ELR Citation: ELR 21077
No(s). 87-3854 (5th Cir. Jun 14, 1989)

The court holds that the Army Corps of Engineers did not violate the Rivers and Harbors Act (RHA) or the National Historic Preservation Act (NHPA) in refusing to require permits for construction of a proposed aquarium and riverfront park. The court first holds that neither the Administrative Procedure Act nor the NHPA gives the private plaintiffs a right-of-action against the nonfederal participants in the project. The court holds that plaintiffs have standing to sue the Corps because their historic preservation concerns fall within the zone of interests protected by the NHPA and Corps regulations. The court holds that the Corps' instructions that the developers submit plans for the aquarium and its oversight of the project to ensure that no permit becomes necessary do not trigger the historic impact review requirements of NHPA §106. The court next holds that the Corps did not act arbitrarily or capriciously in deciding that it lacked permitting authority over the aquarium under RHA §10. The aquarium will be landward of the ordinary high water line, and the Corps could reasonably conclude that it will not obstruct navigable capacity within the meaning of §10 even if it might have inconsequential future effects on the river by decreasing bank stability. The court also holds that Corps regulations do not require public interest review when the Corps is deciding whether it has jurisdiction over an activity, but only when it is deciding whether to permit an activity within its jurisdiction. The court next holds that although nationwide RHA permits ordinarily trigger the historic impact review requirements of NHPA §106, they do not do so if they authorize inconsequential activities. The court remands so that the district court may decide whether the Corps reasonably found that the proposed park is covered by its nationwide permit authorizing rehabilitation of existing structures; whether the park is too inconsequential to be subject to §106; and whether the nationwide permit is invalid because the Corps did not evaluate the park's historic impacts under its own regulations.

Counsel for Plaintiffs-Appellants
James G. Derbes
610 Poydras St., Ste. 318, New Orleans LA 70130
(504) 525-9538

James R. Logan
650 Poydras St., Ste. 2850, New Orleans LA 70130
(504) 525-9538

Counsel for Defendants-Appellees
Elizabeth A. Peterson
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-5396

Before POLITZ, GARWOOD, and SMITH, Circuit Judges.