ELR Citation: ELR 20079
No(s). 06-01268 (D.D.C. Mar 31, 2009)

A district court held that the U.S. Army Corps of Engineers erred in approving, and the U.S. Environmental Protection Agency (EPA) erred in failing to veto, a Clean Water Act (CWA) permit authorizing the construction of a 1,526-acre reservoir in eastern Virginia. The proposed reservoir project would flood over 1,500 acres of land and require the excavation, fill, destruction, and flooding of approximately 403 acres of freshwater wetlands and the elimination of 21 miles of free-flowing streams. The Corps arbitrarily and capriciously concluded that the project was the least damaging practicable alternative, that it would not cause or contribute to significant degradation of the waters of the United States, and that it was in the public interest. Similarly, EPA acted arbitrarily and capriciously in failing to veto the permit. It is clear that EPA's decision to refrain from vetoing the permit was based on a whole range of reasons completely divorced from the CWA's statutory text. The Regional Administrator determined that engaging in the required notice and comment proceedings would divert resources; that given the extensive public process provided by the Corps, another such process would be unlikely to add any new information; that there was a water supply shortfall that needed to be addressed; and that the permit would likely be subject to litigation in any event, among other things. None of these have anything to do with whether granting the permit would have an unacceptable adverse effect under the CWA.