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Natural Resources Defense Council v. Callaway

Citation: 5 ELR 20640
No. No. 75-7048, 524 F.2d 79/8 ERC 1273/(2d Cir., 09/09/1975)

The Second Circuit Court of Appeals reverses and remands a lower court's dismissal of a complaint alleging that the Navy's dumping of polluted dredge spoil at the New London dump site in Long Island Sound violates both NEPA and the Federal Water Pollution Control Act Amendments of 1972. In view of the savings clause in § 505(e) of the FWPCA, the district court had jurisdiction under either the Administrative Procedure Act or the general federal question statute to reach the merits of plaintiffs' claim that the permit issued by the Corps of Engineers for this dumping vioated § 404(b), even though 60 days notice was not given prior to filing suit as required by § 505(b). While EPA's Ocean Dumping Criteria are not nominally applicable to dumping in inland rather than ocean waters, the Corps' relicable to dumping in inland rather than ocean waters, the Corps' reliance on the Criteria to support its selection of the New London site made the standards applicable, and the record contains evidence that this project violates the criteria in that dumped material may be carried by prevailing currents into nursery, fishery or shoreline areas. Designation of the Navy as the 'lead agency' for impact statement preparation by mutual agreement between the Navy and the Corps of Engineers was proper, and partial delegation of this duty to an independent consultant was not illegal since the consultant had no interest in the project. The final EIS filed by the Navy was inadequate, however, because it did not consider the prospective cumulative impacts of this project in conjunction with other pending proposals for dumping in the same area. In addition, even when judged by the "rule of reason" standard, the EIS as supplemented failed to discuss and evaluate alternative dump sites and to explain the Navy's choice of the New London site. Ruling that further dumping should not be permitted until the FWPCA claim has been resolved and the serious deficiencies of the EIS remedied, the court of appeals directs the lower court to issue a temporary injunction to maintain the status quo.

Counsel for Plaintiffs-Appellants
Albert K. Butzel
Peter J. Milock
Berle, Butzel & Kass
425 Park Ave.
New York, N.Y. 10022

Haynes N. Johnson
Parmelee, Johnson & Bollinger
460 Summer St.
Stamford, Conn. 06901

Counsel for Intervenor-Appellant State of New York
Louis J. Lefkowitz Attorney General
Samuel A. Hirshowitz First Asst. Attorney General
Philip Weinberg
John F. Shea, III Asst. Attorneys General
State Capitol
Albany, N.Y. 12224

Counsel for Defendants-Appellees
Wallace H. Johnson Asst. Attorney General
Jacques B. Gelin
Kathryn A. Oberly
Department of Justice
Washington, D.C. 20530