ELR Citation: ELR 20620
No(s). 83-1885 (W.D. La. Sep 20, 1984)

The court holds that the Corps of Engineers complied with the National Environmental Policy Act (NEPA) and the Federal Water Pollution Control Act §404 regulatory guidelines when it issued §404 permits to clear 5,000 acres of bottomland hardwood wetlands in Louisiana for soybean production. Reviewing the Corps decision not to prepare an EIS for issuance of the permits based on its finding of no significant impact under the reasonableness standard, the court holds that the Corps engaged in precisely the type of analysis required by NEPA. The Corps considered the environmental impacts and took steps to mitigate them. The court rejects plaintiffs' argument that the environmental impacts of an activity are inherently significant, and thus require an EIS, whenever large tracts of wetlands are involved. The Corps may consider the fact that all wetlands are not equally valuable when making permit decisions.

The court rules that the Corps may issue §404 permits to clear wetlands for non-water dependent activities, including agricultural use, if practicable alternatives to the proposed activity are not available. The court rules that the Corps is not required to evaluate these alternatives based exclusively on the goal of reducing environmental impacts, but must also consider the objectives of the applicant's project. Thus, the Corps' decision that no practicable alternatives existed in view of the applicants' objectives of increased soybean production and higher profits was not arbitrary and capricious.

The court next examines whether the Fifth Circuit's decision in Avoyelles III, holding that land clearing activities on forested wetlands are subject to §404 jurisdiction, compels the Corps to prepare a supplement to its 1981 EIS for a flood control project. The Corps had assumed in its EIS that the forested wetlands were outside its jurisdiction and therefore failed to consider the environmental effects of the clearing of 17,000 acres of those lands. Nevertheless, the court holds that the decision was not a "significant new circumstances or information" requiring a supplemental EIS because it revealed no new scientific or technical information.

Counsel for Plaintiffs
James T.B. Tripp
Environmental Defense Fund, Inc.
444 Park Ave. South, New York NY 10016
(212) 686-4191

Michael Osborne
Osborne, McComiskey & Richardson-Harp
3420 Prytania St., New Orleans LA 71109
(504) 891-4418

Counsel for Defendants
Henry H. Black, Ass't District Counsel
U.S. Army Corps of Engineers
Vicksburg, MI 39180
(601) 634-5000

Lawrence Moon, Ass't U.S. Attorney
705 Jefferson St., Lafayette LA 70501
(318) 687-6618

Henry Habicht II, James M. Spears, Elizabeth Stein
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2701