ELR Citation: ELR 20024
No(s). 03-CV-2347 (S.D. Fla. Jan 30, 2009)

A district court held that the U.S. Army Corps of Engineers violated the Clean Water Act (CWA) and the National Environmental Policy Act (NEPA) when it issued permits in 2002 to several limestone mining corporations for the discharge of dredged or fill material into wetlands near the Everglades National Park. In issuing the permits, the Corps determined that the limestone mining project was inherently water dependant for which no practicable alternatives exist. Yet its conclusion that the project is water dependant conflicts with the Corps’ assessment in another permit it issued for a substantially similar limestone mining project. If limestone excavation is not inherently water dependant in one situation, then it is not inherently water dependant in another. Further, nothing in the administrative record indicates that the basic purpose of the project requires siting within wetlands. The record also fails to show that the Corps exercised independent judgment in rejecting all practicable alternatives to the proposed mining. Similarly, the Corps’ environmental impact statement did not meet NEPA’s procedural requirements as to the study of indirect effects and their significance. The Corps’ decision to grant the permits was therefore arbitrary and capricious under NEPA and the CWA and the permits must be set aside.

[A prior decision in this litigation can be found at 38 ELR 20113]