ELR Citation: ELR 20333
No(s). s. 83-2114 et al (10th Cir. Mar 26, 1985)

The court holds that the Corps of Engineers did not exceed its authority when it denied appellants a nationwide permit under Federal Water Pollution Control Act (FWPCA) §404 for construction of an earthen dam on Wildcat Creek in Colorado based on potential adverse downstream impacts of the depleted water flow on the critical habitat of the whooping crane, an endangered species. After observing that the Endangered Species Act (ESA) requires agencies to consider the environmental impacts of their projects on endangered species and their habitat, the court addresses the scope of the environmental impacts that the Corps may consider when issuing FWPCA §404 permits. The court holds that the Corps can consider downstream effects of changes in water quantity as well as on-site changes in water quality. Further, it can consider both the direct and indirect effects of discharges on endangered species. Therefore, the Corps acted within its authority by not issuing the nationwide permit based on its finding of an indirect adverse impact on the whooping crane. Even if denial of the permit is inconsistent with the congressional policy in FWPCA §101(g) that state authority to allocate water not be impaired, the Corps acted within its authority because a general policy statement cannot nullify express requirements that it consider changes in water quality when issuing nationwide permits. The court notes that it would be premature to decide whether the Corps' may effectively deny Colorado its rights under the South Platte River Compact, since the Corps may yet approve the dam under an individual permit. Also, the court notes that it need not decide whether the project will, in fact, have an adverse impact on the whooping cranes. Appellants had the burden of proving no adverse impact to the agency, and the record supports the Corps' finding of adverse impact. The Corps therefore properly required appellants to proceed under the individual permit procedure.

[An earlier opinion in this case appears at 13 ELR 21091.]

Counsel for Appellants
Timothy J. Flanagan, James R. McCotter, Bryant O'Donnell
Kelly, Stansfield & O'Donnell
550 15th St. NW, Denver CO 80202
(303) 825-3534

Counsel for Intervenors-Appellants
Wendy C. Weiss, Ass't Attorney General; Duane Woodard, Attorney General
State Services Bldg., 3d Floor, Denver CO 80203
(303) 866-3611

John M. Sayre, Cregory J. Jobbs Jr., Jeffrey C. Fereday
Davis, Graham & Stubbs
P.O. Box 185, Denver CO 80201
(303) 892-9400

Ward H. Fischer, James E. Ringenberg, William R. Fischer
Fischer, Brown, Huddleson & Gunn
First Tower, 215 W. Oak St., Fort Collins CO 80521
(303) 482-1056

Counsel for Appellee
Myles Flint
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2000

Counsel for Intervenor-Appellee
Jerry L. Jackson
National Wildlife Federation
1412 16th St. NW, Washington DC 20036
(202) 797-6800

Before Logan and Russell,^* JJ.