.S. Corps of Eng’rs, 351 F.Supp.2d 1232, 1242 (D.Wyo.2005)).) But such courts generally were not assessing verifications under the CWA, and to characterize the verifications here as “allowing” or “approving” the FS Pipeline project is inaccurate — the record suggests that Enbridge evaluated the risks and started construction of portions of the pipeline on private land even before it had secured all of the necessary federal rights-of-way — and also manifestly inconsistent with the fact that no federal approval or permission is required for construction of a domestic oil pipeline such as this one. Moreover, and even more important, the law quite clearly distinguishes between “verifications” and “permits” in the CWA context, compare 33 C.F.R. Part 325 (establishing procedures for individual permits), with 33 C.F.R. Part 330 (detailing procedures for verification under general permitting system), and the entire point of the general permitting system is to avoid the burden of having to conduct an environmental review under NEPA when a verification — as distinguished from an individual discharge permit — is sought. As previously and extensively explained, under the general permitting system, the Corps conducts an extensive environmental review and provides the public with notice and an opportunity to comment regarding categories of construction activity that the Corps seeks to designate as having minimal impact on waterways within specified geographical regions. See 33 C.F.R. § 330.1(b). The purpose of the statute that authorizes general permits such as the nationwide permit at issue here is to allow the Corps to designate certain construction projects as eligible for CWA discharge permits “with little, if any, delay or paperwork” because they fit within these pre-cleared categories of activities. Id.; see also Snoqualmie Valley Pres. Alliance v. U.S. Army Corps of Eng’rs, 683 F.3d 1155, 1164 (9th Cir.2012) (“The purpose of [the NWP] scheme is to enable the Corps to quickly reach determinations regarding activities that will have minimal environmental impacts[.]”). Courts have found, and this Court agrees, that “[r]equiring an elaborate analysis of the applicable regulations and the facts would defeat th[e] purpose[ ]” of a general permit. Snoqualmie Valley, 683 F.3d at 1163. Consequently, it makes little sense that, notwithstanding the FS Pipeline project’s eligibility for verification under NWP 12, the Corps nevertheless had to conduct a full environmental review under NEPA, as Plaintiffs maintain. In other words, the requisite comprehensive environmental review is done upfront under the general permitting system precisely to avoid a NEPA environmental review regarding certain projects that fit into categories of activity that have been predetermined to have minimal environmental impact. Therefore, once the Corps’s district engineers verified that the discharges resulting from the FS Pipeline satisfied NWP 12, no additional environmental review was required. It is also conceptually mistaken to characterize a CWA verification as qualifying for “major federal action” status when the Corps’s actual role in providing a verification letter pursuant to the general permitting process is properly understood. Many projects undertaken pursuant to a general permit do not even need to be brought to the Corps’s attention; there is no federal action, much less “major” federal action, in regard to such projects. See 33 C.F.R. § 330.1(e)(1). Even when a general permit requires that the Corps provide pre-construction verification, such as is the case with NWP 12, the Corps’s role is limited to determining whether the project in question does or does not satisfy the terms of the general permit, and if not, what steps the party seeking verification must take to bring their project within the ambit of that authorization. Id. § 330.1(e)(3). This type of check-in is far less involved than the probing assessment of the particular facts, circumstances, and environmental consequences of a specific project proposal that precedes a Corps determination of whether or not an individual discharge permit should issue. Put another way, under the nationwide permit system, the Corps has already done an environmental review on a general categorical basis and has already given its imprimatur to discharges that result from the type of construction activity at issue under specified circumstances. When a prospective permittee files a pre-clearance notice, the only thing left to be done is for the Corps’s district engineers to verify that the planned project does, in fact, fit within the category of activities that the Corps has already authorized. And given Congress’s stated interest in targeting “major federal actions” for extensive environmental review under the NEPA statute, 42 U.S.C. § 4332(2)(C) (emphasis added), it is unlikely that this limited verification process is what Congress had in mind. . In sum, Plaintiffs do not, and cannot, dispute that the general permitting system operates on a different track than the individual project-by-project permitting process for construction project discharges that would otherwise apply under the CWA, or that only major federal actions trigger a duty to conduct an environmental review under NEPA. Plaintiffs also disclaim any facial challenge to the general permitting statute or NWP 12 in the context of this action, see Hr’g Tr. at 15:8-13, and it is clear that when a project proceeds under a valid general permit, NEPA’s environmental review obligation and other permitting requirements that would otherwise apply are irrelevant. See, e.g.,Ouachita Riverkeeper, Inc. v. Bostick, 938 F.Supp.2d 32, 35-36, 45-46 & 46 n.7 (D.D.C.2013) (distinguishing between nationwide and individual permits and finding that no NEPA analysis was required where construction was properly verified under NWP 12); Snoqualmie Valley, 683 F.3d at 1164 (“Verifying that permittees may properly proceed under a nationwide permit does not require a full NEPA analysis at the time of the verification.”). With all this considered, the Court sees no clear path to victory for Plaintiffs regarding the first aspect of their claim that the Corps violated NEPA when it proceeded to verify that the discharges and other activities related to construction of the FS Pipeline were consistent with NWP 12 without conducting an environmental review. Plaintiffs’ related contention regarding the Corps’s verifications — that the large number of water crossings and related verifications involved with the FS Pipeline project makes this project a major federal action for NEPA purposes — fares no better. Plaintiffs take issue with the fact that four different Corps district engineers verified approximately 1,950 separate water crossings related to the FS Pipeline under NWP 12 without undertaking a comprehensive NEPA analysis of the pipeline. (See, e.cj., PI. Br. at 13, 20, 25.) But Plaintiffs have not established that the number of verifications requested in relation to a project does or should have any effect on the general permitting system, much less that a project can be pushed off the general permit track and made to proceed down the alternative individual permit route if more than a certain number of verifications are involved. Nor do Plaintiffs provide any reason why the number of verifications required by a particular project should have any bearing on that project’s ability to be verified as consistent with a general permit. Plaintiffs have not identified any authority in the law or in the language of NWP 12 that would allow the Court to graft the NEPA requirement attendant to the individualized permitting system onto the general permitting system whenever the Corps issues a large number of verifications with respect to a linear construction project such as the FS Pipeline, and the Court sees no reason for doing so, especially where, as here, importing an environmental review obligation would undermine the purpose and efficacy of the general permitting system. Moreover, Plaintiffs have also thus far failed to provide an answer to the practical concern that requiring additional environmental review for projects that qualify for a general permit would give rise to significant and untenable uncertainty for any construction project — large or small — that seeks to rely on a general permit in lieu of an individual permit and accompanying NEPA review. Finally, the Court notes that Spiller v. Walker, No. A 98 CA 255 SS, 1998 U.S. Dist. LEXIS 18341 (WD.Tex. Aug. 25, 1998), and the dissenting opinion in Sierra Club v. Bostick, No. 12-6201, 539 Fed.Appx. 885, 2013 WL 5539633, at *9 (10th Cir. Oct. 9, 2013)—upon which Plaintiffs rely — are unpersuasive primarily because the logic of these cases does not sufficiently account for the fact that Congress established a general permitting system as an alternative to the requirement that construction projects with a minimal potential impact on national waterways obtain an individual permit under the CWA. Like the instant case, Spiller involved an oil pipeline that crossed both waterways and federal land under the Corps’s jurisdiction. Moreover, although the Spiller court is not entirely clear on this point, it appears that the pipeline operator in that ease applied to have the water crossings verified pursuant to a general permit. See id. at *39 (“[The pipeline operator] has requested a nationwide permit under section 404 of the Clean Water Aet[.]”). Under the circumstances presented, the Spiller court con-. eluded that “[t]he Army’s role in granting permits for construction over navigable waters and granting a right-of-way over [federal land] combine to have such a crucial impact on the construction of the [pipeline] at so many points along the pipeline that it can only be described as ‘major [f]ederal action.’ ” Id. at *40-41. Of particular note in this passage is the fact that the Spiller court invoked the “Army’s role in granting permits” as indicative of the level of federal involvement in the pipeline, and Plaintiffs point to this language as support for the proposition that the issuance of permits under the CWA where the federally-controlled waters were found throughout the project required NEPA review of the project. (See PI. Br. at 17.) As explained above, however, the Corps does not grant permits pursuant to the general permitting process; rather, it simply verifies that an application meets the criteria for the pre-existing general authorization. And this difference is not merely semantic — rather, the process for the Corps’s issuing an individual permit is very different, and far more involved, than the process of verifying that a construction project is consistent with the terms of a general permit. The court in Spiller failed entirely to consider this crucial distinction; indeed, apart from the single passing reference to a nationwide permit mentioned above, the Spiller opinion contains no discussion of the general permitting system at all. Therefore, in addition to the fact that Spiller is not binding authority in this jurisdiction, this Court finds that it simply cannot follow Spiller’s logic. Nor does the dissenting opinion in Bostick add any additional heft to Plaintiffs’ argument that Spiller reached the right result. (See Plaintiffs’ Notice of Supplemental Authority (“Pl.Supp.Br.”), ECF No. 42, at 2-3.) Bostick is a Tenth Circuit case that was on appeal from the denial of a preliminary injunction where the plaintiffs had launched a facial challenge to NWP 12 (that alone distinguishes it from the instant • matter). 539 Fed.Appx. at 887-88, 2013 WL 5539633, at *1. Although the majority opinion reached only the question of irreparable harm, the dissenting judge evaluated likelihood of success on the merits, and relying extensively on Spiller, concluded that the entire pipeline at issue in that case — the nearly 500-mile Gulf Coast Pipeline — should have been subject to NEPA review. Id. at 900-01, *13. The principal factual basis for the dissenter’s conclusion was the “number of permits issued by the Corps relative to the overall size of the Gulf Coast Pipeline,” and in light of this ratio, the dissenter found it “patently ludicrous” to maintain that “the Corps’ permitting involves only a ‘link’ in the Gulf Coast Pipeline[]” such that it was not a major federal action for NEPA purposes. Id. at 898-99,*11. But, like the Spiller judge before him, the dissenting judge in Bostick inexplicably failed to acknowledge the critical difference between the Corps’s role as permitter — an authority it exercises when and if an individual discharge permit is requested — and its role as a verifier, which it undertakes when a general permit involving construction activity that has already received extensive environmental review requires an applicant to file a preclearance notice and to obtain the Corps’s verification that its project is consistent with the existing general permit. Rather, the dissenting opinion (mistakenly) asserts that the Corps “issue[d] 2,227 permits” regarding the Gulf Coast Pipeline. Id. at 898, *11 (emphasis added). And having so mischaracterized the Corps’s role with respect to the pipeline project, it is no wonder that the dissenting judge believed that the Corps’s verification of the large number of water crossings at issue was a major federal action for NEPA purposes. Id. at 899-900, *12. The instant Court views the distinction between verifications and permits'as making all of the difference as far as a NEPA analysis is concerned, as explained above. Therefore, even setting aside the fact that a dissenting opinion has no precedential value, the Bostick dissent’s failure to acknowledge that the Corps’s verifications are not the functional equivalent of permits renders its analysis wholly unpersuasive. b. The Fish and Wildlife Service’s Biological Opinion and Incidental Take Statement Did Not Trigger A Duty To Undertake A NEPA Review Plaintiffs also maintain that the FWS engaged in a major federal action sufficient to give rise to an obligation to perform a NEPA environmental review of the FS Pipeline when it issued the Biological Opinion and incidental take statement in response to formal requests from the Corps and the BIA. (PI. Br. at 21-22; cf. Defendant’s Opposition Brief (“Def.Br.”); ECF No. 28, at 15-16.) The statute pursuant to which the FWS issued its opinion and take statement (Section 7 of the ESA, 16 U.S.C. § 1536(b)) establishes a “consultation” process whereby other federal agencies considering whether or not to exercise their own permitting authority engage with the FWS — a process that differs significantly from the kind of agency activity that ordinarily counts as major federal action for NEPA purposes. Compare City of Dania Beach, Fla. v. FAA, 485 F.3d 1181, 1189 (D.C.Cir.2007) (FAA regulation expanding airport runway use was “clearly major federal action” requiring NEPA review). The Court’s hesitancy to view a Section 7 consultation as a major federal action on the part of the FWS for NEPA purposes is especially justified given that, under Section 7, it is the requesting agency, not the FWS, that ultimately decides what impact the biological opinion and incidental take statement will have on the construction project under consideration. See 50 C.F.R. § 402.15(a) (2013) (“Following the issuance of a biological opinion, the Federal agency shall determine whether and in what manner to proceed with the action in light of its section 7 obligations and the Service’s biological opinion.”). But this is not to say that an FWS opinion and incidental take statement issued pursuant to the Section 7 consultation process can never rise to the level of major federal action; in Ramsey v. Kantor, 96 F.3d 434 (9th Cir.1996)—the primary legal precedent Plaintiffs offer in support of the argument that the FWS’s Biological Opinion and incidental take statement constituted a major federal action in this case — the Ninth Circuit held as much. Ramsey involved a legal challenge to two states’ plans for the management of their salmon fisheries. The states of Oregon and Washington sought to issue permits for salmon fishing in certain rivers where fishing would otherwise be off limits under the Endangered Species Act because endangered species of salmon mingled with non-endangered salmon. Id. at 439. As the Ninth Circuit panel viewed the facts, salmon fishing in those areas as authorized by state law could only proceed consistent with the Endangered Species Act if the federal agency that regulates activities impacting endangered salmon rendered a biological opinion “examining the proposed action and the anticipated effects on the species,” id. at 440, and if that agency also issued an incidental take statement that effectively waived the otherwise applicable federal penalty for the incidental killing of a certain number of the endangered type of salmon. The issue presented in Ramsey was whether issuance of an incidental take statement under such circumstances constituted a major federal action that gave rise to a NEPA duty to conduct an environmental review of the state fishing plans. Id. at 443. Emphasizing that “it is all but impossible to fish for [non-endangered] salmon ... without incidentally taking salmon that are listed [as endangered species,]” the panel held that the federal. agency’s incidental take statement was a major federal action for the purpose of NEPA. Id. at 444. The Ramsey court’s conclusion finds no applicability here. Ramsey’s holding rested on the court’s observation that “the incidental take statement in this case is functionally equivalent to a permit because the activity in question would, for all practical purposes, be prohibited but for the incidental take statement.” Id. (emphasis added). The project that was under consideration in Ramsey was the states’ plan to allow fishing for non-endangered salmon in areas that ensured that endangered salmon would be caught, and under those circumstances, the federal agency’s incidental take statement was clearly essential to the adoption of that plan. See id. at 444. Here, by contrast, the FWS’s Biological Opinion is at best peripheral to the project in question. The FS P