ELR Citation: ELR 20226
No(s). s. CV 589-51, CV 582-98 (S.D. Ga. Aug 24, 1990)

The court holds that the Environmental Protection Agency (EPA) properly exercised its veto authority under §404(c) of the Federal Water Pollution Control Act (FWPCA) when it set aside a decision of the Corps of Engineers to issue a dredge and fill permit for construction of Lake Alma in Georgia. Environmental groups opposed the project since its inception in the 1970s, and EPA's restriction of the project area from serving as a discharge site for dredged and fill material effectively prohibited the Lake's construction. EPA vetoed the Corps' issuance of an FWPCA §404 dredge and fill permit because it would have an adverse impact on water quality and wetlands values. The court first holds that EPA is not estopped from vetoing the project based on a reversal of the position it took in 1983 litigation. No judicial body was misled by EPA or relied on EPA's position to the detriment of the system when making a judgment. Nor was EPA engaged in affirmative misconduct, a necessary prerequisite for estoppel. The court next holds that EPA's decision was not arbitrary or capricious in violation of the Administrative Procedure Act. EPA evaluated the adequacy of the project's mitigation plan and determined that the plan did not sufficiently compensate for wildlife and habitat losses and was not in the public interest. Moreover, the FWPCA grants EPA broad discretion to employ §404(c) as it deems appropriate. Finally, the court holds that the administrative record fully supports EPA's decision to prohibit construction of Lake Alma. In its final determination, EPA found that the project would result in the destruction of vegetated wetland habitat and would adversely affect the ability of the forested wetland floodplain to act as a travel corridor for the movement and migration of wildlife. The plaintiffs' assertion that EPA improperly considered factors other than the effects on wildlife lacks merit. The FWPCA §404(b)(1) guidelines used to determine the acceptability of a proposed discharge authorize consideration of nonwildlife factors, including water quality and the loss of wetlands. Moreover, nonwildlife factors directly bear on the viability and quality of wildlife habitat.

[A related decision is published at 14 ELR 20172.]

Counsel for Plaintiffs
J. Jimmy Boatright, M. Theordore Solomon
Solomon & Edgar
P.O. Box 467, Alma GA 31510
(912) 632-7777

James S. Stokes, Sydney S. Cleland, Robert D. Mowrey
Alston & Bird
One Atlantic Ctr., 1201 W. Peachtree St., Atlanta GA 30309-3424
(404) 881-7000

Counsel for Defendants
W. Christian Schumann
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Henry L. Whisenhunt Jr., U.S. Ass't Attorney
P.O. Box 2017, U.S. Courthouse, Augusta GA 30903
(404) 724-0517

Ruth Bell, Catherine Winer
U.S. Environmental Protection Agency
401 M St., Washington DC 20460
(202) 382-2090