ELR Citation: ELR 20294
No(s). S87-325 (N.D. Ind. Jul 24, 1990)

The court holds that notice was inadequate in a citizen suit under §505 of the Federal Water Pollution Control Act (FWPCA) alleging violations of the FWPCA and the National Environmental Policy Act (NEPA) against the Army Corps of Engineers and local officials. The citizen groups challenged a 10-year, two-phase harbor dredging project that produced material unsuitable for open-lake disposal and thus required construction of a contained disposal facility for the dredged material. The court holds that the suit is barred because the citizen groups' notice failed to specify the regulations allegedly violated or the persons responsible for the violations. The suit is not saved by the groups' contention that, although their notice failed to satisfy the FWPCA's precise requirements, it was timely and sufficed to give notice in fact. First, the groups have made no showing that an ongoing investigation of the alleged violations was in progress before notice was given. Second, even though members of a citizens group rather than an attorney prepared the notice, the U.S. Supreme Court's decision in Hallstrom v. Tillamook County, 20 ELR 20193, rejects the argument that environmental citizen suits should be viewed with the solicitude afforded to pro se employment discrimination plaintiffs. The court next holds that the groups' NEPA claim is not moot but fails on the merits. The record demonstrates that no supplemental environmental impact statement (SEIS) was required for phase two of the project because the Corps took the required "hard look" at environmental factors and made a rational decision when it modified the project plan before implementing phase two. Further, evaluations by the Corps and the Environmental Protection Agency indicated that no SEIS was needed between the two dredging phases. Finally, the court holds that the Corps and local officials did not violate FWPCA §§402 and 404 permit requirements. The court observes that although dual permits should perhaps be required, §402 does not apply to dredge and fill projects; the Corps need not issue itself a permit under §404; and the record does not demonstrate any violation of §404 by the city.

Counsel for Plaintiffs
Ivan E. Bodensteiner, Robert F. Blomquist
Valparaiso University School of Law, Valparaiso IN 46383
(219) 465-7834

Counsel for Defendants
Martin W. Kus
Newlay, Lewis, Kaminski & Jones
916 Lincoln Way, P.O. Box 1816, LaPorte IN 46350
(219) 362-1577

Roger J. Marzulla, Charles J. Sheehan
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Clifford D. Johnson, Ass't U.S. Attorney
M-1 Federal Bldg., 204 S. Main St., South Bend IN 46601-2191
(219) 236-8287