Maryland Conservation Council, Inc. v. Gilchrist
Citation: 17 ELR 20499
No. No. 86-3967, 808 F.2d 1039/25 ERC 1571/(4th Cir., 12/22/1986)
The court holds that construction of a highway through a state park that was established partially with federal funds is a federal action within the meaning of the National Environmental Policy Act (NEPA) but that there is no cause of action under either § 6(f) of the Land and Water Conservation Fund Act or § 4(f) of the Department of Transportation (DOT) Act. The court first holds that construction of the highway is a federal action requiring compliance with NEPA since approval by at least one federal agency will be required for the project to be completed. Since the highway must inevitably cross a park established with a grant of substantial federal funds, approval of the Secretary of the Interior will be required for conversion of park recreation land to other uses. Moreover, if wetlands will be affected, as plaintiffs allege, a permit from the Army Corps of Engineers will be required pursuant to § 404 of the Federal Water Pollution Control Act. Third, if the county seeks additional federal funding for construction of the highway, approval of the Secretary of Transporation will be necessary under § 4(f) of the DOT Act in order for park land to be used for transportation purposes. The court holds that there has been no violation of § 6(f) of the Land and Water Conservation Fund Act, which requires the Secretary of the Interior to approve any conversion from recreational use of park land that was acquired with federal aid, since the county has not made any application to convert park lands to highway use or undertaken any such conversion. The court also holds that there has been no violation of § 4(f) of the DOT Act, since the county has not made any application for federal funds to finance the cost of construction of the highway and the small amount of federal funds used to date is minimal compared to the costs of constructing the entire highway.
Counsel for Appellants
David S. Eggert
Arnold & Porter
1200 New Hampshire Ave. NW, Washington DC 20036
Counsel for Appellees
Diane R. Kramer, Ass't County Attorney
County Attorney's Office
101 Monroe St., Rockville MD 20850
Before WINTER, Chief Judge, ERVIN, Circuit Judge, and BUTZNER, Senior Circuit Judge.