ELR Citation: ELR 20799
No(s). C95-591Z (W.D. Wash. May 11, 1995)

The court holds that the U.S. Army Corps of Engineers (the Corps) did not violate the Federal Water Pollution Control Act (FWPCA) by issuing an FWPCA §404 permit to fill wetlands at a proposed thoroughbred racetrack. An environmental group seeking a temporary restraining order or a preliminary injunction blocking issuance of the permit sued the Corps alleging that it arbitrarily and capriciously rejected a practicable alternate site in its environmental impact statement because the alternate site could not generate enough "handle" or wagering revenue. The court holds that the environmental group failed to establish either the probability of success on the merits or the serious questions sufficient to warrant the award of either a temporary restraining order or a preliminary injunction. The court found that the Corps expressed a rational basis for excluding from the calculation of the alternate site's handle wagering on races at other tracks in the state. The use of a fixed amount for off-site or "satellite" wagering in calculating the alternate site's handle was supported by historical data. In addition, the Corps' analysis of population and income data in calculating the alternate site's handle was not arbitrary and capricious. The court next holds that the environmental group failed to show that the environment would suffer irreparable harm if the permit was issued. Under the §404 permit's mitigation plan, the racetrack developer would replace 17.4 acres of lost wetlands with 56.5 acres of new or restored wetlands in the vicinity of the site. Finally, the court holds that the balance of hardships favors the denial of a preliminary injunction. A delay in the location and construction of a new racetrack would cause irreparable harm to the state's thoroughbred racing industry.

Counsel for Plaintiff
Jeffrey M. Eustis
505 Madison St., Seattle WA 98104
(206) 625-9515

Counsel for Defendant
Brian C. Kipnis, Ass't U.S. Attorney
U.S. Attorney's Office
Sea-First Plaza Bldg.
800 5th Ave., Seattle WA 98104
(206) 553-7970