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Friends of the Earth v. Hintz

Citation: 17 ELR 20030
No. No. 84-4176, 800 F.2d 822/25 ERC 1048/(9th Cir., 09/12/1986)

The court holds that the Corps of Engineers (Corps) lawfully issued a Federal Water Pollution Control Act (FWPCA) § 404 permit allowing a logging company to fill 17 acres of a wetland for log storage and sorting, and the Corps was entitled to consider off-site mitigation measures in its decision not to prepare an environmental impact statement (EIS). The court first holds that the district court properly limited its review of the Corps' action to considering the administrative record. The 639-page record adequately explains the Corps' decision and shows that the relevant factors were weighed before the permit was issued.

The court holds that the Corps properly followed its regulations and the Environmental Protection Agency's (EPA's) guidelines promulgated under FWPCA § 404(b) that require the Corps to conduct a public interest review to balance the benefits of the proposal against the damages to the wetlands resource. The court holds that the Corps' determination that the log storage facility was water dependent was not arbitrary and capricious. Review of the administrative record reveals that a substantial exchange of information between all parties took place and that other federal agencies agreed the project was water dependent. The court then holds that the Corps properly applied EPA's § 404(b) guidelines which do not allow the issuance of a $404 permit for dredge and fill of a wetland if there is a practicable alternative that would have a lesser impact. Although alternatives were identified, none were proven to be practicable when logistical feasibility and cost considerations were taken into account.

The court next holds that the issue of the effect on water quality that the fill and logging activity imposes is foreclosed by the certification that the activities complied with FWPCA § 404. The court holds that the Corps' decision to issue the $404 permit was not an unexplained reversal of a former position, but the rational culmination of a year and a half of investigation. The court further holds that the Corps is permitted to rely on information provided by the permit applicant in determining both the effect of the activities on water quality and the suitability of alternative sites for the activity, and that the Corps fulfilled its duty to independently verify the applicant's information. The court holds that the the Corps' decision not to prepare an EIS was reasonable. The court also holds that the issue of the contingency contained in the permit is moot since the contingency was satisfied. The court then holds that off-site mitigation may serve to relieve the Corps from the obligation of preparing an EIS. The Corps' regulations explicitly allow off-site mitigation, and the Council on Environmental Quality's regulations suggest the use of such mitigation measures. Although the regulations do not specifically excuse preparation of an EIS, they do not require one.

Counsel for Plaintiffs-Appellants
Michael W. Gendler
Bricklin & Gendler
1424 4th Ave., Seattle WA 98101
(206) 621-8868

Counsel for Defendants-Appellees
Charles Goldmark
Wickwire, Lewis, Goldmark & Schorr
500 Maynard Bldg., 119 First Ave. S., Seattle WA 98104
(206) 622-9603

Before Reinhardt and Beezer, JJ.