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Mahelona v. Hawaiian Elec. Co.

ELR Citation: 7 ELR 20031
Nos. No. 76-0130, 418 F. Supp. 1328/9 ERC 1625/(D. Haw., 08/27/1976)

The Army Corps of Engineers failed to comply with the requirements of NEPA in connection with its issuance of a permit for construction of a power plant's cooling water discharge facility in navigable waters. The planned design includes erection of a concrete wall across a prime surfing site. The Corps' decision not to prepare an environmental impact statement was erroneous: the fact that such action would be costly and would delay urgently needed expansion of the power plant was no justification, and the agency was clearly mistaken in contending that there would be no significant environmental impact from the discharge facility. Section 511(c)(1) of the Federal Water Pollution Control Act Amendments of 1972 exempts EPA from any obligation to prepare an impact statement in conjunction with its issuance of a National Pollutant Discharge Elimination System (NPDES) permit to the plant which contemplated construction of the discharge facility. However, the legislative history of §511(c)(2) shows that the Corps' action regarding this project is not similarly exempt from NEPA's requirements. Rejecting defendants' assertion that this suit is barred by laches, the court dissolves a previously issued preliminary injunction after the parties reach an agreement whereby defendants will attempt to construct a new surfing site near the original location in exchange for dismissal of this action.

Counsel for Plaintiffs
John F. Schweigert
Lawrence D. McCreery
Brown & Bettencourt
Suite 1100 Financial Plaza
130 Merchant St.
Honolulu HI 96813
(808) 521-3491

Counsel for Defendant Hawaiian Electric Company
Hugh Shearer
David L. Fairbanks
Goodsill, Anderson & Quinn
P.O. Box 3196
Honolulu HI 96801
(808) 531-5066

Counsel for Federal Defendants
Harold M. Fong, U.S. Attorney
Stanley D. Tabor, Asst. U.S. Attorney
320 Federal Post Office Bldg.
Honolulu HI 96809
(808) 546-7170

Counsel for State Defendants
Ronald Y. Amemiya, Attorney General
Laurence K. Lau, Deputy Attorney General
State Capitol
Honolulu HI 96813
(808) 548-4740