ELR Citation: ELR 20081
No(s). s. 93-10883-MA, -10623-MA (D. Mass. Jul 23, 1993)

The court grants summary judgment against citizen groups seeking to discontinue construction of a municipal sewerage discharge tunnel in Massachusetts and Cape Cod bays, holding that §7 of the Endangered Species Act (ESA) was not violated in the preparation or construction of the project. The court holds that there is no violation of ESA §7(a)(2), because there is insufficient evidence to show that the construction and operation of the tunnel or the discharge of nutrients and toxic substances from the tunnel will harm endangered species in the bays. The court next holds that there is no violation of ESA §7(c), because the U.S. Environmental Protection Agency (EPA or the Agency) prepared a proper biological assessment before construction began on the project and the ESA only requires completion of a biological assessment, and not a preconstruction, complete biological opinion by the National Marine Fisheries Service. The court also holds that there is no violation of ESA §7(d), because the tunnel could be incorporated into several alternative discharge approaches. Therefore, its continued construction will not foreclose the development of ecologically safer discharge alternatives. The court holds that because EPA prepared a formal environmental impact statement, the National Environmental Policy Act does not require the Agency to supply a "convincing statement of reasons" why the potential effects from the project will be ecologically insignificant. Finally, the court holds that the project does not violate the Marine Mammal Protection Act, because although there is no express finding that the tunnel will have zero impact on marine mammals, there is no evidence that the construction and use of the tunnel will disturb marine mammals.

Counsel for Plaintiffs
Eric R. Glitzenstein, Katherine A. Meyer
Meyer & Glitzenstein
1601 Connecticut Ave. NW, Ste. 450, Washington DC 20009
(202) 588-5206

Counsel for Defendants
George B. Henderson II, Ass't U.S. Attorney
U.S. Attorney's Office
1003 J. W. McCormack Bldg., Boston MA 02109
(617) 223-9400

Elinor Coburn
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000