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Save the Bay v. Corps of Eng'rs

Citation: 10 ELR 20185
No. No. 79-1432, 610 F.2d 322/14 ERC 1456/(5th Cir., 01/24/1980)

The court affirms the ruling of a United States magistrate, to which the case was transferred by the district court, that the issuance by the Corps of Engineers of a permit to construct an outfall pipe from a manufacturing plant is not a major federal action requiring the preparation of an environmental impact statement (EIS) under the National Environmental Policy Act (NEPA). After ruling that appellants have standing to bring the suit, the court determines that the standard of review of the agency's decision not to prepare an EIS is one of reasonableness. The court finds that since the construction of the outfall pipe, for which a national pollutant discharge elimination system (NPDES) permit had already been issued by state authorities, had been determined by several government agencies not to entail significant environmental impacts, it was reasonable for the Corps of Engineers to concur in this judgment. Moreover, it was not necessary for the Corps to consider the environmental impact of the manufacturing plant in its entirety. The issuance of the Corps permit is sufficiently distinct from the construction of the plant so as not to require consideration of the latter in determining whether to prepare an EIS under NEPA.

Counsel for Appellants
Earl L. Denham
Levi, Wilson & Denham
P.O. Box 596, Ocean Springs MS 39564
(601) 875-1234

Counsel for Federal Appellees
Nancy B. Firestone
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2757

Before BROWN, TJOFLAT and GARZA, Circuit Judges.