ELR Citation: ELR 21575
No(s). C92-0695-L (W.D. Ky. Jul 1, 1993)

The court holds that it does not have jurisdiction under the National Environmental Policy Act (NEPA) or the Endangered Species Act (ESA) to review a county plan to construct a sewage system that has not received direct federal funds, may only indirectly receive federal funds in the future, and has obtained federal agency participation on a voluntary basis. The court holds that the county plan was not a major federal action sufficient to invoke NEPA jurisdiction. The federal government had provided no funds directly or indirectly. The possibility that federal funds will be requested in the future to expand the treatment plant that will receive the wastewater flowing from the planned sewage system does not render this a major federal action under NEPA. Moreover, the voluntary preparation and funding of an environmental impact statement (EIS) by the U.S. Environmental Protection Agency does not establish the federal presence required by NEPA when the agency retains no responsibility for, or discretionary power over, the project. The court holds that the ESA does not confer jurisdiction over federal defendants because the project did not receive federal authorization, has received no federal funding, and is not being carried out by federal agencies. The court holds that it lacks jurisdiction over the state environmental protection agency under the ESA because the agency has neither engaged in a "cooperative agreement" with a federal agency nor received federal funds with respect to the construction of this sewage system. The court does have jurisdiction over the local metropolitan sewage district to review a claim that the district's actions constitute a taking under the ESA that requires it to perform a supplemental EIS. Finally, because construction on the project has already begun, the court limits discovery requests to addressing the question of whether the impact on endangered species is so severe and so irreparable as to outweigh the strong public interest in clean water and proper treatment of public waste.

Counsel for Plaintiff
Gregory L. Smith, Arthur L. Williams
Woodward, Hobson & Fulton
2500 First National Tower
101 S. 5th St., Louisville KY 40202
(502) 581-8000

Counsel for Defendants
Richard A. Dennis, Ass't U.S. Attorney
U.S. Attorney's Office
Bank of Louisville Bldg.
510 W. Broadway, 10th Fl., Louisville KY 40202
(502) 582-5911
Frank G. Simpson III
Pedley, Ross, Zielke & Gordinier
1150 Starks Bldg., 455 S. 4th Ave., Louisville KY 40202
(502) 589-4600