ELR Citation: ELR 20067
No(s). 90-1252 (10th Cir. Apr 3, 1992)

The court holds that the U.S. Army Corps of Engineers (the Corps) did not violate the National Environmental Policy Act (NEPA) and Federal Water Pollution Control Act (FWPCA) §404 when it issued a permit to allow construction of the Homestake II water project in the Holy Cross Wilderness Area, in the White River National Forest outside Denver, Colorado, before completion of studies on mitigation and adverse impacts on wetlands. The court first holds that the Corps did not err in adopting the U.S. Forest Service's (Service's) Environmental Impact Statement (EIS), rather than completing its own EIS, in order to fulfill its obligation to take a hard look at the environmental consequences of the project. The Service's EIS adequately discussed wetland impacts, and there was no need for a detailed mitigation plan because the EIS concluded that there would be no adverse impacts. The court holds that the Corps did not violate NEPA by not complying with regulations concerning unavailable or incomplete information as to reasonably significant adverse impacts, because any need for such additional information was obviated by the Corps' decision to issue the permit with the specific condition that there be no wetlands losses. The court also holds that the Corps' decision not to supplement the Service's EIS with studies and information provided by its experts was not arbitrary or capricious, because it was reasoned and based on its evaluation of the significance of the new information. The court next holds that the Corps' permitting decision did not violate the FWPCA and its applicable regulations, because the Service's EIS and the Corps' discussion of alternatives were adequate, and the Corps acted with sufficient information to evaluate the economics of the project and to make the required determination of the public and private need for the project. Lastly, the court holds that the Corps did not engage in an impermissible "permit first—mitigate later" plan in violation of the FWPCA, because though the normal order of events is not what occurred in this case, the permit specifically stated that no wetlands losses would be allowed and that a mitigation plan would have to be developed to ensure that result.

Counsel for Plaintiff-Appellant
Lori Potter
Sierra Club Legal Defense Fund
1631 Glenarm Pl., Ste. 300, Denver CO 80202
(303) 623-9466

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

Before ANDERSON and BALDOCK, Circuit Judges, and A.J. ANDERSON,^* District Judge.