ELR Citation: ELR 20614
No(s). 84-4699 (5th Cir. May 31, 1985)

The court holds that the Corps of Engineers complied with the National Environmental Policy Act and the Federal Water Control Act §404 regulatory guidelines when it issued §404 permits to clear 5,000 acres of bottomland hardwood in Louisiana for soybean production. The court rejects the argument that the Corps interpreted "practicable alternatives" as "profit-maximizing alternatives when it issued the permits to clear bottomland wetlands in Louisiana. While the Corps did consider the economic feasibility of the alternatives, it ultimately chose alternatives that reduced both the economic efficiency and profit of the projects to preserve environmental values. On the other hand, the court rules, the Corps has a duty under the §404 regulatory guidelines to consider the specific objectives of the project when evaluating alternatives to it.

Turning to an analysis of a 1981 environmental impact statement (EIS) prepared by the Corps for a flood control project, the court initially holds that the Environmental Protection Agency (EPA) was not required to review and comment on the EIS under Clean Air Act §309. EPA's silence on the 1981 EIS, which adopted the analysis of a prior EIS that was fully reviewed by EPA, should be construed as continued approval.

The court then rules that the Corps failed to adequately consider whether to prepare a supplemental EIS (SEIS) in light of its decision in Avoyelles III that established Corps §404 authority over land clearing activities on forested wetlands. The decision undermines the Corps' assumption in the EIS that it had no control over such deforestation and its decision not to analyze the impacts of the clearing of 17,000 acres of those lands that would have been cleared regardless of the project.

The court rules that the inquiry into whether to supplement an EIS is not limited to new scientific or technical information. Thus, although Avoyelles III contained no such information, it nevertheless may warrant an SEIS. The court then holds that the Corps' consideration of whether to supplement that EIS was in fact flawed. Plaintiffs have met their two burden in challenging this decision. First, they raised a substantial environmental issue by showing that the project may have significant adverse impacts on the 17,000 acres of forested wetlands. Second, plaintiffs have shown that the Corps acted unreasonably by not considering the effects of Avoyelles III.

Finally, the court holds that the Corps must reconsider its assumption that the 17,000 acres will be cleared regardless of the project. If the Corps determines that there is a reasonable possibility that a significant amount of this land will not receive §404 permits and that the project may adversely affect this land, it must prepare an SEIS.

A dissent would not require the Corps to reconsider its SEIS decision because plaintiffs presented to evidence that the Corps failed to consider Avoyelles III or that the decision would significantly change the conclusion reached in the EIS.

Counsel are listed at 15 ELR 20620.

Before GOLDBERG, RUBIN, and HILL, Circuit Judges.