                              In the

United States Court of Appeals
                For the Seventh Circuit

No. 12-3187

H OOSIER E NVIRONMENTAL C OUNCIL and
C ITIZENS FOR A PPROPRIATE R URAL R OADS,

                                               Plaintiffs-Appellants,
                                  v.


U NITED S TATES A RMY C ORPS OF E NGINEERS, et al.,

                                              Defendants-Appellees,
                                 and

INDIANA D EPARTMENT OF T RANSPORTATION,

                                   Intervenor Defendant-Appellee.


              Appeal from the United States District Court
      for the Southern District of Indiana, Indianapolis Division.
       No. 1:11-cv-00202-LJM-DML—Larry J. McKinney, Judge.


     A RGUED F EBRUARY 25, 2013—D ECIDED JULY 16, 2013




  Before B AUER, P OSNER, and SYKES, Circuit Judges.
  P OSNER, Circuit Judge. This appeal requires us to con-
sider the scope of the duty imposed on the Army Corps of
Engineers by section 404 of the Clean Water Act, 33 U.S.C.
2                                                No. 12-3187

§ 1344, and its implementing regulations, to protect
wetlands that contain or are covered by waters of the
United States (and so are within federal jurisdiction)
from environmental degradation by—in this case—the
construction of a highway. Wetlands are environ-
mentally significant because they help recharge ground-
water sources, filter water, control flooding, and provide
a habitat for many animal and plant species, as do the
streams that carry water to wetlands, and are also of
concern in this case.
  Section 404(a) of the Act authorizes the Secretary of the
Army (in practice, the Army Corps of Engineers) to issue
permits “for the discharge of dredged or fill material into
the navigable waters” of the United States. 33 U.S.C.
§ 1344(a). Implementing regulations state that a permit
will be denied if the Corps finds that there is “a practicable
alternative to the proposed discharge which would
have less adverse impact on the aquatic ecosystem,”
40 C.F.R. § 230.10(a), or if the discharge “would be
contrary to the public interest.” 33 C.F.R. § 320.4(a)(1). The
terms we’ve italicized are the ones critical to this case.
  I-69 is an interstate highway (part of the federal inter-
state highway system) that when completed will run
from Canada to Mexico (and of course in the opposite
direction as well) through a number of states including
Indiana. At present, however, the highway consists of
disjointed segments. One of the breaks is between India-
napolis in central Indiana and Evansville in the extreme
southwestern corner of the state. A federal interstate
highway (I-70) runs between Indianapolis and Terre
No. 12-3187                                           3

Haute. A lesser federal highway, Route 41, runs between
Terre Haute and Evansville. As shown in the map
below, these two highways form the sides of an approxi-
mate right triangle. The direct route between India-
napolis and Evansville is the hypotenuse and thus
the shorter of the two routes—142 miles rather than 155
miles long. The roads on the direct route (the hypote-
nuse) tend to be narrow and crowded with truck traffic
and to experience an above-average incidence of traffic
accidents. The Federal Highway Administration and
the Indiana Department of Transportation (the latter
a defendant in this suit by environmental groups;
the other principal defendant is the Army Corps of Engi-
neers) decided that a worthwhile contribution to the
completion of I-69 would be to build an interstate high-
way on the hypotenuse. The highway would thus be a
segment of I-69. The circled area on the map indicates
a completed section of the new highway, section 3, that
is the immediate subject of this lawsuit.
4                                             No. 12-3187

          A LTERNATIVE R OUTES FOR I-69 FROM
             INDIANAPOLIS TO E VANSVILLE




  Environmentalists opposed building a highway on the
direct route on the ground that it would destroy wetlands,
disrupt forests, and also disrupt “karst” ecosystems,
No. 12-3187                                                5

unusual landscapes permeated by caves and other forma-
tions that provide rich habitats for wildlife, including such
endangered and threatened species as the Indiana bat
(endangered) and the bald eagle (threatened). See U.S. Fish
& Wildlife Service Midwest Region, “Karst Ecosystems,”
www.fws.gov/midwest/ecosystemconservation/karst.html
(visited July 1, 2013). Most of the environmental concerns
have been resolved, however; this case is concerned just
with the filling of wetlands and of stream crossings.
Filling stream crossings means placing gravel, rock, or dirt
in a stream in order to support a road that bridges the
stream or even blocks it, in which event however a
culvert can be built in order to conduct the stream under
the road. The Clean Water Act requires a permit to fill
streams that are waters of the United States—that is, that
are within federal jurisdiction, as the waters affected by
the highway are. The permit granted by the Corps allows
six streams in section 3 to be filled where the highway
crosses them, in addition to permitting the destruction
of wetlands. The two types of action—destroying wet-
lands and filling streams—are the actions challenged as
violations of the Clean Water Act. To simplify exposition,
we’ll ignore the streams.
  The plaintiffs advocate, in lieu of the new highway,
simply upgrading to federal interstate highway standards
the 88-mile stretch of Route 41 from Terre Haute to Evans-
ville. That would bring the entire Indianapolis-Evansville
route up to those standards. The environmental impact
would be slight because all that would be involved
would be upgrading an existing highway that occupies
only 57 percent (88/155 miles) of the indirect route. This
6                                             No. 12-3187

suggested alternative to the new highway would also
be $1 billion cheaper ($1 billion versus $2 billion).
  The federal and state highway authorities filed, as they
were required to do, Environmental Impact Statements,
which concluded that building a new interstate highway
on the direct route was preferable to upgrading the
indirect route. After a suit contending that the highway
would violate the National Environmental Protection
Act failed, Hoosier Environmental Council v. U.S. Dept. of
Transportation, No. 1:06-cv-1442-DFH-TAB, 2007 WL
4302642, at *1 (S.D. Ind. Dec. 10, 2007), the highway
authorities began addressing the exact location of the
highway within the direct route and the placement of
structures ancillary to the new highway, such as bridges
and culverts. The proposed highway was divided into six
sections. Sections 1 through 3 have been built; sections 4
through 6 have not yet been built though section 4 is
under construction. Section 3, a 26-mile stretch, is as we
said the immediate subject of this case. The grant of the
Clean Water Act permit for section 1 was not challenged.
The grant of the permit for section 2 was challenged, but
that case has been stayed to await the outcome of this
case. We don’t know the current status of challenges, if
any, to the other sections.
  In considering the permit application for section 3, the
Corps concentrated on the likely effect on wetlands (and
on stream crossings, but as we said we’re ignoring those
in the interest of simplicity) of the six bridges planned
to cross the new highway in that section. The Corps
concluded that the bridges wouldn’t violate the Clean
No. 12-3187                                               7

Water Act because no less environmentally damaging
alternative was practicable and this section of the high-
way was not contrary to the public interest. Damage to
wetlands would be modest and would be offset by the
creation of new wetlands, as would be required by the
Clean Water Act permit that the Corps would issue.
  The plaintiffs don’t disagree with the Corps’ conclusion
that the plan for section 3 of the highway minimizes
the wetland effects of that section. Their objection is to
the choice of the direct route (the hypotenuse), of which
section 3 is just one slice, over the indirect one. They
argue that the Corps failed to consider whether the
direct route as a whole, rather than one section of it,
would be in the public interest and whether the indirect
route (upgraded as we explained earlier) would be a
practicable alternative. But the district court found the
Corps’ analysis adequate to justify the grant of the
permit and so awarded summary judgment to the de-
fendants, precipitating this appeal.
  The Indiana Department of Transportation argues
that the case is moot. Section 3 of I-69 has been built, was
opened to traffic last November, and is now in full use.
It is too late, therefore, the Department argues, for a
court to provide the relief sought by the plaintiffs. That
is not correct. A case is moot only if “it is impossible for
a court to grant any effectual relief whatever to the pre-
vailing party,” Decker v. Northwest Environmental Defense
Center, 133 S. Ct. 1326, 1335 (2013) (emphasis added),
quoting Knox v. Service Employees Int’l Union, Local 1000,
132 S. Ct. 2277, 2287 (2012), as when a case is settled. One
8                                                 No. 12-3187

possibility for relief in this case would be an injunction
requiring the defendants to rip up section 3 and re-
create the wetlands it has destroyed. See, e.g., Hillsdale
Environmental Loss Prevention, Inc. v. U.S. Army Corps of
Engineers, 702 F.3d 1156, 1166-67 (10th Cir. 2012); United
States v. Bailey, 571 F.3d 791, 804-06 (8th Cir. 2009); Mark C.
Rouvalis, Comment, “Restoration of Wetlands Under
Section 404 of the Clean Water Act: An Analytical Synthe-
sis of Statutory and Case Law Principles,” 15 Boston College
Environmental Affairs L. Rev. 295, 298-300 (1988). That
would be an extreme measure, unlikely to be ordered, but
the fact that relief is unlikely does not render a case moot.
  But we find almost incomprehensible the plaintiffs’
failure, which they do not mention in their briefs and
were unable to explain at the oral argument, to have
sought a preliminary injunction against the construction
of section 3—or indeed against the construction of any
segment of the I-69 project, since their contention is that
the indirect route is superior to the direct one and that
the Corps was required to compare both routes in their
entirety. A motion for a preliminary injunction might
well have been denied, but the denial of a preliminary
injunction is immediately appealable and would have
brought the litigation to a swifter conclusion. By their
lassitude the plaintiffs have increased substantially the
cost of the relief they seek, for now that cost would
include the cost of destroying section 3; and the cost of
an injunction is a material consideration in whether to
grant it. But this is not an issue we need pursue, as we
don’t think the plaintiffs are entitled to relief in any
event. Anyway all this has nothing to do with mootness.
No. 12-3187                                                  9

  So on to the merits, where the first issue is the scope
of the Corps of Engineers’ duty to consider alternatives
to proposed projects that threaten wetlands. Did it ade-
quately consider whether the indirect route was a prac-
ticable alternative to the direct route? If it was
practicable, and superior from an environmental stand-
point, then the “practicable alternative” regulation re-
quired the Corps to deny a Clean Water Act permit for
the direct route.
  An alternative is “practicable” if it is “capable of
being done after taking into consideration cost, existing
technology, and logistics in light of overall project pur-
poses.” 40 C.F.R. § 230.10(a)(2). With cost, technological
feasibility, and relative environmental impacts not dis-
puted, the only question is whether the indirect route
would achieve the “overall project purposes.”
  Because of the magnitude of the project to fill the I-69
gap between Indianapolis and Evansville, the planning
for it has, as is authorized, 23 C.F.R. § 771.111(g); 40 C.F.R.
§§ 1502.20, 1508.28; see, e.g., Nevada v. Dept. of Energy,
457 F.3d 78, 91-92 (D.C. Cir. 2006), proceeded in two
separate stages, conventionally but unilluminatingly
termed “Tier I” and “Tier II.” “Tiering refers to the cov-
erage of general matters in broader environmental
impact statements (such as national program or policy
statements) with subsequent narrower statements or
environmental analyses (such as regional or basinwide
program statements or ultimately site-specific state-
ments) incorporating by reference the general discus-
sions and concentrating solely on the issues specific to the
10                                              No. 12-3187

statement subsequently prepared.” 40 C.F.R. § 1508.28.
Tiering enables agencies “to eliminate repetitive discus-
sions of the same issues and to focus on the actual
issues ripe for decision at each level of environmental
review.” § 1502.20.
  Tiering is common in highway projects, see Shenandoah
Valley Network v. Capka, 669 F.3d 194, 196-97 (4th Cir.
2012); Sierra Club v. U.S. Army Corps of Engineers, 295
F.3d 1209, 1220-21 (11th Cir. 2002); Conservation Law
Foundation v. Federal Highway Administration, 24 F.3d
1465, 1474-75 (1st Cir. 1994), which (federal highway
projects in particular) often are both complicated and
protracted. The aim of the Tier I analysis of the
Indianapolis-Evansville project was to pick the “corri-
dor”—the route, about 2000 feet wide, within which
the highway would be located. It was at Tier I that the
direct route was picked over the indirect one. Obviously
the highway itself would not be 2000 feet wide. Deter-
mining its exact placement within the corridor (its “align-
ment”) was deferred to the Tier II analysis.
  It was at Tier II that the preferred alternative—a highway
on the direct route—was divided into six sections. As
the plaintiffs point out, the highway authorities may
not shirk responsible analysis of environmental harms
by “segmentation,” Swain v. Brinegar, 542 F.2d 364, 368-71
(7th Cir. 1976) (en banc); Indian Lookout Alliance v. Volpe,
484 F.2d 11, 19-20 (8th Cir. 1973), that is, by evaluating
those harms severally rather than jointly. The environ-
mental harms caused by section 3 are modest when the
possibility of re-creating the wetlands destroyed by the
No. 12-3187                                               11

section is taken into account. But without an estimate of
the environmental harms likely to be caused by all six
sections, the Corps of Engineers would be unable to
determine the aggregate environmental damage that a
highway on the direct route would cause. Yet given the
alignment (locational) options within each route (that is,
where precisely to locate a highway in each 2000-foot
corridor slice) and also the options concerning the
number and siting of ancillary structures such as bridges,
culverts, and rest areas, an attempt at an exact com-
parison of the effect on wetlands of all possible alternative
routes would have made the Tier I analysis unmanageable.
  There is a difference between “segmentation” in its
pejorative sense, and—what is within administrative
discretion—breaking a complex investigation into man-
ageable bits. Klemme v. Sierra Club, 427 U.S. 390, 412-15
(1976). The Federal Highway Administration’s Environ-
mental Impact Statement, issued as part of the Tier I
analysis, had compared the effects on wetlands of the
two corridors. It had found that the indirect route
would harm only between 22 and 40 acres of wet-
lands and the direct route 75 acres. The alignment of
the highway and the number and location of ancillary
structures could affect these figures, but those determina-
tions were properly deferred to Tier II.
   The Corps’ role was simplified by the fact that it is
required to assess the environmental impacts only of the
“practicable” alternatives. The selection of the corridor,
involving a comparison of alternatives that is likely to
illuminate practicability, is a task in the first instance
12                                             No. 12-3187

for the transportation agencies, in this case the Federal
Highway Administration and the Indiana Department
of Transportation. The Corps of Engineers is not responsi-
ble for the interstate highway system. At the same time
the transportation agencies are not free to ignore environ-
mental impacts. They must indicate in the Environ-
mental Impact Statement that is required for any major
project, such as an interstate highway, the likely environ-
mental consequences of their choice of corridor. 42 U.S.C.
§ 4332(2)(C); 23 C.F.R. § 771.133; Simmons v. U.S. Army
Corps of Engineers, 120 F.3d 664, 666 (7th Cir. 1997); see
also Council on Environmental Quality, “The National
Environmental Policy Act: A Study of Its Effectiveness
After Twenty-five Years” 9 (January 1997), www.blm.gov/
or/regulations/files/nepa25fn.pdf (visited July 1, 2013).
The destruction of wetlands is an environmental harm.
Executive Order 11990, “Protection of Wetlands,” 42 Fed.
Reg. 26961 (May 24, 1977). So the highway agencies
must estimate the impact of a proposed highway on
wetlands. And to do that they must consult agencies
that have environmental responsibilities, 42 U.S.C.
§ 4332(2)(C), such as the EPA and the Corps of Engineers.
The highway agencies did that and with the advice they
received concluded that upgrading the indirect route
was not a practicable alternative—the direct route was
the least environmentally damaging corridor alternative
that was practicable. And while the damage was
greater than would result from upgrading the indirect
route, it was modest—75 acres of wetlands (less than
12 percent of one square mile) to be re-created elsewhere.
No. 12-3187                                               13

  The Corps of Engineers reviewed a draft of the En-
vironmental Impact Statement before it was issued and
concurred in the statement’s analysis of the alternatives
(the direct and indirect routes). It did not formally approve
the direct route at Tier I because it wanted the addi-
tional information that the Tier II analysis would pro-
vide—information that would enable it to determine the
effects on wetlands of alternative highway configura-
tions within the preferred corridor. So although participat-
ing in the Tier I corridor determination the Corps
deferred its consideration of the detailed impact on
wetlands, and on the public interest more broadly (for
remember the two separate regulations that it must
apply before it may issue a Clean Water Act permit), until
as a result of the Tier II analysis it knew exactly where
the new highway and its crossings and any other
ancillary structures were planned to be.
  The Tier II analysis required sectioning in order to be
manageable. Once it was decided that the aggregate
wetlands damage that the new highway would create
was modest, the further task of determining the optimal
alignment of the highway, and the optimal location and
design of ancillary structures, within each section to
minimize wetlands damage could best be performed
piecemeal. The highway wasn’t going to be built all at
once. Construction would start at its southernmost point
and Clean Water Act permits would be granted or denied
when the analysis of the wetland effects of alternative
configurations was completed for each segment. The Corps
might have had either to devote six times the resources to
conduct the permit analysis for all six sections at once, to
14                                             No. 12-3187

the prejudice of its other assignments, or to have
delayed the start and completion of construction for
years as a smaller staff did first section 1, and then
section 2, and so forth but did not grant a permit until
it had analyzed all six sections. Instead, moving section
by section and coming to section 3, the Corps assessed
the impact on wetlands both of alternative locations of
the highway within the corridor and of alternative loca-
tions for the crossings in section 3, and it decided that
the planned locations were superior to any other
possible locations in that section.
  The Corps explained that “in light of [the Federal High-
way Administration’s] detailed alternatives analysis [in
Tier I] of alternative corridors for the Interstate 69 pro-
ject,” which had determined that the direct route was
the least environmentally damaging practicable alternative,
the Corps needed to consider only the choice between
on the one hand alternative alignments within the
direct route, and on the other hand not building the
highway at all if the direct route was also impracticable.
For it was apparent from the Tier I analysis that the
indirect route had too many serious drawbacks to be
considered “practicable.” The direct route was shorter,
would provide convenient access to more towns, notably
Bloomington with its large public university (the main
campus of Indiana University), and would reduce the
number of traffic accidents. The indirect route would
reduce travel time between only a few towns in south-
west Indiana and do little to reduce traffic congestion,
traffic accidents, or pollution from traffic. The effect on
wetlands of either route would as we know be modest.
No. 12-3187                                               15

   Although the Corps has an independent responsi-
bility to enforce the Clean Water Act and so cannot just
rubberstamp another agency’s assurances concerning
practicability and environmental harm, it isn’t required to
reinvent the wheel. If another agency has conducted a
responsible analysis the Corps can rely on it in making
its own decision. After all, it is permitted to rely (though
not uncritically) on submissions by private permit appli-
cants and on consultants, see Van Abbema v. Fornell, 807
F.2d 633, 638-42 (7th Cir. 1986); Hillsdale Environmental
Loss Prevention, Inc. v. U.S. Army Corps of Engineers, supra,
702 F.3d at 1170-71; Greater Yellowstone Coalition v.
Flowers, 359 F.3d 1257, 1270-71 (10th Cir. 2004); Friends of
the Earth v. Hintz, 800 F.2d 822, 834 (9th Cir. 1986) (“the
Corps’ regulations do not require the Corps to under-
take an independent investigation or to gather its own
information upon which to base” an environmental
assessment), and it necessarily relies heavily on them—so
why not on federal agencies that have relevant responsi-
bilities and experience?
  For the Corps to assume unilateral responsibility
for determining the acceptability from a transportation
standpoint of alternative highway projects would usurp
the responsibility that federal and state law have
assigned to federal and state transportation authorities.
The wetlands tail would be wagging the highway dog.
The Corps would have to bulk out its staff with experts
on highway design, construction, and transportation. The
duty of the Corps is “to determine the feasibility of
the least environmentally damaging alternatives that
serve the basic project purpose.” Utahns for Better Trans-
16                                              No. 12-3187

portation v. U.S. Dept. of Transportation, 305 F.3d 1152,
1189 (10th Cir. 2002). The basic purpose of the I-69
highway project was to be, and has been, determined
elsewhere in government.
   The Corps’ reliance on findings of other agencies
relating to the central functions of those agencies is an
example of what economists call the division of labor;
it reaps the benefits of specialization; it is both efficient
and inevitable. Different agencies have different com-
parative advantages in resolving different issues and
therefore need not duplicate each others’ studies; instead
they can use the results of those studies as inputs into
their own determinations. Unsurprisingly the applicable
regulations expect the agencies to collaborate, 40 C.F.R.
§ 230.10(a)(4), as they did in regard to the I-69 project.
The highway administrations determined not unreason-
ably that the overall purposes of the new highway
project could not be fulfilled by the indirect route. The
Corps could proceed from there to determine whether
the effect on wetlands of the direct route had been mini-
mized. The Corps found that the plan minimized dam-
age to wetlands in section 3 by the way it configured
the alignment of the highway and the number, location,
and design of the auxiliary structures and by the provi-
sion for re-creating elsewhere the wetlands that the
highway would destroy.
  The plaintiffs criticize some of the analysis conducted
by the highway administrations and adopted by the
Corps. They note an erroneous statement in the analysis
of alternative routes in the Environmental Impact State-
No. 12-3187                                             17

ment: the indirect route “provides no benefit on . . .
increased access to major institutions of higher educa-
tion.” Actually the indirect route would enable 122,000
more persons to drive to a major institution of higher
education (defined as an institution enrolling more than
5000 students) within an hour. But the direct route will
give 446,000 persons the same improved access to higher
education. And this is just one of the improvements
that the direct route when completed will make to the
transportation network of southwestern Indiana.
  A second error alleged is that the analysis of alterna-
tives rejected the indirect route in part because it “would
require the largest number of business relocations (70-
131) as well as a moderately high number of home re-
locations (264-335),” when in truth the direct route
requires comparable numbers: “76 business relocations
and 390 home relocations.” So which route would
require more relocations is unclear, and of course reloca-
tions may differ greatly in their consequences. But
there was no error; the figures are correct and were
acknowledged in the analysis. The plaintiffs just wish
the highway agencies had weighed this factor more
heavily. They were not required to do so. The amount of
relocation was never thought to be decisive; it was just
one factor among many to be considered in assessing
the practicability of the alternative corridors.
  We have yet to consider whether the Corps of
Engineers conducted an adequate public interest review,
as required by the second regulation that we quoted
from at the outset and now must quote in full:
18                                               No. 12-3187

     The decision whether to issue a permit will be based
     on an evaluation of the probable impacts, including
     cumulative impacts, of the proposed activity and its
     intended use on the public interest. Evaluation of
     the probable impact which the proposed activity
     may have on the public interest requires a careful
     weighing of all those factors which become relevant in
     each particular case. The benefits which reasonably
     may be expected to accrue from the proposal must
     be balanced against its reasonably foreseeable detri-
     ments. The decision whether to authorize a proposal,
     and if so, the conditions under which it will be allowed
     to occur, are therefore determined by the outcome
     of this general balancing process. That decision
     should reflect the national concern for both protec-
     tion and utilization of important resources. All
     factors which may be relevant to the proposal must be
     considered including the cumulative effects thereof:
     among those are conservation, economics, aesthetics,
     general environmental concerns, wetlands, historic
     properties, fish and wildlife values, flood hazards,
     floodplain values, land use, navigation, shore erosion
     and accretion, recreation, water supply and conserva-
     tion, water quality, energy needs, safety, food and
     fiber production, mineral needs, considerations of
     property ownership and, in general, the needs and
     welfare of the people.
33 C.F.R. § 320.4(a)(1); see also Sierra Club v. Sigler, 695
F.2d 957, 975 (5th Cir. 1983).
No. 12-3187                                              19

   It would be unrealistic to think that the Corps could,
within a reasonable time and with its limited re-
sources—not to mention the limits of human knowl-
edge—actually analyze each of these factors in depth,
attach a weight to each, and by adding up all the weights
determine whether to approve a project. The regulation
is overly ambitious, and should perhaps be considered
aspirational. Especially when as in this case the Corps is
given a chance to and does weigh in on the highway
agencies’ analysis of the relative benefits and costs of a
proposed highway project, it should be able to rely on
that analysis, if it is a responsible analysis, while con-
ducting its own analysis of those factors that are within
its competence, such as effects on wetlands.
   Indeed as an original matter one might have thought
that since the concern of the Clean Water Act is with
water, the requirement of assessing the public interest
was intended only to make sure that the Corps did not
casually surrender its duty to protect wetlands (and
navigable waters of the United States more generally) to
vague invocations of “public interest.” But the Supreme
Court has held that, no, the regulation is to be inter-
preted literally and so requires the Corps to evaluate all
the factors listed in it. Cf. United States v. Alaska, 503
U.S. 569, 580-83 (1992). And the Corps did this, so far as
it was possible to do. For in concluding that granting a
Clean Water Act permit for section 3 would be in the
public interest the Corps analyzed a remarkable number
of public interest factors: substrate; currents, circulation
or drainage patterns; suspended particulates; turbidity;
water quality; flood control functions; storm, wave and
20                                               No. 12-3187

erosion buffers; erosion and creation patterns; aquifer
recharge; baseflow; mixing zone; special aquatic sites;
habitat for fish and other aquatic organisms; wildlife
habitat; endangered or threatened species; biological
availability of possible contaminants in dredged or fill
material; existing and potential water supplies, water
conservation, water-related recreation; aesthetics; parks,
national and historic monuments, wild and scenic rivers,
wilderness areas, research sites, etc.; traffic/transportation
patterns; energy consumption or generation; navigation;
safety; air quality; noise; historic properties; land-use
qualification; economics; prime and unique farmland;
food and fiber production; general water quality; mineral
needs; consideration of private property; cumulative
and secondary impacts; environmental justice; the
relative extent of the public and private need for the
proposed work; the practicability of using reasonable
alternative locations and methods to accomplish the
objective of the proposed structure or work; and the
extent and permanence of the beneficial and/or detri-
mental effects the proposed structures or work may
have on the public and private uses to which the area is
suited.
  The plaintiffs have not shown that the conclu-
sion the Corps drew from its detailed and highly
technical analysis—that section 3 of the direct route is
in the public interest—was unreasonable.
  It’s true that the Corps hasn’t done and won’t be doing
a public interest analysis of the entire project—all six
sections. But there does not appear to be a dispute over
No. 12-3187                                              21

whether the project as a whole is contrary to the
public interest—and it might be an impertinence for the
Corps of Engineers to decide that a sister federal agency,
the Federal Highway Administration, was proposing a
project that was not in the public interest. Anyway the
highway agencies’ Environmental Impact Statements
had covered most, maybe all, of the ground that a
public interest analysis would have covered. The plain-
tiffs argue neither that the project as a whole is contrary
to the public interest nor that it was sectioned in order to
prevent consideration of its total environmental harms
(improper “segmentation,” discussed earlier). They may
be playing a delay game: make the Corps do a public
interest analysis from the ground up (along with an all-at-
once six-section permit analysis) in the hope that at
least until the analysis is completed there will be no
further construction, so that until then the highway will
end at the northernmost tip of section 3—making it a
road to nowhere.
                                                 A FFIRMED.




                           7-16-13
