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National Audubon Soc'y v. Hartz Mountain Dev. Corp.

Citation: 14 ELR 20724
No. No. 83-1534D, (D.N.J., 10/24/1983)

The court rules that the Corps of Engineers did not violate the National Environmental Policy Act (NEPA) or the Environmental Protection Agency's (EPA's) Federal Water Pollution Control Act (FWPCA) § 404(b)(1) guidelines in granting an FWPCA § 404 permit to fill wetlands in the Hackensack Meadows, New Jersey as a prelude to commercial development. The court first holds that the Corps did not violate NEPA by failing to consider the combined impact of the commercial development and a proposed associated residential development in deciding whether the project required an environmental impact statement (EIS). The Council on Environmental Quality (CEQ) NEPA regulations, the EPA FWPCA § 404(b)(1) guidelines, and the Corps § 404 regulations all require the Corps to consider cumulative impacts of present and likely future projects. Although the developer apparently split the development into commercial and residential projects to avoid the EIS requirement, the court holds that the developer's intent is not dispositive. After examining the case law, the court concludes that if the agency finds that a project has independent economic viability, the agency may consider the project independently. The CEQ NEPA regulation on cumulative impacts simply echoes the statute and the case law. The Corps was not arbitrary or capricious in considering only the impacts of the commercial project in determining that an EIS was not required.

The court next holds that the Corps' assessment of the project's mitigation plan, which contributed to the Corps' conclusion that no EIS was needed, was not arbitrary or capricious. Although other government agencies strongly disagree with the Corps' assessment, there is ample evidence in the record to support the Corps' findings.

The court also upholds the Corps' finding that the impacts of the project would not be significant enough to require an EIS under NEPA. The Corps comprehensively reviewed the impact of the proposal, as required by CEQ regulations, and its determination of no significant impact is reasonably supported by the record.

Finally, the court rules that the project meets the requirement of the EPA § 404(b)(1) guidelines that there be no practicable, less damaging alternative to the proposed discharge. Since the proposed project is not water-dependent, the regulations raise a presumption that praticable alternatives exist. The alternatives proposed by plaintiffs are either too indefinite to be analyzed or impracticable. The no-action alternative was rejected because it would not achieve the basic purpose of the proposed activity. Hartz and the Corps considered alternative sites for the project throughout northern New Jersey and found none of them practicable. The Corps' conclusion that there are no practicable alternatives is supported by the record.

Counsel for Plaintiffs
Gordon N. Litwin
60 Park Pl., Newark NJ 07102
(201) 642-1801

Counsel for Defendants
Kenneth D. McPherson
Waters, McPherson & McNeill
32 Journal Sq., Jersey City NJ 07306
(201) 798-5000

R. Sarah Compton
Collier, Shannon, Rill & Scott
Suite 308, 1055 Thomas Jefferson St. NW, Washington DC 20007
(202) 342-8400

Mary Catherine Cuff, Ass't U.S. Attorney
Fed. Bldg., Room 502, 970 Broad St., Newark NJ 07102
(201) 645-2155

Debevoise, J. from the bench