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Save the Dunes Council v. Froehlke

Citation: 2 ELR 20356
No. No. 72 S 12, (N.D. Ind., 06/21/1972)

The Corps of Engineers does not have the authority under the Rivers and Harbors Act of 1899 and the National Environmental Policy Act to prohibit the construction of a power plant on land filled with its permission in 1952. However, a Corps discharge permit and NEPA review will be necessary before the plant may commence operation. Under the Submerged Lands Act the Corps retains jurisdiction over filled lands, but the Rivers and Harbors Act of 1899 does not contemplate further Corps proceedings concerning departures from a former landfill permit, other than those enumerated in the statute. Although plaintiffs' mandamus suit to force consideration of the environmental effects of the plant before it is constructed is dismissed, the power company and the Corps are now aware of the existence of objections to the plant and invest in it further at their own risk. This investment should not be permitted to prejudice the protection of environmental values mandated by NEPA in future decisionmaking.

Counsel for Plaintiffs
Calvin Sawyer
1 First National Plaza
Chicago, Illinois 60600

Donald Dreyfus
Suite 588-604
Broadway
Gary, Indiana 46402

Counsel for Defendants
Richard Keiser U.S. Attorney
Federal Building
South Bend, Indiana

Fred Eichorn
5243 Hohmon Avenue
Hammond, Indiana 46320