ELR Citation: ELR 20625
No(s). 01-35922 (9th Cir. Apr 29, 2002)

The court affirms a district court decision denying a county's request for a preliminary injunction to prevent a city from continuing the expansion of its municipal water supply reservoir along the Nestucca River in Oregon. After the U.S. Army Corps of Engineers determined that the project would not have a significant impact on the environment, it issued an environmental assessment (EA) and finding of no significant impact and granted the city's request for a Clean Water Act (CWA) §404 dredge and fill permit. The county argued that the EA failed to describe mitigation measures and to adequately evaluate alternatives. The court first holds that while the Corps was required to develop mitigation measures to a reasonable degree, it was not required to develop a complete mitigation plan detailing the precise nature of the mitigation measures, nor were the mitigation measures intended to completely compensate for the adverse environmental impacts. Here, the Corps adequately described specific mitigation measures in the EA and CWA §404 permit that require the city to comply with dam safety regulations and to take certain steps to prevent erosion at wetland erosion sites and compensate for wetland loss caused by reservoir expansion. Moreover, the Corps considered a number of alternatives in evaluating the city's water needs. Because the Corps took the requisite hard look at the expansion project, the county's motion for a preliminary injunction was properly denied.

Counsel for Plaintiff
Marianne C. Dugan
Western Environmental Law Center
1216 Lincoln St., Eugene OR 97401
(541) 485-2471

Counsel for Defendant
Thomas C. Lee, Ass't U.S. Attorney
U.S. Attorney's Office
1000 SW Third Ave., Ste. 600, Portland OR 97204
(503) 727-1000

Politz,^* J. Before Canby and Kleinfeld, JJ.

* Honorable Henry A. Politz, Senior United States Circuit Judge for the Fifth Circuit Court of Appeals, sitting by designation.