ELR Citation: ELR 20912
No(s). 73-1570 (4th Cir. Aug 23, 1973)

The court upholds a Corps of Engineers NEPA threshold determination that the issuance of a permit to a private developer for construction of a fishing pier and boat basin on an island of North Carolina's Outer Banks did not constitute a major federal action significantly affecting the environment. The project is wholly funded by private sources, has not been federally planned or designed, and will be constructed by a private contractor; issuance of the permit alone is not a major federal action. The record also indicates that environmental damage willbe extremely limited, and that other such piers already exist in the area. The Corps did not abuse its discretion in finding that an environmental impact statement was unnecessary, and the court affirms a lower court's refusal to grant an injunction pendente lite.

A dissent argues that the Corps' decision should not be accorded a presumption of validity since no written findings concerning the necessity of an EIS were ever filed. The Corps' regulations require an EIS for any project which could have significant adverse environmental effects, and the current record is insufficient to eliminate the possibility of such effects from this project. The injunction should be granted and trial held on the merits to determine whether an EIS is necessary.

For the district court opinion see 3 ELR 20585.

Counsel for Plaintiffs
Norman B. Smith
Smith, Patterson, Follin & Curtis
816 Southeastern Building
Greensboro, NC 27401

Counsel for Defendants
John R. Hughes
P.O. Box 345
Shallotte, NC 28459

Henry C. Boshamer
105 North 10th Street
Morehead City, NC 28557

Peter R. Steenland
Rm. 2335
Department of Justice
Washington, DC 20530

John E. Lansche Asst. U.S. Attorney
P.O. Box. 26897
Raleigh, NC 27611