ELR Citation: ELR 20271
No(s). 91-1764 (8th Cir. Oct 13, 1992)

The court holds that a district court properly suspended a U.S. Corps of Engineers' (Corps') permit for a bridge construction project in Little Rock, Arkansas, and enjoined construction pending the preparation of an environmental impact statement (EIS), because the Corps' conclusion that the project would have no significant impact on the human environment was arbitrary. The city of Little Rock applied to the Corps for a Federal Water Pollution Control Act (FWPCA) §404 permit to place fill in a river tributary related to a city bridge construction project. Although initial draft environmental assessments (EAs) by the Corps revealed likely adverse impacts and the need for special conditions, the final EA contained no mitigating provisions and concluded that the proposed road construction would not have a significant impact on the human environment.

The court first holds that the district court properly reviewed the Corps' action granting the permit under the arbitrary and capricious standard of review. Although the U.S. Supreme Court's decision in Marsh v. Oregon Natural Resources Council, 19 ELR 20749, leaves open the possibility that some questions arising under the National Environmental Policy Act may be reviewed under a different standard, the agency's determination in this case involves mixed questions of fact and law.

Turning to the merits, the court holds that the evidence shows that if the road extension is made without special regulation of its use, the effect would be a large increase in traffic through the area and a significant impact on the quality of the human environment. Although the final EA stated that the city agreed to establish and enforce a 35-mile per hour (mph) speed limit, it did not make this a condition of the permit. However, abundant evidence exists that the city is currently unable to enforce the existing 45-mph speed limit in the area. Thus, the final EA comes close to explicitly acknowledging that without enforcement of the 35-mph speed limit the project would have significant impact on the environment, yet the administrative record shows that the city has not enforced it on the existing road. Moreover, the Corps made clear at argument that under the permit, enforcement of the limit is left entirely to the city. Based on this record, the court holds that the district court did not err or abuse its discretion in concluding that the Corps acted arbitrarily when it said that the project would have no significant impact on the human environment.

Finally, the court declines to remand to the district court for consideration of the city's motion to remand to the agency for further deliberations on the necessity of an EIS. The city's motion is not addressed to the Eighth Circuit Court of Appeals, and does not affect its jurisdiction. The district court has jurisdiction over the motion and the responsibility to decide it.

[The district court decision in this litigation is published at 21 ELR 21406.]

Counsel for Plaintiffs-Appellees
Webster L. Hubbell
Rose Law Firm
120 E. 4th St., Little Rock AR 72201
(501) 375-9131

Counsel for Defendants-Appellants
Thomas M. Carpenter
Little Rock City Attorney's Office
500 W. Markham, Rm. 310, Little Rock AR 72201
(501) 371-4527

Before JOHN R. GIBSON and BEAM, Circuit Judges, and HUNGATE,^* Senior District Judge.