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Donahue v. Marsh

Citation: 17 ELR 20652
No. No. 86-148-Civ-J-16, (M.D. Fla., 03/21/1986)

The court holds that the Army Corps of Engineers did not violate state law or the National Environmental Policy Act (NEPA) in undertaking maintenance dredging of a federally authorized navigation channel and choosing a particular disposal site for spoil material from the project. Plaintiff landowners had requested that the spoil material be placed on their property and public beaches to the north of the channel, rather than on other private property to the south, to mitigate erosion problems on their property and public beaches allegedly arising from the Corps' periodic dredging of the channel. Although an administrative proceeding was pending before one state agency, plaintiffs filed suit to prevent the Corps from commencing the dredging operation based on a permit issued by another state agency. The court first holds that plaintiffs have not demonstrated that they will suffer irreparable injury if the Corps' preferred alternative is followed prior to the conclusion of the administrative proceeding. The Corps has authority superior to the state under the Commerce Clause of the United States Constitution to maintain navigation that is not impaired by its compliance with state requirements. The court holds that the Corps complied with Federal Water Pollution Control Act §404(t) by applying to and receiving from the state the permit for the dredging project. Plaintiffs also had opportunity to object to the permit, since public notice was given of the intent to issue a dredging permit to the Corps. The court holds that the Corps' environmental assessment prepared pursuant to NEPA adequately discussed the environmental impacts of the proposal and the alternatives. Plaintiffs have not shown that the proposed disposal site is an environmental hazard or that their proposed alternative is a reasonable one.

[The Eleventh Circuit's opinion affirming the district court opinion is published at 17 ELR 20654.]

Counsel for Plaintiffs
Donald E. Hemke
Carlton, Fields, Word, Emmanuel, Smith & Cutler
One Harbour Pl., Tampa FL 33602
(813) 223-7000

Counsel for Defendants
John E. Lawler III, Ass't U.S. Attorney
P.O. Box 600, Jacksonville FL 32201
(904) 791-2682

Edward Shawaker
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4010