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Beaufort-Jasper County Water Auth. v. Corps of Eng'rs

Citation: 14 ELR 20732
No. No. 81-984-8, 22 ERC 1410/(D.S.C., 05/10/1984)

The court holds that the Army Corps of Engineers acted reasonably in deciding not to prepare an environmental impact statement (EIS) before issuing permits under Federal Water Pollution Control Act § 404 and Rivers and Harbors Act § 10 for the installation of intake and outfall pipes and a barge unloading and mooring facility for a proposed Milliken & Company chemical plant on the Savannah River. The court first enumerates 36 findings of fact, concluding with the finding that in making the determination that no EIS was required, the Corps adequately considered all relevant environmental facts. After establishing its standard of review, the court holds that, contrary to the Corps' position, the issuance of a permit by the Corps constitutes by itself a major federal action under the National Environmental Policy Act. However, the Coprs' decision, after preparing its environmental assessment, that the proposed work would not significantly affect the quality of the human environment was not arbitrary or capricious. The Corps adequately considered all environmental factors, and while there was conflicting expert testimony on many of them, the court holds that the Corps did not make a clear error in judgment in resolving those differences. The court further holds that the Corps considered all reasonable alternatives; since the project involved was private, the only reasonable alternatives were to issue the permit, issue the permit with conditions, and deny the permit. The Corps properly considered information from Milliken, since it independently verified it, and from other government agencies. Finally, the Corps' denial of a promised, but not otherwise required, opportunity for plaintiff to make last minute comments does not invalidate the Corps' decision.

Counsel for Plaintiffs
David Sive
Winer, Neuberger & Sive
425 Park Ave., New York NY 10022
(212) 421-2150

Joab M. Dowling
Dowling, Sanders, Dukes & Svalina
P.O. Drawer 1027, Beaufort SC 29902
(803) 524-4137

Counsel for Defendants
Heidi M. Solomon Ass't U.S. Attorney
10th Floor, Summerall Bldg., 19 Hagood Ave., Charleston SC 29403
(803) 724-4583

Fred R. Disheroon
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 724-7361