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Sylvester v. Corps of Eng'rs

Citation: 19 ELR 21348
No. No. 89-15592, 882 F.2d 407/30 ERC 1331/(9th Cir., 08/11/1989) Denial of preliminary injunction aff'd after remand

The court holds that the Army Corps of Engineers complied with the Federal Water Pollution Control Act (FWPCA), the National Environmental Policy Act (NEPA), and the Corps' own regulations when it issued a FWPCA § 404 permit authorizing a land development company to fill 11 acres of wetlands to build a golf course. In its environmental assessment, the Corps did not impermissibly skew its evaluation of practicable alternatives in favor of the developer by accepting the developer's research and by defining the project's purpose as the construction of an on-site, 18-hole golf course. The court first holds that the Corps' refusal to consider alternative locations for the golf course was neither arbitrary nor capricious because the cost and logistics of reasonable and practicable alternatives may be considered and the Corps must consider the applicant's purpose. Although an applicant cannot define a project in order to preclude alternative sites and alternative sites do not have to accomodate elements of a project that are merely incidental to an applicant's purpose, the Corps properly accepted the developer's genuine and legitimate conclusion. The Corps' refusal to consider other reasonable and practicable alternatives required consideration of the relationship of the golf course to the entire project. However, consideration of that relationship did not federalize the entire project. The court next holds that because the Corps' regulations require it to consider more factors than NEPA regulations require, the Corps properly measured the benefit of the golf course in terms of its contribution to the project's economic viability. The Corps did not weigh the benefits of the entire project against the environmental impacts of the golf course, but only weighed the benefits of the golf course to the project. Finally, the court holds that because the Corps' action was neither arbitrary nor capricious, no irreparable harm to the wetlands will occur as a result of denying a preliminary injunction.

[A previous opinion in this litigation is published at 19 ELR 20652. Briefs in previous case are digested at ELR PEND. LIT. 66034.]

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

Counsel for Defendants-Appellees
John M. Collette
Collette & Erickson
43rd Fl., Bank of America Ctr., 555 California St., San Francisco CA 94104-1791
(415) 788-4646

Elizabeth Ann Peterson
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-5396

Sneed (before Choy and Noonan, JJ.):