Richland/Wilkin Joint Powers Authority v. United States Army Corps of Engineers (279 F. Supp. 3d 846, 2017)

United States District Court for the District of Minnesota 2017-09-07

Navigation and Navigable Waters The Public Health and Welfare

Citations

Full opinion text

MEMORANDUM OPINION AND ORDER

JOHN R. TUNHEIM, Chief Judge

For as long as people have lived-and worked in the Red River Valley that borders the States of North Dakota and Minnesota, the Red River of the North (“Red River”) has caused significant flooding problems for local communities. The parties to this case and the Court all recognize the need for permanent flood protection for the individuals residing in the Red Riyer Valley, especially the growing Fargo-Moorhead community. In addition to the serious flood-related issues, this case presents difficult and complex questions. regarding a.state’s ability to regulate border projects on major waterways when non-Federal actors undertake significant portions of a federally-approved project.

Here, Plaintiff Richland/Wilkin Joint Powers Authority (“JPA”) and Intervenor-Plaintiff Minnesota Department of Natural Resources (the “DNR”) allege that Defendant U.S. Army Corps of Engineers (the “Corps”) and Defendant-Intervenor Fargo-Moorhead Flood Diversion Board of Authority (the “Diversion Authority”) violated state and federal laws by signing a project partnership agreement and beginning construction on a permanent flood protection project without the Diversion Authority obtaining requisite permits from the State of Minnesota. The DNR and JPA seek a preliminary injunction to prevent the Corps and the Diversion Authority from continuing construction until the Diversion Authority obtains the allegedly requisite permits.

In response,, both the Corps and the Diversion Authority argue that a preliminary injunction is inappropriate. The Corps and the Diversion Authority further move to dismiss certain claims under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. After the hearing on these motions, JPA filed a motion for sanctions under Rule 37(c)(1) of the Federal Rules of Civil Procedure, seeking postponement of the Court’s ruling on the pending motions until the record is fully supplemented and supplemental briefing is completed.

The Court will grant the Diversion Authority’s limited motion to dismiss,- grant in part and deny in part the Corps’ motion to dismiss, grant the DNR’s and JPA’s motions for a preliminary injunction, and deny JPA’s sanctions motion.

BACKGROUND

I. THE PARTIES

JPA is a joint authority created by Rich-land County, North Dakota, and Wilkin County, Minnesota, pursuant to statutes in each state allowing their respective government units to jointly and cooperatively exercise power with other government units, even those in other states. (Pl. Fourth Am. Compl. (“JPA Compl.”) ¶¶ 2-6, April 3, 2017, Docket No. 419); see also Minn. Stat. § 471.69 (“Joint Exercise Powers”); N.D. Cent. Code § 54-40.3 (“Joint Powers Agreements”). Richland and Wil-kin Counties formed JPA to protect their citizens and their citizens’ property from flooding. (JPA Compl. ¶ 2.)

The DNR is a statutory agency of the State of Minnesota responsible for administering and enforcing Minnesota statutes and rules related to the state’s natural resources, including its navigable waters. (Compl. by the Minn. DNR (“DNR Compl.”) ¶ 6, Mar. 24, 2017, Docket No. 411.)

The Corps is a federal agency involved in the development of the permanent flood protection project at issue in this case. (Id. ¶ 8; JPA .Compl. ¶ 8.) Robert Speer, Assistant Secretary, of the Army for Civil Works, and Colonel Sam Calkins are employees of the' Corps. (DNR Compl. ¶¶ Sill; JPA Compl. ¶¶ 7, 9-10.)

The Diversion Authority is also a joint authority formed pursuant to Minnesota’s and North Dakota’s joint powers statutes. (DNR Compl. ¶ 12; JPA Compl. ¶ 11.) The Diversion Authority was formed by the following government units: the City of Fargo, North Dakota; Cass County, North Dakota; Cass County' Joint Water Resources District, North Dakota; the City of Moorhead, Minnesota; Clay County, Minnesota; and the Buffalo-Red River Watershed District, Minnesota. Richland/Wilkin Joint Powers Auth. v. U.S. Army Corps of Eng’rs (Dist. Court Order II), 176 F.Supp.3d 839, 842 (D. Minn. 2016). The’Corps designated the Diversion Authority as. the non-Federal sponsor of the permanent flood protection project at issue in this case, meaning the Diversion Authority is the local entity tasked with developing and managing the project. Id.

II. FACTUAL BACKGROUND

The Red, River originates at the confluence. of two tributaries, demarking the Minnesota-North Dakota border. Id. The broader, flat valley of the Red River was formed' over thousands of years as the lakebed of Glacial Lake Agassiz which receded slowly' as the ice melted to the north. Through this flat valley, the Red River flows northward, eventually emptying into Lake Winnipeg in Canada. Id. For as long as humans have lived along the Red River, the river has flooded. Id. In 2008, the Corps, along -with the cities of Fargo, North Dakota, and Moorhead, Minnesota, began a feasibility study to examine “alternatives ... to reduce flood risk in the entire Fargo-Moorhead Metropolitan area.” Id. After a major flood in 2009, the project gained momentum and eventually the Fargo-Moorhead Flood Risk Project (the “Project”) was developed. Id.; (DNR Compl. ¶ 67).

• As required by federal law, the Corps conducted an environmental review of the Project. (DNR Compl. ¶ 71.) In May 2010, the Corps published a Draft Environmental Impact Statement (“EIS”). Dist. Court Order II, 176 F.Supp.3d at 843-44. The Draft EIS discussed how the Corps had studied the benefits and costs of several potential options for flood control in the area. Id. In a later Supplemental Draft EIS, the Corps continued to refíne its plans, and to publish and describe the varying drawbacks and advantages of specific plans. Id. at 844. During this process, the DNR submitted multiple comment letters to the Corps regarding its concerns with the Project. (DNR Compl. ¶ 72.) The Corps acknowledged the DNR’s concerns during the process and “ensured the DNR that the Project required compliance with obligations imposed by Minnesota’s statutes and regulations.” (Id. ¶ 73.)

In July 2011 the Corps issued its Final Feasibility Report and Environmental Impact Statement (“FFREIS”) regarding the Project. (Id. ¶¶ 19, 71.) In section 3.14.4 for the FFREIS, .the Corps acknowledged that

[a]s part of implementing this project, the non-federal sponsors [were] required to obtain á [DNR] protected waters permit .... In order to obtain the necessary permits from the State of Minnesota, the non-federal sponsors [were required to] complete the scoping and review process required by the Minnesota Environmental Policy Act.... The construction contractors [were] responsible for acquiring all local licenses/permits required to comply with state and municipal laws, codes and regulations.

(DNR Compl. ¶ 74; accord JPA Compl. ¶ 34; Notice of Submission of Exs., Ex. F at 109, Feb. 12, 2015, Docket No. 162.)

The Corps ultimately selected the “locally preferred plan” (“LPP”) as its proposed action. Dist. Court Order II, 176 F.Supp.3d at 844. In December 2011, the Corps issued its Chiefs Report recommending the Project to Congress. (DNR Compl. ¶ 75; JPA Compl. ¶ 35; Notice of Submission of Exs., Ex. I (“Chiefs Report”).) The Chiefs Report endorsed the FFREIS and noted in several locations that the Project would comply with “Federal and State laws and regulations.” (DNR Compl. ¶ 75; JPA Compl. ¶ 35 n.2; Chiefs Report at 4, 6-7.)

The Assistant Secretary of the Army signed a Record of Decision (“ROD”) and forwarded the Corps’ relevant reports and studies to Congress in April 2012. Dist. Court Order II, 176 F.Supp.3d at 844. In 2014 Congress passed and the President signed the Water Resources Reform and Development Act of 2014 (“WRRDA-2014”), authorizing the Project. Id. at 845 (citing Pub. L. No. 113-121, § 7002(2)(4), 128 Stat. 1193 (2014)).

In February 2016 the Diversion Authority submitted its application for a Dam Safety and Public Waters Work Permit (“Permit”) to the DNR. (DNR Compl. ¶ 82.) In July 2016 the Corps and the Diversion Authority signed a project partnership agreement (“PPA”), “which set forth the rights and obligations of the Corps and the Diversion Authority pertaining to Project construction and operation.” (Id. ¶¶ 26, 91; JPA Compl. ¶ 46; Decl. of Michael Drysdale in Supp. of Mot. for Summ. J., Ex. G (“PPA”), Dec. 1, 2016, Docket No. 354.) The PPA divided construction responsibilities into two categories — “Federal Work” and “Non-Federal Work” — and primarily limited the “Non-Federal Work” to construction occurring on the North Dakota side of the Red River. (DNR Compl. ¶ 93; PPA at 2.) The Corps took responsibility for most of the work to occur in Minnesota, excluding certain “flood risk reduction projects undertaken in the F-M Metro Area.” (DNR Compl. ¶ 93.) The PPA further provided that the Diversion Authority “will operate, maintain, repair, rehabilitate, and replace the Project” after the parties complete construction. (Id. ¶ 94; PPA at 7.) At the time the Corps and the Diversion Authority signed the PPA, both- the DNR Commissioner and Minnesota’s Governor expressed concerns that the PPA was premature in light of thé Diversion Authority’s outstanding Permit application. (DNR Compl. ¶¶ 89, 92.)

The DNR denied the Permit in October 2016 finding the Project did “not adequately protect the public, health, safety and welfare of [Minnesota’s] citizens, [did] not represent the minimal impact solution, and [was] neither reasonable nor practical.” (Id. ¶ 83-84 & Ex. 1 (“DNR Permit Denial”) ¶¶ 123-137, 198; see also JPA Compl. ¶ 48.) The DNR further found the Project non-compliant with environmental requirements, floodplain requirements, and local and other land resources .management plans. (DNR Compl. ¶¶ 85-87; DNR Permit Denial ¶¶ 138-97.) The Diversion Authority requested a contested case hearing regarding the Permit denial. (DNR Compl. ¶ 88.)

In spite of the Permit denial, the -Corps and the Diversion Authority publicly “announced their intent to move forward with Project construction.” (Id. ¶¶ 96-97; JPA Compl. ¶ 49.) The DNR responded to this announcement by sending a letter “unequivocally” stating “that Minnesota permits are needed in order for either the Corps or the Diversion Authority to construct this project lawfully.” (DNR Compl. ¶ 99 & Ex. 2 at 1.) Both the DNR and JPA allege the Corps and the Diversion Authority have begun construction on the project without the required Permit. (Id. ¶ 100; JPA Compl. ¶ 50.)

III. PROCEDURAL HISTORY

JPA Sled its initial complaint on August 19, 2013, naming only the Corps and certain individuals employed by the Corps as defendants. (Compl., Aug. 19, 2013, Docket No. 1.) At first, JPA alleged that in developing and choosing the LPP, the Corp violated Minnesota law, Executive Order 11988 (“E.O. 11988”), and the National Environmental. Protection Act (“NEPA”). (First Am. Compl. ¶¶ 62-100, Oct. 22, 2013, Docket No. 14.) In November 2013 the Court granted the Diversion Authority leave to intervene. Then in May 2014 JPA amended its complaint, naming both the Corps and the Diversion Authority as defendants and limiting their allegations to violations of NEPA. (Second Am. Compl. 1 & ¶¶ 62-91, May 2, 2014, Docket No. 47.)

'After certain proceedings occurred in North Dakota state court regarding the OHB Ring Levee, JPA filed a Third-Amended Complaint against the Corps and the Diversion Authority alleging five counts, including violation of: NEPA (Counts I and II),'Minnesota Environmental Rights Act (“MERA”) (Count III), the Minnesota' Environmental Policy Act (“MEPA”) (Count IV), and state and local permitting laws (Count V), (Third Am. Compl. ¶¶ 88-139, Nov. 4, 2014, Docket No. 112.) Then JPA filed a motion for a preliminary injunction regarding the OHB Ring Levee. (Pl.’s Mot. for Prelim. Inj., Feb. 11, 2015, Docket No. 122.) In turn, the Corps and the Diversion Authority filed motions to dismiss the state and local claims in Counts III, IV, and V. (Corps’ Partial Mot. to Dismiss Third Am. Compl., Feb. 11, 2015, Docket No. 141; Diversion Auth.’s Mot. to Dismiss, Feb. 11, 2015, Docket No. 145.)

The Court ruled on thé motions together. The Court dismissed Counts III, IV, and V against the Corps because the Corps is not bound by the relevant state laws. Richland/Wilkin Joint Powers Auth. v. U.S. Army Corps of Eng’rs (Dist. Court Order I), No. 13-2262, 2015 WL 2251481, at *7-8 (D. Minn. May 13, 2015). The Court also dismissed Count V against the Diversion Authority because JPA had not shown that the relevant state and, local permitting laws were broad enough to support the requested relief. Id. at *13 n.7. But the Court declined to dismiss Counts III and IV — 'the MERA and MEPA claims — against the Diversion Authority. The Diversion Authority argued that those claims must be dismissed because any injunction based on Minnesota law prohibiting construction activities inside the borders of North Dakota would impermissibly extend the reach of Minnesota’s law outside the state’s borders. The Court disagreed, however, and found that such an injunction would not impinge on extraterritoriality or Dormant Commerce Clause principles because of the cross-border nature of the Project, as well as the fact that JPA and the Diversion Authority are partially composed of Minnesota governmental units subject to Minnesota law. Id. at *10-15. Finally, the Court granted JPA’s request for a preliminary injunction with respect to Counts III and IV against the Diversion Authority, ordering, that all construction on the OHB Ring Levee cease. Id. at *24-25. The Eighth Circuit affirmed the Court’s order on June 20, 2016. Richland/Wilkin Joint Powers Auth. v. U.S. Army Corps of Eng’rs (Appellate Court Order), 826 F.3d 1030, 1033-34 (8th Cir. 2016).

The parties filed cross-motions for summary judgment, regarding the Third Amended Complaint. The Court granted the Corps’ and the Diversion Authority’s motions for summary judgment on Counts I and II (NEPA) with prejudice. Dist. Court Order II, 176 F.Supp.3d at 852-53. The Court found the Corps had complied with NEPA and the Administrative Procedure Act (APA) in considering the environmental impacts of the Project. Id. at 847-852. The Court further found the NEPA claims against the Diversion Authority failed because the Diversion Authority “is not a federal entity, even if it is the sponsoring entity for the purposes of the diversion project.” Id. at 852. The Court dismissed the Corps from the ease; leaving only state-law claims against the Diversion Authority. Id. at 841, 852-53.

Following the DNR Permit Denial in October 2016, the DNR moved to intervene and the Court granted the motion. (Mem. Op. & Order at 6, Jan. 13, 2017, Docket No. 398.) JPA also moved to reinstate the Corps as an active defendant and to supplement the pleadings. Richland/Wilkin Joint Powers Auth. v. U.S. Army Corps of Eng’rs (Dist. Court Order III), No. 13-2262, 2017 WL 740994, at *1 (D. Minn. Feb. 24, 2017). The Court granted JPA’s motion and- directed both the DNR and JPA to file supplemental pleadings. Id. at *2-3. The DNR filed its Complaint and JPA filed its Fourth Amended Complaint on March 24, 2017. The DNR alleges four counts: pursuant to the APA, violation of 33 U.S.C. § 2232 against the Corps (Count I); pursuant to the APA, violation of WRRDA-2014 § 7002 against the Corps (Count II); violation of MERA against the Diversion Authority (Count III); and violation of Minn. Stat. chs. 103G and 103F against the Diversion Authority (Count IV). JPA also alleges four counts: violation of NE1PA against the Corps (Count I); violation of MERA against the Diversion Authority (Count II); violation of Minnesota permitting requirements against the. Diversion Authority (Count III); and violation of section 2232 and section 7002 against the Corps and the Diversion Authority (Count IV).

Both the DNR and JPA then filed motions for preliminary injunctions, seeking to enjoin the Corps, the Diversion Authority, or anyone in active concert with either party from continuing.construction on the Project until the DNR issues a Permit. The Corps and the Diversion- Authority, in turn, filed. motions to dismiss the DNR Complaint and Fourth Amended Complaint. The Corps moves to -dismiss all claims against it and the Diversion Authority moves to dismiss Count IV in JPA’s Fourth Amended Complaint.

The Court held a hearing regarding the four motions on July 18, 2017. (Min. Entry, July 18, 2017, Docket No. 497.) Two days after oral - argument, the Corps and the Diversion Authority allegedly disclosed certain documents relevant to the pending motions. (Mot. for Rule 37(c)(1) Sanctions & for Order Granting Leave to Suppl. Prelim. Inj. & Dispositive Mot. R. at 2, Aug. 4, 2017, Docket No. 505.) JPA filed a motion for sanctions under Rule 37(c)(1), requesting that the Court postpone, decision on the pending motions, allow supplementation of the record, and order supplemental briefing on the new information.

DISCUSSION

I. MOTIONS TO DISMISS

A. Standard of Review

The Corps and the Diversion Authority move to dismiss under Rules 12(b)(1) and 12(b)(6). “A motion to dismiss pursuant to Rule 12(b)(1) challenges the Court’s subject matter jurisdiction and requires the Court to examine whether it has authority to 'decide the claims.” Damon v. Groteboer, 937 F.Supp.2d 1048, 1063 (D. Minn. 2013). In deciding a motion under Rule 12(b)(1), the Court must first “distinguish between a ‘facial attack’ and a ‘factual attack.’” Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir.1990) (quoting Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980)). “In a facial challenge to jurisdiction, all of the factual allegations-concerning jurisdiction are presumed to be true and the motion is successful if the plaintiff fails to allege an element necessary for subject matter jurisdiction.” Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993). In other words, in a facial challenge, the Court “determine[s] whether the asserted jurisdictional basis is patently meritless by looking to the face of the complaint! ] and drawing all reasonable inferences in favor of the plaintiff.” Biscanin v. Merrill Lynch & Co., 407 F.3d 905, 907 (8th Cir. 2005) (citations omitted). In a factual attack, the court “inquires into" and resolves factual disputes,” Faibisch v. Univ. of Minn., 304 F.3d 797, 801 (8th Cir. 2002), and is free to “consider!] matters outside the pleadings,” Osborn, 918 F.2d at 729 n.6. The nonmoving party in a factual challenge “does not have the benefit of 12(b)(6) safeguards.” Id.

The Court construes the jurisdictional arguments to present a facial challenge. The Court finds no need to resolve any factual disputes to decide the jurisdictional questions and relies only on facts that are not in dispute and that are appropriate for consideration under a Rule 12(b)(6) motion. Degnan v. Sebelius, 959 F.Supp.2d 1190, 1193 (D. Minn. 2013) (limiting its analysis of a facial jurisdictional challenge to “the pleadings, matters of public record and materials necessarily embraced by the pleadings”), aff'd sub nom. Degnan v. Burwell, 765 F.3d 805 (8th Cir. 2014).

In reviewing a Rule 12(b)(6)'motion to dismiss, the Court considers all facts alleged in the complaint as true to determine if the complaint states a “claim to relief that is plausible on its face.” Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). To survive a motion to dismiss, a complaint must provide more than “ ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action.’ ” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Although the Court accepts the complaint’s factual allegations as true, it is “not bound to accept as true a legal conclusion couched as a-factual allegation.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility,”’ and therefore must be dismissed. Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955)).

B. The Corps’ Motion to Dismiss— Sovereign Immunity

The Corps first challenges all claims filed against the Corps on the grounds of sovereign immunity. A district court lacks jurisdiction to hear a case against the United States or its agents unless sovereign immunity has been expressly waived. FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (“Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.”); United States v. Kearns, 177 F.3d 706, 709 (8th Cir. 1999) (“The United States is immune from suit except where Congress has waived-that immunity.”).

The Corps argues the Court lacks jurisdiction because both the DNR and JPA failed to identify a final agency action subject to review under the APA. The APA provides for judicial review of a “final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. The APA “evinces Congress’ intention and understanding that judicial review should be widely available to challenge the actions of federal administrative officials.” Califano v. Sanders, 430 U.S. 99, 104, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). “When an agency action is final and, if final, appropriate for judicial review[,3 are issues that have arisen in a variety of federal agency contexts in the past one hundred years.” Hawkes Co. v. U.S. Army Corps of Eng’rs, 782 F.3d 994, 999 (8th Cir. 2015), aff'd, — U.S. —, 136 S.Ct. 1807, 195 L.Ed.2d 77 (2016). In Bennett v. Spear, the Supreme Court set forth a two-part test for determining whether an agency action is “final”: (1) “the action must mark the ‘consummation’ of the agency’s decisionmaking process — it must not be of a merely tentative or interlocutory nature”; and (2) “the action must be one by which ‘rights or obligations have been determined,’ or from which ‘legal consequences will -flow.’ ” 520 U.S. 154, 177-78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (citations omitted).

The DNR and JPA both argue the PPA is a final agency action'subject to review under the APA. They argue the PPA satisfies the Bennett test because the PPA is a binding agreement that determines the rights and obligations of the Corps and the Diversion Authority for completion of the Project. In response, the Corps argues the PPA is not a final agency action because it does not mark the consummation of the agency’s decision-making process. Instead, says the Corps, the PPA is a, step in the process of implementing final agency actions already taken — the ROD and the Chiefs Report.'

It is certainly true that the performance and/or implementation of a project is generally not considered “an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act” as required by the APA. See, e.g., Vill. of Bald Head Island v. U.S. Army Corps of Eng’rs, 714 F.3d 186, 193 (4th Cir. 2013) (quoting APA, 5 U.S.C. § 551(13)); Wild Fish Conservancy v. Jewell, 730 F.3d 791, 800 (9th Cir. 2013). But entering into the PPA is not necessarily implementation.

In Louisiana State v. U.S. Army Corps of Engineers, the Fifth Circuit addressed the issue of whether a Deauthorization Report sent to Congress or an agreement later signed by Louisiana and the Corps were final agency actions. 834 F.3d 574, 581-85 (5th Cir. 2016). The Fifth Circuit held that the Deauthorization Report was not a final agency action, in part because the recommendation to Congress noted that it was' “subject to the non-Federal sponsor executing an agreement with the Department of the Army prior to the Federal Government initiating construction o the closure structure.” Id. at 582. Thus, said the Fifth Circuit, the Deauthorization Report “anticipated the necessity of further agency action before the ... project [could] be implemented.” Id. In contrast, the Fifth Circuit found an agreement entered between Louisiana and the Corps was the “final agency action” because it was a “binding agreement .,. that clearly set[ ] out the cost allocation for the ... project.” Id. at 583. And, as a binding agreement with legal consequences, the agreement “consummat[ed] the agency’s decision-making process.” Id.

Here, while complaining about actions after Minnesota denied the Permit, both the DNR and JPA set forth allegations that the PPA is a final agency action and that the Corps acted arbitrarily and capriciously when it entered into the PPA prior, to the Diversion Authority securing the Permit, (See DNR Compl. ¶ 26. (“Federal funding ... was contingent on the execution of a [PPA] and a finding by the Corps that all outstanding regulatory issues facing the project would likely be resolved ....”); id. ¶ 92 (“[Sjigning the PPA was premature and inconsistent with the guidance from the OMB when allocating Project funding.”); id. ¶¶ 107, 118 (signing the PPA “constituted final agency action”); id. ¶¶ 109, 120 (signing the PPA “[was] arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law”); JPA Compl. ¶46 (“The [Corps’] actions, [signing the PPA] repre-sente] the consummation of the agency’s decision-making process and it constitutes an action from which rights or obligations have been determined, or from which legal consequences will flow. These actions were outside the scope of the authority granted by [WRRDA-2014] and were arbitrary and capricious”).)

Like in Louisiana, the ROD and Chiefs Report are not the final agency action for the DNR’s and JPA’s claims because the ROD and Chiefs Report specifically informed Congress, that in order to implement the Project “the non-Federal sponsors [had to] agree” to certain requirements “prior to project implementation,” including compliance “with all applicable Federal and State laws and regulations.” (Chiefs Report at 4, 7 (emphasis added).) Thus, the ROD and Chiefs Report “anticipated the necessity of further agency action before” the Project could be implemented. Louisiana, 834 F.3d at 582.

Instead, applying Bennett, the PPA is the final agency action. First, the PPA consummates the Corps’ decision-making process in that “it is a binding agreement between the Corps and [the Diversion Authority] that clearly sets out” the rights and responsibilities for both the Corps and the Diversion Authority pertaining to Project .construction and operation. Id. at 853; (see also DNR Compl. ¶ 91; JPA Compl. ¶ 46; PPA at 3-15). Further, entering into the PPA “was. an act that, by its very nature, determined rights and obligations and had legal consequences, which is precisely what contracts do.” Alabama v. U.S. Army Corps of Eng’rs, 382 F.Supp.2d 1301, 1324 (N.D. Ala. 2005).

For these reasons, under the APA, the Court has jurisdiction to hear the DNR’s and JPA’s claims against the Corps and the Court will deny the Corps’ Motion to Dismiss Counts I and II in the DNR’s Complaint and Count IV in JPA’s Complaint.

C. The Corps’ Motion to Dismiss-Prudential Standing

The Corps also argues all of the WRRDA-2014 claims fail because the DNR and JPA lack prudential standing. “The Supreme Court has recognized prudential requirements for standing, including ‘that a plaintiffs grievance must arguably fall within the zone of interests protected or regulated by the statutory provision. ... invoked in the suit.” Nat’l Wildlife Fed’n v. Westphal, 116 F.Supp.2d 49, 53 (D.D.C. 2000) (quoting Bennett, 520 U.S. at 162, 117 S.Ct. 1154) (interpreting a previous version of WRRDA).

Generally, the zone of interests test is “generous and relatively undemanding.” Id. “[T]here need be no indication of congressional -.purpose to benefit the wouldvbe plaintiff.” Nat’l Credit Union Admin. v. First Nat’l Bank & Tr. Co., 522 U.S. 479, 491, 118 S.Ct. 927, 140 L.Ed.2d 1 (1998) (quoting Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399-400, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987)). Instead, the test only requires that “the interest sought to be protected by the complainant is arguably within the zone of interests to be protected by the statute.” Id. at 492, 118 S.Ct. 927 (quoting Ass’n of Data Processing Serv. Orgs., 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970)). But where a’ plaintiff “is not itself the subject of the contested regulatory action, the test denies a right of review if the plaintiffs, interests are so marginally related to or inconsistent with the purposes implicit, in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” Clarke, 479 U.S. at 399, 107 S.Ct. 750; see also Rosebud Sioux Tribe v. McDivitt, 286 F.3d 1031, 1036 (8th Cir. 2002). “Whether a plaintiffs interest is ‘arguably ... protected ... by the statute’ within the meaning of the zone-of-interests test is to be determined not by reference to the overall purpose of the Act in question ... but by reference to the particular provision of law upon which the plaintiff relies.” Bennett, 520 U.S. at 175-76, 117 S.Ct. 1154.

Here, the. DNR and JPA are within the zone of interests that WRRDA-2014 protects. Numerous provisions of WRRDA-2014 require compliance with state law. See WRRDA-2014 § 7002 (authorizing the Project to be carried out “subject to the conditiohs[ ] described in the respective reports”); Chiefs Report at 7 (requiring compliance “with all applicable ... State laws and regulations”); 33 U.S.C. § 2232(b)(2) (“Before carrying out a water resources development project, or separable element thereof, under this section, a non-Federal interest shall ... obtain any permit or approval required in connection with the project or separable element under Federal or State law .... ”): Requiring state permits is evidence that when enacting WRRDA-2014, Congress had more in mind that just making project funding easier for non-Federal entities. In fact, .by requiring state permits, Congress reiterated its-'consistent view that flood control projects relating to navigable waters must be completed in “cooperation with States, their political subdivisions, and localities thereof.” See 33 U.S.C. § 701a (emphasis added). Thus, the Court finds the DNR and JPA are within the zone of interests meant to be protected by provisions of WRRDA-2014'requiring compliance with state law, and the. Court will deny the Corps’ motion to dismiss for lack of prudential standing.

D. The Corps’ Motion to Dismiss — 33 U.S.C. § 2232

The Corps next argues the Court should dismiss Count I in the DNR’s Complaint and part of Count IV in JPA’s Complaint for failing to state a claim upon which relief may be granted. The Corps asserts that section 2232 does not apply to the Project.

To address the Corps’ argument, the Court must interpret the statute. The Court begins with the statute’s plain language. Leocal v. Ashcroft, 543 U.S. 1, 8, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004). “Courts resort to legislative history and other sources to guide their interpretation only if the meaning of the statute is ambiguous.” United States v. Plummer Excavating, Inc., 65 F.Supp.2d 1013, 1015 (D. Minn. 1999).

The Corps argues section 2232 does not apply because the section only applies when non-Federal sponsors carry out a “water resource development project” independently. But nowhere in the language of the statute did Congress express this limitation. Congress entitled section 2232 “Construction of water resources development projects by non-Federal interests” and defined “water resources development project” broadly, to include “a project recommendation that results from ... a final feasibility study for water resources development and conservation and other purposes that is specifically authorized by Congress to be carried out by the Secretary.” The parties do not dispute that this definition describes the Project.

Congress then expressly laid out the authority for a non-Federal interest to “carry out a water resources development project, or a separable element thereof’ on the condition that “[b]efore carrying out” a project the non-Federal interest “obtain any permit or approval required in connection with the project or separable element under Federal or State law.” 33 U.S.C. § 2232(b) (emphasis added). Nowhere in section 2232 did Congress provide that the authority to carry out a water resource development project under section 2232 applies only when the non-Federal interest carries out the project independently. Consequently, what the Corps asks is not a construction of the statute, but, in effect, a limitation on the statute’s applicability that Congress allegedly omitted by inadvertence. King v. IRS, 688 F.2d 488, 491 (7th Cir. 1982) (“[Cjourts have no right, in the guise of construction of an act, to either add words to or eliminate words from the language used by congress.” (quoting De Soto Sec. Co. v. Comm’r, 235 F.2d 409, 411 (7th Cir. 1956))). Supplying an omission, as the Corps requests, “transcends the judicial function,” Nichols v. United States, — U.S. —, 136 S.Ct. 1113, 1118, 194 L.Ed.2d 324 (2016) (quoting Iselin v. United States, 270 U.S. 245, 251, 46 S.Ct. 248, 70 L.Ed. 566 (1926)), and the Court will not add such a limitation here.

Further, while located in the “Credit and Reimbursement” subsection, Congress expressly requires the Corps to “monitor and audit any water resources development project, or separable element ... constructed by a non-Federal interest under this section to ensure that ... the construction is carried out in compliance with the requirements of this section.” 33 U.S.C. § 2232(d)(4) (emphasis added).

As set forth above, the statute broadly defines the phrase “water resources development project” to include the Project at issue here. Id. § 2232(a)(3). And numerous places in the statute use the phrase “under this section” or similar language to refer to all of section 2232. See, e.g., id. § 2232(a) (“In this section”); id. § 2232(b)(2) (“under this section”); id. § 2232(d)(1), (4), (5) (“under this section”); id. § 2232(e) (“under this section”). Further, section 2232 particularly identifies subsections when Congress deemed it necessary, see, e.g., id. § 2232(c) (“undertaken under subsection (b)”); id. § 2232(d)(1)(B) (“identified under subsection(b)(1)(B)”); id. § 2232(d)(5) (“under this subsection”), eliciting Congress’ cognizance of the difference between the word “section” and “subsection.” Thus, based on the plain language of the statute, the monitoring requirement in section 2232(d)(4) includes a duty to monitor projects carried out under the authority delineated in section 2232(b).

The Corps’ own assertions during the process of approving the Project — which were first disclosed in documents provided in discovery after the hearing on this matter — appear to support the Court’s interpretation of section 2232. In a January 2016 memorandum, the Corps indicated its intention that the Project

be constructed using a “split delivery” concept relying on [section 2232] .... [the Diversion Authority would] be responsible for construction of one separable element, consisting of the diversion channel and associated structures, and the [Corps would] be responsible for construction of the other separable element, consisting of the southern embankment and all non-integrated mitigation.

(Decl. of Gerald Von Korff (“Von Korff Decl.”), Ex. 1 at 1, Aug. 4, 2017, Docket No. 508; see also id., Ex. 4 at 1 (indicating the “Split Delivery” concept “[u]tilizes existing authorities”- including section 2232); id., Ex. 5 at 1-2 (discussing “Split Delivery” construction and the “separable elements” of the Project).) And in a series of draft PPAs, the Corps and the Diversion Authority included the following language:

WHEREAS, Section 204 of the Water Resources Development Act of 1986, Public Law 99-662, as amended by Section 1014(b) of [WRRDA-2014], allows a non-Federal interest to carry out a water, resources development project, or a separable element thereof,- in accordance with a plan approved by the Secretary of the Army and any conditions-the Secretary, of the Army may required]

(Von Korff Decl. ¶ 3 & Ex. 2 at 2-3; see also Decl. of Colin O’Donovan (“O’Donovan Decl.”), Ex. P at 3-4, 8-9, Aug. 18, 2017, Docket No. 522.)

These documents appear to indicate that the Corps intended the Project to fall under section 2232, in that the Diversion Authority is “responsible for construction of one separable element, consisting of the diversion channel and associated structures.” (Von Korff, Ex. 1 at 1; see also PPA at 2 (indicating the non-federal work includes “an approximately 30 mile ... diversion channel and associated features; the channel outlet; the Rush and Lower Rush River hydraulic structures; the Maple River aqueduct; the Sheyenne River aqueduct; the inflow design flood levee; associated railroad bridges; the in-town levees and the [OHB Ring Levee]; recreation features; environmental mitigation features located within the diversion channel and associated structures for the diversion. channel”).) And the documents suggest that section 2232 was the basis for the apportionment of Project obligations under the PPA. (See PPA.at 2; Von Korf Decl. Ex. 1 at 1; O’Donovan Decl., Exs. O, R-T.)

The Court finds section 2232 unambiguously applies to all “water resources development project^]” as defined in section 2232(a), including the Project at issue in this case. Consequently, the “Authority” provisions and conditions in section 2232(b) apply to the Diversion Authority as it is the “non-Federal sponsor” carrying out the Project.- And the Corps has an independent mandate to monitor and audit the Diversion Authority -as it carries out the Project to ensure compliance with section 2232. Id. § 2232(d)(4). Therefore, the Court will deny the Corps’ Rule 12(b)(6) motion to dismiss Count I in the DNR’s Complaint and part of Count IV in JPA’s Complaint.

E. The Corps’ Motion to Dismiss— NEPA

The Corps also moves to dismiss JPA’s NEPA claim on the grounds that JPA failed to allege facts supporting its claim- that the Corps is required to file- a supplemental environmental impact statement (“SEIS”) in light of the DNR’s denial of the Permit. Under NEPA, the Corps is required to submit an SEIS if: (1) “[t]he agency makes substantial changes in the proposed action that are relevant to environmental concerns”; or (2) “[tjhere are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” 40 C.F;R. § 1502.9(c)(1)(ii).

The Supreme Court has held “[a]n agency need not supplement an EIS every time new information comes to light after the EIS is finalized.” Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 373, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). Such a requirement “would render agency decisionmak-ing intractable, always awaiting updated information only to find the new information outdated by the time a decision is made.” Id.

[Tjhe decision whether to prepare [an SEIS] is similar to the decision whether to prepare an EIS in the first instance: If there remains “major Federal ac-tio[n]”‘ to occur, and if the new information is sufficient to show that the remaining action will “affecftj the quality of the human environment” in a significant manner or tó a significant extent not already considered, a supplemental EIS must be prepared.

Id. at 374, 109 S.Ct. 1851 (emphasis added) (quoting 42 U.S.C. § 4332(2)(C)).

Here, the Corps already considered the DNR’s concerns about the Project and the possibility that the Permit may be denied. See Dist. Court Order II, 176 F.Supp.3d at 850 (“[Tjhe Corps undisputedly did respond to numerous comments made by the State- of -Minnesota.”); (DNR Compl. ¶¶ 73-75 (stating that the Corps acknowledge the permit requirement in the FFREIS)). JPA provided the Court with no citations to comments that the DNR made that the Corps left unaddressed. (DNR Compl. ¶¶ 71-75 (stating the DNR informed the Corps that the Diversion Authority would need a permit).) In fact, at the hearing in this matter, JPA admitted that it relies solely on “[tjhe permit denial and the response of the jurisdictions” to the Permit denial to support its NEPA claim. The Corps “already considered” the impact of the concerns raised by the DNR and the impact a Permit denial would have on the Project. See Marsh, 490 U.S. at 374, 109 S.Ct. 1851 (emphasis added). Therefore, JPA fails to allege a “major federal action” necessitating an SEIS and the Court will grant the Corps’ motion to dismiss JPA’s NEPA claim- (Count I).

F. The Diversion Authority’s Motion to Dismiss

The Diversion Authority separately moves to dismiss Count IV in JPA’s Complaint against the Diversion Authority for lack of subject matter jurisdiction. The Diversion Authority asserts that Count IV fails because neither section 2232 nor section 7002 provides a private right of action.

JPA does not contest that WRRDA-2014 does not contain ah express private right of action or that the APA would provide jurisdiction against the Diversion Authority. Thus, whether the Court should grant the Diversion Authority’s motion turns on whether WRRDA-2014 contains an implied private right of action.

To analyze whether a statute contains an implied private right of action, the Court must analyze the following four factors, as described in Cort v. Ash:

(1) whether the plaintiff is a member of the class of persons for whose benefit the statute was enacted; (2) whether the legislature has implicitly or explicitly manifested any intent to create or deny such a remedy; (3) whether it is consistent with the underlying purpose of the legislative scheme to imply such a remedy; and (4) whether the cause of action is traditionally a creature of state law such that inferring a cause of action based solely on federal law would be inappropriate.

McCabe v. City of Eureka, 664 F.2d 680, 681-82 (8th Cir. 1981) (citing Cort v. Ash, 422 U.S. 66, 95, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975)). Because “[t]he language of the statute and its legislative history do not suggest that [the statute] was intended to create federal rights for the especial benefit of a class of persons,” the Court finds “it is unnecessary to inquire” beyond the first two factors. California v. Sierra Club, 451 U.S. 287, 294, 101 S.Ct. 1775, 68 L.Ed.2d 101 (1981).

The Court must first inquire into whether JPA is “ ‘one of the class for whose especial benefit the statute was enacted,’— that is, [whether] the statute create[s] a federal right in favor of’ JPA. Cort, 422 U.S. at 78, 95 S.Ct. 2080 (quoting Tex. & Pac. Ry. Co. v. Rigsby, 241 U.S. 33, 39, 36 S.Ct. 482, 60 L.Ed. 874 (1916)). The Supreme Court has explained that “[t]he question is not simply who would benefit from the Act, but whether Congress intended to confer federal rights upon those beneficiaries.’” Sierra Club, 451 U.S. at 294, 101 S.Ct. 1775.

In New Jersey Department of Environmental Protection & Energy v. Long Island Power Authority, the Third Circuit held “the Coastal Zone Management Act requirement conditioning certain federal licenses and permits on [a] showing that proposed activities complied] with the state’s coastal management program” did not make New Jersey an especial beneficiary creating right of action against private defendants. 30 F.3d 403, 418-19, 421-22 (3d. Cir. 1994). The court found that even though the statute benefited New Jersey because of “enhanced authority and healthier coastal zones,” the ultimate goal of the statute was to “protect[] the nation’s coastal zones.” Id. at 422. Thus, the statute did not translate into “a right in favor” of New Jersey to enforce the federal statute against private defendants.

Here, WRRDA-2014 similarly provides that projects carried out under the statute must comply with state law and, as a result, Minnesota and local government entities benefit from “enhanced authority” and more cooperative projects. But the ultimate goal of WRRDA-2014 — as expressed by Congress — was to “provide for improvements to the rivers and harbors of the United States, to provide for the conservation and development of water and related resources, and for other purposes.” WTtRDA-2014, Purpose Statement. Thus, the statute itself was meant to provide improvements to the rivers and harbors of the United States — not to provide special benefits to state and local entities to enforce the federal statute against non-Federal sponsors.

The Court must next assess WRRDA-2014 to determine whether there is “any indication of legislative intent, explicit or implicit, either to create [the requested] remedy or to deny [it].” Cort, 422 U.S. at 78, 95 S.Ct. 2080. Here, JPA relies on the history of federal statutes relating to water resource projects and the fact that Congress has carefully considered the role of state sovereignty when enacting the statutes. Thus, JPA argues Congress intended to provide local governments a right of action to ensure compliance with state regulations in order to protect state sovereignty.

But courts have held that broad federal statutes focusing on bringing states into a federal plan “do not represent an open-ended grant of enforcement authority to the states.” Long Island Power Auth., 30 F.3d at 423. Instead “[a] general statement of intent to enhance state authority, given effect through explicit measures in the statute itself, cannot be taken to indicate an intent also to create rights of actions that the statute fails to mention.” Id.

For these reasons, the Court finds WRRDA-2014 does not contain a private right of action and will grant the Diversion Authority’s motion to dismiss Count IV in JPA’s Complaint against the Diversion Authority.

II. MOTIONS FOR PRELIMINARY INJUNCTIONS

A. Standard of Review

“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). The Court must consider four factors in determining whether to grant preliminary injunctive relief: (1) the probability that the moving party will succeed on the merits; (2) the threat of irreparable harm to the moving party; (3) the balance of harms as between the parties; and (4) the public interest. S.J.W. ex rel. Wilson v. Lee’s Summit R-7 Sch. Dist., 696 F.3d 771, 776 (8th Cir. 2012) (citing Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981)). “At base, the question is whether the balance of equities so favors the movant that justice requires the court to intervene to preserve the status quo until the merits are determined.” Dataphase, 640 F.2d at 113. The party requesting injunctive relief bears the complete burden for showing the above factors. Watkins Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir. 2003).

B. Likelihood of Success

“While no single Dataphase factor is determinative, the likelihood of success on the merits is predominant in the preliminary injunction analysis.” Dist. Court Order I, 2015 WL 2251481, at *17. The movant must show that it has a “fair chance of prevailing” on its claims. Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724, 732 (8th Cir. 2008) (en banc). Likelihood of success does not, however, require the moving party to “prove a greater than fifty per cent likelihood that [it] will prevail on the merits.” PCTV Gold, Inc. v. SpeedNet, LLC, 508 F.3d 1137, 1143 (8th Cir. 2007) (quoting Dataphase, 640 F.2d at 113). In considering whether, a movant, is likely to prevail on the merits, “a court does not decide whether the movant will ultimately win.” Id. Where, as here, a plaintiff alleges several violations of state law and seeks one type of injunctive relief that is tied to all of the alleged statutory violations, it “need only establish a likelihood of succeeding on the merits of any one of those claims in order to satisfy this part of the preliminary injunction standard.” Am. Rivers v. U.S. Army Corps of Eng’rs, 271 F.Supp.2d 230, 250 (D.D.C. 2003).

1. Claims Against the Corps

Both the DNR and JPA argue that their claims based on WRRDA-2014 are likely to succeed on the merits because the Corps’ decision to sign the PPA prior to requiring the Diversion Authority to obtain the Permit was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). While the Court’s factual inquiry must be “searching and careful,” the scope of review is quite narrow; the Court is “not empowered to substitute its [own] judgment for that.of the agency.” Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). The Court should simply determine “whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Downer v. U.S. ex rel. U.S. Dep’t of Agric. & Soil Conservation, 97 F.3d 999, 1002 (8th Cir.1996) (quoting Marsh, 490 U.S. at 378, 109 S.Ct. 1851).

a. Section 2232 Claim

Here, the DNR and JPA have alleged entering into the PPA was an arbitrary and capricious action or was not in accordance with the law because it was “premature” to sign the PPA prior to the Diversion Authority obtaining permits allegedly required by WRRDA-2014. (DNR Compl. ¶ 92 (“[Signing the PPA was premature and inconsistent with the guidance from the OMB when allocating Project funding”); id. ¶¶ 109, 120 (explaining the action in paragraph 92 “[was] arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law”); JPA Compl. ¶ 46 (“These actions were outside the scope of the authority granted by [WRRDA-2014] and were arbitrary and capricious”).) .To support this claim, the DNR and JPA rely primarily on uncontested facts.

The record reflects that the Corps and the Diversion Authority signed the PPA on July 11, 2016. (PPA at 15.) The PPA “set forth the rights and obligations of the Corps and the Diversion Authority pertaining to Project construction and operation.” (DNR Compl. ¶¶ 26, 91; JPA Compl. ¶46.) The PPA divided construction responsibility into two categories: “Federal Work” and “Non-Federal Work” and limited the “Non-Federal Work” to construction occurring primarily on the North Dakota side of the Red River. (PPA at 2.) And the PPA opened the door for both the Corps and the Diversion Authority to begin construction of the Project. (Chiefs Report at 5, 8 (indicating the Corps and the Diversion Authority must enter an agreement before construction begins).)

Before July 11, 2016, the DNR made clear to the Corps. that Minnesota law required the Diversion Authority to obtain permits prior to beginning construction of the Project. (Deck of Gerald Von Korff, Ex. 4 at 17-18, Nov. 30, 2016, Docket No. 347 (DNR June 29, 2016 ROD stating the Permit was required); id., Ex. 6 at 1 (letter from DNR informing the Corps that the “state’s permitting process [was] ongoing” and that the completion of the environmental review process “should not, by any means, be interpreted as a project approval or as an indication that state permits are likely to be forthcoming” because the Project “presents significant issues under Minnesota’s regulatory system”).) And the DNR implicitly warned the Corps that it should not sign the PPA because outstanding regulatory issues could affect construction of the: project. (Id., Ex. 6 at 1.) In spite of these warnings, the Corps executed the PPA.

Based upon these uncontested facts, the DNR and JPA have a fair chance of prevailing on their section 2232 ’claim. As set forth above, section 2232(b)(2)(a) requires that “[b]efore” the Diversion Authority carries .out the Project, it must “obtain any permit or approval required in connection with the project ... under Federal or State law.” (Emphasis added). The statute further requires the Corps to “monitor and audit” the Project to ensure .-“the construction is carried out in compliance with the requirements” of section 2232. 33 U.S.C. § 2232(d)(4). Here, the DNR and JPA present evidence the DNR informed the Corps that regulatory issues regarding the Diversion Authority were outstanding and,' in spite of this warning, the Corps signed the PPA allowing the Diversion Authority to..begin,construction of the Project. Under this set of facts, the DNR and .JPA have shown a likelihood of success on their claim that signing the PPA was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A), because the Corps’ actions violated section 2232.

The Corps disagrees with this reasoning, presenting evidence that “[m]ost construction permits for the [P]roject .,. cannot be obtained prior to executing a PPA because near-final to final detailed designs must be completed in order to apply.” (Deck of Terryl L. Williams (“Williams Deck”) ¶ 9, May 31, 2017, Docket No. 468.) But section 2232(b)(2)(A) plainly requires that the Diversion Authority “obtain any permit” required bylaw “[b]efdre carry-mg out” the Project. And section 2232(d)(4) mandates that the Corps ensure “construction is carried out in compliance with [that] requirement ].”

The Corps next argues the DNR failed to show a likelihood of success on the merits of the 2232 claim because the Diversion Authority is not required to get a permit for work the Diversion Authority does not complete. But the Eighth Circuit held that “laws governing a project that crosses the border between two states are bound to have some extraterritorial effect”; if the Diversion Authority was “permitted to begin building the diversion project in North Dakota, and could only be stopped once it reached the Minnesota border, the practical effect would be that for interstate projects, the state with more lenient laws would always control.” Appellate Court Order, 826 F.3d at 1042 (quoting Dist. Court Order I, 2015 WL 2251481, at *15). Thus the Eighth Circuit affirmed the Court’s earlier finding that the requirements of Minnesota law applied to the Diversion Authority, even when it only completed work outside the state, because “Minnesota has an interest in regulating the larger diversion project and its parts.” Id.

b. Section 7002 Claim

The DNR and JPA also argue they are likely to succeed on their section 7002 claim. Section 7002 provides:

The following final feasibility studies for water resource development and conservation ... are authorized to be carried out by the [Corps] substantially in accordance with the plan, and subject to the conditions, described in the respective reports designated in this section.

The report specific to the Project that is designated under section 7002 is the Chiefs Report dated December 19, 2011. The Chiefs Report endorsed the FFREIS where the Corps acknowledged that

[a]s part of implementing this project, the non-federal sponsors [were] required to obtain a [DNR] protected waters permit .... In order to obtain the necessary permits from the state of Minnesota, the non-federal sponsors [were required to] complete the scoping and review process required by the Minnesota Environmental Policy Act.... The construction contractors [were] responsible for acquiring all local licenses/permits required to comply with state and municipal laws, codes and regulations.

(DNR Compl. ¶ 74; JPA Compl. ¶ 34; accord Notice of Submission of Exs., Ex. F.) And the Chiefs Report noted in several locations that the Project would comply with “Federal and State laws and regulations.” (Chiefs Report at 4. 7.)

As set forth above, the record shows the DNR informed the Corps that regulatory issues regarding the Diversion Authority were outstanding and, in spite of this warning, the Corps signed the PPA allowing the Diversion Authority to begin construction of the Project. Under this set of facts, the DNR and JPA have shown “fair chance of prevailing,” Planned Parenthood, 530 F.3d at 732, on their section 7002 claim on the ground that the Corps’ decision to sign the PPA in spite of outstanding regulatory issues was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A).

The Corps argues the DNR is not likely to succeed on the merits because the Chiefs Report only requires compliance with “State laws and regulations” and, by only completing work in North Dakota, the Diversion Authority does not need a Minnesota permit. As stated above, the Eighth Circuit held “laws governing a project that crosses the border between two states are bound to have some extraterritorial effect;” and if the Diversion Authority was “permitted to begin building the diversion project in North Dakota, and could only be stopped once it reached the Minnesota border, the practical effect would be that for interstate projects, the state with more lenient laws would always control.” Appellate Court Order, 826 F.3d at 1042. Applying this reasoning, the Diversion Authority cannot circumvent its obligation to obtain Minnesota permits simply by completing work in North Dakota when the parties agree the work in North Dakota will impact Minnesota and the Red River.

The Corps also argues the DNR and JPA are not likely to succeed on the merits of the section 7002 claim because the statute only, requires the Corps to carry out the Project “substantially in accordance with the plan.” WRRDA-2014 § 7002. But section 7002 fully states that the Project is “authorized to be carried out ... substantially in accordance with the plan, and subject to the conditions, described in the respective reports.” Id. (emphasis added). Reading the plain language of the statute, the word “and” is a coordinating conjunction that is used to “link[] independent ideas.” Bruesewitz v. Wyeth LLC, 562 U.S. 223, 236, 131 S.Ct. 1068, 179 L.Ed.2d 1 (2011). When terms are connected by a conjunctive term in a statute, “courts normally interpret the statute as requiring satisfaction of both of the conjunctive terms.” United States v. Ganadonegro, 854 F.Supp.2d 1068, 1081 (D.N.M. 2012) (citing Bruesewitz, 562 U.S. at 236, 131 S.Ct. 1068).

Hei’e, the use of the word “and” reveals two separate requirements in section 7002: the Corps must carry out the Project (1) “substantially in accordance with the plan ... described in the [Chiefs Report]”; and (2) “subject to the conditions[] described in the [Chiefs Report].” 'WRRDA-2014 § 7002. Reviewing the Chiefs Report, the Project recommendation was “subject to the condition[ ],” id., that non-Federal sponsors would comply “with all applicable Federal and State laws and regulations,” (Chiefs Report at 4, 7). Thus, while the Corps has some discretion regarding the specifics of the Project itself, Congress did not provide for such discretion with regard to the conditions set forth in the Chiefs Report. Because compliance with state laws and regulations was plainly a condition set forth in the Chiefs Report, the Corps’ argument is unavailing.

For these reasons, the Court finds the DNR and JPA have shown a fair chance of prevailing on their claims against the Corps.

2. Claims Against the Diversion Authority

The DNR and JPA also assert that they have shown a fair chance of prevailing on their state-law claims against the Diversion Authority. The Diversion Authority challenges the DNR’s and JPA’s analysis on three grounds: Dormant Commerce Clause; preemption; and the merits,

a. Dormant Commerce Clause

The Diversion Authority first asserts that, even if the DNR and JPA were likely to succeed on the merits, the claims against the Diversion Authority are precluded by the Dormant Commerce Clause. The Court already decided this is