ELR Citation: 53 ELR 20161
No(s). 22-30608 (5th Cir. Oct 12, 2023)

The Fifth Circuit reversed a district court ruling upholding the Army Corps of Engineers' decision to issue a CWA §404 permit to fill wetlands for a commercial and residential development project in St. Tammany Parish, Louisiana. Parish residents and environmental groups argued the Corps' decision violated NEPA and the CWA. The district court granted summary judgment for the Corps, holding its decision did not violate either act. On appeal, plaintiffs argued the EA failed to meaningfully consider the project's potential impacts, including cumulative impacts, in violation of both NEPA and the CWA. The appellate court found the Corps failed to explain how it determined the impacts would not rise to the level of significant, and thus acted arbitrarily in relying on its EA to issue a FONSI. It further found that because the EA determined the project would have some level of incremental impact on the environment, it was arbitrary and capricious for the Corps to limit its cumulative impacts analysis. The court reversed and vacated the district court ruling, enjoined the Corps from issuing a §404 permit until the district court issues further orders, and remanded to the Corps to reassess the significance of the project.