Eleventh Circuit Endorses Corps’ Use of Letters of Permission as NEPA Categorical Exclusions—even in a National Seashore—and Declines Size-Based Limits via Ejusdem Generis

Introduction

In Center for a Sustainable Coast v. U.S. Army Corps of Engineers, No. 24-14171 (11th Cir. Oct. 20, 2025) (per curiam) (not for publication), the Eleventh Circuit affirmed the U.S. Army Corps of Engineers’ decision to authorize a private dock on Cumberland Island via a “letter of permission” (LOP), a procedural pathway that operates as a categorical exclusion (CE) from the National Environmental Policy Act’s (NEPA) Environmental Impact Statement (EIS) requirement. The case returns to the court following a prior ruling that revived the NEPA challenge on standing grounds.

The dispute centers on whether the Corps acted arbitrarily and capriciously under the Administrative Procedure Act (APA) when it concluded that Lumar LLC’s 500-square-foot dock would be “minor,” would have no “significant” individual or cumulative impacts on environmental values, and would “encounter no appreciable opposition,” thereby qualifying for an LOP. The plaintiffs—the Center for a Sustainable Coast and an individual member—argued that the dock’s location within the Cumberland Island National Seashore, which Congress directed be “permanently preserved in its primitive state,” demanded full NEPA review and that the LOP was legally improper. They also asserted the Corps downplayed aesthetic impacts, ignored potential induced development, and misapplied a regulatory list by treating the LOP “catchall” as covering more than “small” docks.

The court rejected these challenges, holding that the Corps reasonably applied its regulations, adequately considered environmental and aesthetic factors (including the Seashore Act’s preservation mandate), and permissibly relied on the absence of objections from resource agencies, notably the National Park Service (NPS), to forecast “no appreciable opposition.” The court further clarified that the ejusdem generis canon does not constrain the LOP catchall to “small docks,” because the catchall itself embeds the controlling theme—negligible environmental effects.

Summary of the Opinion

The Corps’ decision to issue an LOP and forego an EIS was not arbitrary and capricious under the APA; the agency’s explanation was reasonable and grounded in the record.
The Corps reasonably found the project “minor,” with negligible effects on air, water, land, wildlife, noise, erosion, and aesthetics, and predicted no appreciable public opposition.
Considering Cumberland Island’s protected status, the Corps’ concise aesthetic analysis—emphasizing similarity to numerous existing docks and to an NPS ferry dock nearby—was sufficient to support the CE.
Reliance on NPS’s lack of objection was a reasonable proxy for predicting “no appreciable opposition,” given NPS’s custodial role and public interface.
NEPA does not require the Corps to assess environmental effects of other future or geographically separate projects potentially spurred by the dock (e.g., a future residence), consistent with the Supreme Court’s Seven County Infrastructure Coalition decision.
Under ejusdem generis, the LOP catchall is not restricted to “small docks”; instead, it covers projects that meet the embedded criteria of being minor, with no significant impacts and no appreciable opposition.
An extra-record, 1994 NPS Land Protection Plan—even if considered—did not undercut the Corps’ conclusions; the Corps addressed scenic, historic, and related land-use values and NPS did not object.
The court left open whether purely aesthetic harms alone can constitute “significant” effects under NEPA, finding it unnecessary to decide that question on these facts.
Affirmed: The Corps’ LOP stands.

Statutory and Regulatory Framework

Rivers and Harbors Act of 1899, 33 U.S.C. § 403: Requires Corps authorization for structures in navigable waters.
NEPA, 42 U.S.C. § 4332(C): Requires an EIS for “major Federal actions significantly affecting the quality of the human environment,” unless a categorical exclusion applies or an Environmental Assessment (EA) supports a Finding of No Significant Impact (FONSI).
Corps Regulations (then-applicable; 1988 version): Authorized “letters of permission” for projects that, in the district engineer’s opinion, are minor, have no significant individual or cumulative environmental impacts, and should encounter no appreciable opposition. 33 C.F.R. § 325.2(e)(1)(i); § 325 app. B at 6a–6b (1988).
Cumberland Island National Seashore Act, 16 U.S.C. § 459i-5(b): Directs that the Seashore “be permanently preserved in its primitive state.”
APA, 5 U.S.C. § 706(2)(A): Courts set aside agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
Update note: The Corps has since promulgated new NEPA rules (90 Fed. Reg. 29465 (July 3, 2025)), but the parties and the court proceeded under the prior version; the court observed that the new rules include the same LOP categorical exclusion concept (now at 33 C.F.R. § 333.14(g)(1)(v) (2025)).

Detailed Analysis

Precedents Cited and Their Influence

Department of Transportation v. Public Citizen, 541 U.S. 752 (2004): Establishes deferential arbitrary-and-capricious review of an agency’s decision not to prepare an EIS and underscores causation limits—agencies need not consider effects they do not control. The court anchors its deferential posture in this line of authority.
FCC v. Prometheus Radio Project, 592 U.S. 414 (2021): Emphasizes that agency decisions must be “reasonable and reasonably explained.” The panel uses this benchmark to assess the Corps’ concise but clear reasoning.
Florida v. Department of Health & Human Services, 19 F.4th 1271 (11th Cir. 2021) and Alabama-Tombigbee Rivers Coalition v. Kempthorne, 477 F.3d 1250 (11th Cir. 2007): Reiterate the Eleventh Circuit’s “exceedingly deferential” review, reinforcing that rational decisions within agency authority stand.
Ohio v. EPA, 603 U.S. 279 (2024): Clarifies that deference is not “toothless”—agencies must address important aspects and provide satisfactory explanations. The Corps’ LOP narrative is measured against this requirement.
Wilderness Watch & Public Employees for Environmental Responsibility v. Mainella, 375 F.3d 1085 (11th Cir. 2004): Holds that documentation of a categorical exclusion need not be lengthy; it must show the agency considered and applied the CE. The Corps’ brief aesthetic explanation is upheld under this standard.
River Road Alliance, Inc. v. Corps of Engineers of U.S. Army, 764 F.2d 445 (7th Cir. 1985): Observes that purely aesthetic objections rarely require an EIS. The Eleventh Circuit cites this but leaves the broader aesthetic question open.
WorldCom, Inc. v. FCC, 238 F.3d 449 (D.C. Cir. 2001): Sustains deference to reasonable agency predictive judgments even if other reasonable views exist. Applied to the Corps’ forecast of “no appreciable opposition.”
Southwest Airlines Co. v. Saxon, 596 U.S. 450 (2022) and Fischer v. United States, 603 U.S. 480 (2024): Articulate the ejusdem generis canon—general terms at the end of a list are interpreted in light of common attributes of enumerated items. The court uses this canon to validate the LOP catchall’s scope.
Seven County Infrastructure Coalition v. Eagle County, 145 S. Ct. 1497 (2025): Limits NEPA’s required analysis of downstream or induced projects, rejecting the need to assess “other future or geographically separate projects” possibly triggered by the immediate project. This authority defeats the plaintiffs’ “snowballing” argument about a potential future residence.

Legal Reasoning

The Corps could invoke the LOP categorical exclusion only if it reasonably concluded that the project (1) was minor in nature, (2) lacked significant individual or cumulative impacts on environmental values, and (3) would encounter no appreciable opposition. The court examined each prong and found the record-supported reasoning adequate.

1) “Minor in nature”

Facts: The dock is 10×50 feet, with an inland 4×26 ramp, a 14×20 deck, and a 200×6 walkway; it would extend 50 feet into Fancy Bluff Creek, leaving approximately 3,070 feet of unobstructed waterway at normal tide. The design is comparable to numerous existing docks, including an NPS ferry dock roughly 1,000 feet away, and is intended for small recreational vessels rather than larger ships or barges.
Holding: The Corps reasonably categorized this as “minor,” focusing on size, function, context, and consistency with existing structures.
Takeaway: “Minor” is a context-sensitive determination keyed to scale, function, and environmental setting—not a strict square-foot metric.

2) “No significant individual or cumulative impacts on environmental values”

Scope of review: The Corps assessed more than two dozen factors, including soil and water conservation, water and air quality, noise, flood hazards, shoreline erosion, shellfish productivity, wildlife conservation, and cultural resources.
Construction impacts: The build would take less than a year with no dredging, fill, or excavation; conditions were imposed to protect endangered West Indian manatees during construction.
Operational impacts: The Corps predicted minimal if any increase in boat traffic.
Cultural resources: The Corps required an archaeological assessment over a 7.3-acre tract; no red flags were found by the Corps or Georgia’s Historic Preservation Division.
Aesthetics and “primitive state”: Although the letter did not use the word “primitive,” the Corps explicitly analyzed aesthetics, concluding the dock would have a negligible aesthetic effect because it mirrors “numerous” similar installations in the area. Under Mainella, CE documentation need not be lengthy—what matters is that the agency considered and applied the criteria.
Result: The court found the Corps’ environmental and aesthetic conclusions reasonable and adequately explained.

3) “No appreciable opposition”

Agency consultation: The Corps consulted the U.S. Fish and Wildlife Service, National Marine Fisheries Service, NPS, and Georgia Department of Natural Resources; none objected.
NPS’s role: Given NPS’s custodial role and close connection to public use and appreciation of the Seashore, its non-objection reasonably informed the Corps’ prediction of limited public opposition.
Predictive judgment: Even if litigation later materializes, an agency’s contemporaneous, reasonable prediction is entitled to deference. The court leaned on WorldCom to underscore that multiple reasonable views can exist; the agency’s chosen reasonable view prevails.

Addressing Plaintiffs’ Arguments

“Primitive” vs. “aesthetic” language: The court held that the Corps’ aesthetic analysis effectively addressed the Seashore Act’s preservation interest in the island’s natural appearance; the absence of the word “primitive” was not fatal where the substance was covered. The Corps was also alert to “extraordinary circumstances” (protected status) embedded in CE analysis.
Induced development: The application’s reference to a possible future residence did not require analysis of that separate, future project under Seven County Infrastructure Coalition.
Ejusdem generis / “small docks”: The court rejected the argument that the LOP catchall must be read as limited to small docks because “small docks” appear elsewhere in the list. The catchall already incorporates the controlling theme—negligible environmental effects through the three explicit criteria—so size is not a standalone limit.
Parity with Corps’ own categorical exclusions: Plaintiffs pointed to past commentary suggesting private permit CEs should be of the “same general magnitude” as the Corps’ own CEs. The court found no evidence the dock’s environmental effects exceeded that magnitude.

Extra-Record Land Protection Plan (1994)

Even assuming the plan could be considered and set land-use controls, it did not undermine the Corps’ decision. The Corps evaluated scenic, historic, and related values under 33 C.F.R. § 320.4(e) and found negligible effects; importantly, NPS did not object.
To the extent inland residential construction might implicate land-use classifications, the Corps had no duty to analyze a “possible future project” under Seven County Infrastructure Coalition.

Impact and Forward-Looking Implications

CEs for Letters of Permission: The decision strengthens agencies’ ability to use LOPs as CEs for minor private projects—even in highly sensitive settings like national seashores—where the record shows minimal impacts and agency non-objection.
Aesthetics documentation: Concise, comparator-based aesthetic analyses can suffice, especially where the project blends with existing built features. Agencies should still clearly connect facts (e.g., viewshed, similarity to existing structures) to their negligible-impact conclusion.
No appreciable opposition: Resource-agency silence or non-objection, particularly by the land-management agency with public-facing stewardship (like NPS), can support a predictive finding of limited opposition. Agencies should document outreach and responses.
Ejusdem generis and scope: By anchoring the LOP catchall in its embedded criteria rather than size labels, the court avoids a rigid, square-foot ceiling. The limiting principle is environmental effect, not magnitude alone.
Induced growth limits: Seven County Infrastructure Coalition narrows NEPA obligations regarding separate, future projects. Challengers must tether alleged “snowballing” to effects the permitting agency is responsible for and that are not speculative.
Continuity under new regulations: Because the 2025 Corps NEPA rule retains a substantively similar LOP CE, this decision’s reasoning remains relevant to current practice.
Litigation posture: Although unpublished, the opinion is persuasive authority within the Eleventh Circuit and contributes to a broader, cross-circuit body of law emphasizing deference to reasonable agency CE determinations with a documented basis.

Practical Guidance

For agencies:
- Explicitly track the three LOP criteria and tie concrete facts to each.
- Document consultation with relevant resource agencies and preserve their responses.
- Explain aesthetics with comparators, context, and visibility; acknowledge protected status and “extraordinary circumstances.”
- Impose targeted mitigation (e.g., species-protection conditions, cultural resource surveys) and show how such conditions reduce impacts to negligible levels.
- Record your predictive judgment about public opposition and the basis (e.g., agency feedback, project context, past experience).
For project proponents:
- Design projects to mirror existing built environment and minimize construction intensity (no dredging/fill when possible).
- Offer mitigation and studies up front (e.g., endangered species precautions, archaeological assessments).
- Engage early with land managers (e.g., NPS) to avoid objections.
For challengers:
- Focus on record gaps that show the agency ignored an “important aspect,” not merely that more analysis could have been done.
- Demonstrate atypical aesthetic or environmental impacts that distinguish a project from nearby structures.
- If alleging appreciable opposition, identify contemporaneous evidence (at the time of decision) that the agency’s prediction was unreasonable.

Complex Concepts Simplified

NEPA categorical exclusion (CE): A category of actions that an agency has previously determined do not individually or cumulatively have significant environmental effects and thus do not require an EA or EIS, absent “extraordinary circumstances.”
Letter of Permission (LOP): A streamlined Corps permit process for certain projects under the Rivers and Harbors Act and related authorities. For NEPA purposes, qualifying LOPs function as a CE when the three criteria are met (minor nature, no significant impacts, no appreciable opposition).
Arbitrary and capricious review: A highly deferential judicial standard under the APA. Courts ask whether the agency considered relevant factors, explained its decision, and avoided clear errors of judgment.
“Primitive state” (Seashore Act): A statutory preservation objective for Cumberland Island emphasizing minimal human alteration and natural aesthetics; here, the court treated aesthetics analysis as addressing this concern.
Ejusdem generis: A canon of interpretation that reads a general term following a list in light of the list’s common attributes. The court held the LOP catchall already embeds the list’s limiting theme (negligible environmental effects), so it is not constrained by a “small docks” label.
Predictive judgments: Agencies often must forecast outcomes (e.g., public opposition). Courts defer to reasonable predictions supported by record context and expertise.
Induced or “snowball” effects: Claims that a project will spur other development. Under Seven County Infrastructure Coalition, agencies typically need not analyze separate, future, or geographically distinct projects that may follow from the immediate action.

Unresolved or Narrowly Addressed Questions

Purely aesthetic harms: The court did not decide whether aesthetics alone can be “significant” under NEPA. Other courts recognize aesthetics as part of the “human environment” but often require more than subjective displeasure.
“No appreciable opposition”: The opinion endorses reliance on resource-agency non-objection in the specific context of a national seashore. How much weight such silence carries in other contexts may depend on record evidence and agency roles.

Conclusion

The Eleventh Circuit’s decision offers a clear, practical template for agencies invoking NEPA categorical exclusions through Letters of Permission: tie facts to the regulatory criteria; document environmental, cultural, and aesthetic considerations concisely but concretely; consult resource agencies and heed their feedback; and explain predictive judgments about public opposition. The court also provides two notable doctrinal clarifications. First, ejusdem generis does not constrain the LOP “catchall” to “small docks”; the catchall’s embedded criteria supply the limiting principle—negligible environmental effects. Second, consistent with Seven County Infrastructure Coalition, NEPA does not require agencies to analyze speculative induced development that is future or geographically separate from the permitted action.

Although unpublished, the opinion reinforces a central tenet of NEPA judicial review—deference to reasonable agency determinations supported by the record—while signaling how aesthetics and protected-status concerns can be addressed within the streamlined LOP framework. For agencies and applicants alike, it underscores that careful, targeted documentation can sustain categorical exclusions even within highly valued, protected landscapes.