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Sylvester v. Corps of Eng'rs

Citation: 19 ELR 20652
No. Nos. 88-15376 et al., 884 F.2d 394/30 ERC 1325/(9th Cir., 03/27/1989, 08/22/2089)

The court rules that the Corps of Engineers' regulation limiting the scope of the review process under the National Environmental Policy Act (NEPA) for federal projects linked to private activities is entitled to deference, and holds that the Corps' decision to issue a Federal Water Pollution Control Act (FWPCA) § 404 permit for a golf course without considering the environmental effects of related private development activities was not improper. A developer sought a permit under § 404 of the FWPCA to build a golf course. Although the planned golf course was designed to be part of a larger development including ski facilities and a resort village, the Corps' environmental assessment considered only the impacts of the golf course. Plaintiff challenged the Corps' NEPA regulation restricting review of private development activities undertaken in conjunction with unambiguously federal actions. The court holds that the Corps' regulation is entitled to judicial deference, since NEPA does not express a clear congressional intention on the scope of environmental review and the Corps' interpretation is a permissible reading of the statute. Although the Corps does not administer NEPA, its regulation has been reviewed and approved by the Council on Environmental Quality (CEQ) pursuant to Clean Air Act § 309. Although NEPA's legislative history indicates that agencies should not adopt excessively narrow interpretations of the statute's mandates, theCorps' interpretation strikes an acceptable balance between NEPA's requirements and the Corps' jurisdictional limitations. Deference to an agency regulation is appropriate even if it contradicts an earlier agency regulation, as long as the present interpretation of the statute is reasonable. The Corps' regulation does not conflict with the CEQ's NEPA regulations, since both require the Corps to consider secondary and cumulative effects of federal actions. The court also holds that the Corps' decision not to consider the environmental effects of the entire resort development does not violate previous Ninth Circuit case law, since it does not appear that the golf course is necessary to the existence of the ski resort.

[Briefs in this case are digested at ELR PEND. LIT. 66034.]

Counsel for Defendants-Appellants
Peter R. Steenland Jr., Elizabeth Ann Peterson
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-2000

Counsel for Defendant-Appellant/Cross-Appellee
John M. Collette
Collette & Erickson
43rd Fl., Bank of America Center, 555 California St., San Francisco CA 94104-1791
(415) 788-4646

Counsel for Plaintiff-Appellee
Terry J. Houlihan
McCutchen, Doyle, Brown & Enersen
Three Embarcadero Center, San Francisco CA 94111
(415) 393-2000

Before Choy and Noonan, JJ.