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Creppel v. Corps of Eng'rs

Citation: 19 ELR 20134
No. No. 77-25, (E.D. La., 06/20/1988)

The court rules that the Environmental Protection Agency's (EPA's) definition of "unacceptable adverse effect" under Federal Water Pollution Control Act (FWPCA) § 404(c) is valid, and holds that EPA's decision to veto a flood control project pursuant to § 404(c) was not arbitrary or capricious. The court first upholds EPA's regulation defining "unacceptable adverse effect" as an impact likely to result in significant environmental damage. Neither the plain language of the statute nor the legislative history indicates that EPA must balance environmental and economic concerns in making a § 404(c) determination. The court next holds that federal flood control projects authorized under 33 U.S.C. § 701(c) do not override EPA's FWPCA § 404(c) veto authority, since Congress has not unequivocally elevated flood control over environmental concerns. The court holds that EPA's decision to exercise its veto authority was not arbitrary or capricious. The agency followed proper procedures by adequately summarizing the facts underlying its proposed determination and considering the corrective action proposed by plaintiffs. That the veto might work a taking does not render EPA's action invalid, but rather gives rise to a possible claim for compensation under the Tucker Act. Furthermore, EPA's regulations do not require that § 404(c) hearings be conducted by a board with industrial or local representation. In addition, there was adequate evidence tosupport EPA's finding that the project would have an unacceptable adverse effect on shellfish beds, fishery areas, wildlife, and recreational areas. Finally, the court holds that challenges to various requirements of the Army Corps of Engineers and EPA with respect to the project are either time-barred or fail to demonstrate that the agencies' actions were arbitrary or capricious.

Counsel for Plaintiffs
Harold L. Molaison
230 Huey P. Long Ave., Gretna LA 70053
(504) 366-4336

Counsel for Defendants
Michael M. Wenig, David E. Dearing
Environmental Defense Section
U.S. Department of Justice, Washington DC 20026
(202) 786-4787