Jump to Navigation
Jump to Content

Huntington, Town of v. Marsh

Citation: 19 ELR 20192
No. No. 88-6095, 859 F.2d 1134/28 ERC 1640/(2d Cir., 10/19/1988)

The court holds that the Marine Protection, Research, and Sanctuaries Act (MPRSA), rather than the Federal Water Pollution Control Act (FWPCA), applies to the designation of a new dredged material disposal site in Long Island Sound, and that the Corps of Engineers' environmental impact statement (EIS) on the site is inadequate. In 1980, Congress amended the MPRSA's ocean dumping provisions (the Ocean Dumping Act) to require that dumping of dredged material in Long Island Sound by federal agencies, or by private parties whose projects exceed 25,000 cubic yards of waste, be subject to the Act's environmental testing criteria. These criteria are more stringent than those promulgated under the FWPCA, which regulates the Corps' dredge waste permit program for inland waters. The Corps in this case recommended that a new dumping site in the Sound be established for the dredged material of 23 parties whose cumulative waste would amount to more than 25,000 cubic yards. The court first holds that the 1980 amendment applies to the designation of a new dumping site in the Sound. Although the amendment is not clear as to whether it encompasses designation of new sites, the regulatory scheme under the FWPCA and the Ocean Dumping Act for permit evaluation leads to this conclusion. The FWPCA regulations refer the Corps to the Environmental Protection Agency's site designation regulations, and the Ocean Dumping Act regulations establish procedures for the review of applications for permits at designated dumping siteS. The court rejects the Corps' argument that the Ocean Dumping Act permit regulations apply only to the evaluation of permits and not to the designation of a new site. Moreover, Congress specifically intended to prohibit private dredgers from evading additional testing requirements by breaking a large project involving more than 25,000 cubic yards into smaller pieces.

The court then holds that the EIS submitted by the Corps inadequately analyzed the types, quantities, and cumulative effects of spoil to be dumped at the proposed site as required by the Ocean Dumping Act. Data from an earlier programmatic federal study is insufficient to permit an informed site designation decision, and the vast bulk of material proposed to be dumped at the site was not analyzed. The Corps foresaw the possibility of two large federal projects using the site, yet the EIS made no mention of at least one of these projects. The court holds that the EIS is inadequate under the National Environmental Policy Act's (NEPA's) requirements for comprehensive evaluation of a proposal and its alternatives as incorporated into the Council on Environmental Quality's (CEQ's) NEPA regulations. The Corps improperly conceived of its project only as the designation of a disposal site, rather than viewing site designation and permit issuance as a unit. The court holds that the proposed site designation and the proposed uses of the site are connected within the meaning of the CEQ regulations, since the site has no utility apart from its planned usage as a disposal site. The court also holds that the Corps violated NEPA by not analyzing the cumulative effects of waste disposal in its EIS. Since the district court did not expressly make a determination as to the appropriateness of an injunction under the traditional balancing test, the court remands the case for such a determination.

Counsel for Plaintiffs-Appellees
Joseph D. Pizzurro
Curtis, Mallet-Prevost, Colt & Mosle
101 Park Ave., New York NY 10178
(212) 696-6000

Counsel for Defendants-Appellants
Robin L. Greenwald, Ass't U.S. Attorney
U.S. Courthouse, 255 Cadman Plaza East, Brooklyn NY 11201
(212) 330-7106

Before Mahoney and Cedarbaum,* JJ.