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Reid v. Marsh

Citation: 14 ELR 20231
No. No. C 81-690, 20 ERC 1337/(N.D. Ohio, 01/04/1984)

In a challenge to the Corps of Engineers' issuance of a permit authorizing the channelizing and straightening of a stream, the court remands the matter for reconsideration of the environmental effects of the action under the National Environmental Policy Act (NEPA). The court first rules that the Corps did not err in disclaiming permitting jurisdiction over the project under the Rivers and Harbors Act of 1899 since there is no evidence that the stream is "navigable water" within the meaning of the statute. The court agrees, however, with plaintiffs' claim that the Corps has jurisdiction over the project under § 404 of the Federal Water Pollution Control Act (FWPCA). Because dredging activities result in some discharge of dredged materials back into the waterway, they fall within the Act's definition of the term "discharge," even though such discharges may be de minimus. The court adds, however, that the Corps has jurisdiction only over the discharges and not over the actual deepening and widening of the stream.

Next, the court holds that the Corps complied with the FWPCA in issuing the § 404 permit for the proposed placement of rip-rap on the banks of the stream. The Corps gave the public adequate notice of the proposed issuance of the permit and gave sufficient consideration to the comments received. The Corps District Engineer considered all of the factors specified in the pertinent regulations, including the elements of the "public interest review." However, the Corps' review of the project under NEPA was incomplete because the Corps failed to evaluate the environmental effects of the discharges resulting from the dredging operations. The court therefore remands the matter for reevaluation.

Under the Fish and Wildlife Coordination Act, the court agrees with plaintiffs' argument that the Corps' consultations with the Fish and Wildlife Service were inadequate because both agencies wrongly disregarded the environmental effects associated with the discharges from the dredging operations. But the court declares moot plaintiffs' claim that the Environmental Protection Agency (EPA) violated the Act by not pointing out the Corps' misinterpretation of its jurisdiction. EPA will have a second opportunity to comment on the action as a result of the remand ordered by the court.

Counsel for Plaintiffs
J. Vincent Buchanan
Buchanan & Buchanan
8500 U.S. 23 N., Rising Sun OH 43457
(419) 457-4721

Counsel for Defendants
Patrick J. Foley, U.S. Attorney
307 U.S. Cthse., Toledo OH 43624
(419) 259-6376

Thomas R. Spellerberg, Cty. Prosecuting Attorney
106 E. Market St., Tiffin OH 44883
(419) 447-5132