ELR Citation: ELR 20671
No(s). 90 C 1755 (N.D. Ill. Jul 30, 1993)

The court upholds as rational a U.S. Army Corps of Engineers' (the Corps') denial of a permit to construct a marina on the Fox River in Illinois based on the project's expected adverse effects on the physical and biological integrity of the river, the potential worsening of already oversaturated boating conditions, and the substantial public opposition to the proposal. Pursuant to the Federal Water Pollution Control Act (FWPCA) and the Rivers and Harbors Act (RHA) the proposed filling of wetlands for marina construction constitutes a discharge of pollutants into navigable waters of the United States, thus requiring permits under FWPCA §404 and RHA §10. Under these statutes, the Corps is required to balance the favorable impacts of a proposed project against its detrimental impacts and grant a permit unless to do so would be contrary to the public interest, but the Corps will deny the permit, regardless of the outcome of the public interest review, if the discharges do not comply with FWPCA §404 Guidelines. The court holds that the Corps did consider the direct and indirect effects of the discharges as required by the statutes and case law in deciding to deny the permit.

Counsel for Plaintiff
Dennis E. Carlson, Sidney Margolis
Vedder, Price, Kaufman & Kammholz
222 N. La Salle St., Chicago IL 60601
(312) 609-7500

Counsel for Defendants
Daniel S. Goodman
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000