ELR Citation: ELR 20249
No(s). 88-8144-CIV (S.D. Fla. Jun 10, 1988)

The court holds that the Army Corps of Engineers' issuance of a permit to the city of Boca Raton under §404 of the Federal Water Pollution Control Act (FWPCA) and §10 of the Rivers and Harbors Act was not arbritrary and capricious. Challenging the permit under the Endangered Species Act (ESA), the FWPCA, the National Environmental Policy Act (NEPA), and the Coastal Zone Management Act, plaintiffs sought injunctive relief to halt a beach nourishment program that would have constructed a beach 100 to 125 feet wide along a 1.45-mile stretch, with 980,000 yards of sand dredged from an area located 2,500 feet offshore. The court first holds that the city, by complying with the U.S. Fish and Wildlife Service's biological opinions, would not disturb the sea turtle hatching and therefore complied with the ESA. The court then holds that the permit complied with the Environmental Protection Agency's and Corps guidelines by adequately considering the effect of the permit on recreation. Even assuming that the Corps is required to consider underwater recreation as a separate factor, the court finds that the Corps gave adequate consideration to that factor and therefore did not act arbitrarily or capriciously. The court also holds that the Corps' environmental impact statement (EIS) complied with NEPA by adequately analyzing the impact of the burial of the artificial reefs on recreational viewing of marine life. Furthermore, the court notes that plaintiffs, by failing to comment on the draft EIS, are foreclosed from claiming that the EIS is inadequate. Finally, the court holds that the Corps was not required to consider a narrower beach as an alternative to the project.

Counsel for Plaintiffs
Kenneth W. Lipman
Siegel & Lipman
Crocker Plaza, Ste. 801, 5355 Town Ctr. Rd., Boca Raton FL 33486
(407) 391-4900

Jonathan L. Shepard, Howard I. Fox, Eric P. Jorgensen
Sierra Club Defense Fund
1424 K St. NW, Ste. 600, Washington DC 20005
(202) 347-1770

Counsel for Defendants
Stephen L. Samuels
Land and Natural Resources Division
U.S. Department of Justice, P.O. Box 7611, Ben Franklin Station, Washington DC 20044
(202) 633-3179