ELR Citation: ELR 20003
No(s). 81-1358 (E.D. La. May 28, 1981)

The court enjoins further implementation of a §404 permit under the Federal Water Pollution Control Act for a flood protection project until the Corps of Engineers complies with the National Historic Preservation Act (NHPA) and the National Environmental Policy Act (NEPA). The court first rules that plaintiff's action is not barred by laches. While plaintiff delayed in filing suit, the delay was excusable because plaintiff participated in the administrative process and promptly filed suit when the permit was issued. In addition, thee is no prejudice to defendants because construction has not yet begun, the money expended so far on the project is only 2.5 percent of the total, and plaintiff's success on the merits will only delay the project until the Corps complies with the statutes.

The court also rules that the Corps violated the NHPA by failing to conduct an historic survey contrary to the recommendations of the State Historic Preservation Officer (SHPO). The Corps' regulations require the Corps to show good cause for issuing a permit without following the SHPO's recommendations. The Corps also violated its NEPA regulations because it failed to prepare an adequate environmental impact assessment (EIA). Another EIA must be prepared, which includes more than an assessment of socioeconomic effects, and the findings of facts must be completed after the EIA. Finally, the court rules that the Corps' decision not to prepare an environmental impact statement (EIS) was unreasonable. The record supports the Corps' conclusion that there would be no adverse impact on water quality and fish habitat, but the Corps did not sufficiently determine the impact of the project on historical and archaeological sites. The court orders the Corps to confer with the SHPO, prepare an EIA, and make a determination whether an EIS is required.

[A related decision is reported at 13 ELR 20011 — Ed.]

Counsel for Plaintiff
James G. Derbes, Peter D. Derbes
Derbes & Derbes
315 Richards Bldg., 837 Gravier St., New Orleans LA 70112
(504) 522-8706

Counsel for Defendants
William F. Baity, Ass't U.S. Attorney
Hale Boggs Fed. Bldg., 500 Camp St., New Orleans LA 70130
(504) 589-2921

Richard . McGinity, General Counsel
Orleans Levee Board
648 First National Bank of Commerce Bldg., 210 Baronne St., New Orleans LA 70112
(581-5225

Counsel for Intervenor
Ralph L. Kaskell Jr., Charles K. Reasoner
Deutsch, Kerrigan & Stiles
One Shell Sq., New Orleans LA 70139
(504) 581-5141