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National Wildlife Fed'n v. Marsh

Citation: 14 ELR 20172
No. No. 83-8193, 721 F.2d 767/20 ERC 1158/(11th Cir., 12/19/1983)

The Eleventh Circuit rules that municipal appellees violated the National Environmental Policy Act (NEPA) by failing to prepare a supplemental environmental impact statement (EIS) on plans to mitigate an artificial lake's impact on wetlands, and that the Army Corps of Engineers violated § 404 of the Federal Water Pollution Control Act (FWPCA) by issuing a permit for the creation of the lake without requiring applications for the mitigation projects, which may also require § 404 permits. The court first affirms the lower court's ruling that the Department of Housing and Urban Development's (HUD's) approval of the project did not violate the requirement of the Housing and Community Development Act that such projects be shown to benefit principally [14 ELR 20173] low- and moderate-income persons. A thorough review of the Act's legislative history and administrative interpretations shows that HUD retains discretion to waive the "principal benefit requirement," and demonstrates that the agency lawfully waived that requirement in this case. On the NEPA issue, the court notes an EIS must be supplemented whenever changes in a project will have significant effects on the environment, even if those effects will be beneficial. Further, an agency decision not to supplement an EIS will be overturned only if it is unreasonable. After the preparation of the original EIS, the agency changed its plans for the disputed artificial lake project to create six partially flooded wooded preserves to mitigate wetland losses. The court determines that this change will result in significant environmental effects beyond those analyzed in the original EIS, and therefore that it was unreasonable for the municipal sponsor of the project and preparer of the EIS not to supplement the EIS. Under § 404 of the FWPCA, the Corps of Engineers had determined that a permit for the proposed lake could be issued prior to resolving the close question of whether separate permit applications would be required for construction of the six mitigation areas. The court rules that appellants have demonstrated the substantial likelihood that the mitigation areas will need § 404 permits. Since the environmental acceptability of the entire project hinges on the construction of the mitigation areas, the Corps' grant of the lake permit ran the risk that the lake would be built while the mitigation areas would not, and was therefore no abuse of discretion.

In a dissenting opinion, one member of the panel takes exception to the majority's interpretation of the "principal benefit requirement" of the Housing and Community Development Act.

Counsel for Appellants
Emmett B. Lewis
Miller & Chevalier
655 15th St. NW, Washington DC 20005
(202) 626-5800

Counsel for Appellees
R.D. Daniels
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2724

James S. Stokes
Alston & Bird
35 Broad St., Atlanta GA 30335
(404) 586-1500

Before KRAVITCH and JOHNSON, Circuit Judges, and LYNNE*, District Judge.