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Conservation Council of N.C. v. Costanzo

Citation: 5 ELR 20666
No. No. 74-22-CIV-7, 398 F. Supp. 653/8 ERC 1479/(E.D.N.C., 07/24/1975) On remand

The court orders the Corps of Engineers to prepare a full scale NEPA impact statement with respect to its granting a permit under §10 of the Rivers and Harbors Act of 1899 for marina construction on a privately-owned island on the North Carolina coast. It is inescapable that the marina permit will accelerate development of a planned resort community on the island and thereby significantly affect the environment. The court declines, however, to invalidate the §10 permit pending completion of the EIS, because the Corps conducted a wide-ranging, good-faith assessment of the potential environmental impact of the project before issuing the permit, and a balancing of the equities demands that the permit not be invalidated, and that no injunction issue against further construction. The developer's discharging of dredge spoil from the marina on adjacent wetlands which are inundated by the tide several times a year violates §301(a) of the Federal Water Pollution Control Act Amendments of 1972, since such activity requires a Corps of Engineers permit under §404 of the statute and none has been obtained. The developer is accordingly ordered to apply for an after-the-fact permit, but the court declines to order complete restoration of the area or to enjoin continued discharges pending processing of the permit application on the grounds that the violation is a minimal, technical one, not justified on a weighing of the practicalities and hardships. The court notes that the public interest would be adversely affected by such injunctive relief, since it would effectively prevent conveyance by quitclaim from the developer to the state of 9,000 acres of valuable salt marshes and Atlantic coast beaches on the island pursuant to a provision attached to the §10 permit. If the Corps should revoke the §10 permit as a result of preparing and considering the EIS, or ultimately denies the application for a §404 permit, plaintiff's requests for injunctive relief will be reconsidered. For the Fourth Circuit Court of Appeals' earlier opinion vacating this court's previous dismissal, and remanding the case, see 5 ELR 20028.

Counsel for Plaintiffs
Norman B. Smith
Smith, Carrington, Patterson, Follin & Curtis
704 Southeastern Building
Greensboro, N.C. 27401

Prof. Thomas J. Schoenbaum
U.N.C. School of Law
Chapel Hill, N.C. 27514

Counsel for Defendants
Thomas P. McNamara U.S. Attorney
U.S. Courthouse
Raleigh, N.C. 27611

David A. Nash
Hogue, Hill, Jones, Nash & Lynch
101 South Third Street
P.O. Box 1268
Wilmington, N.C. 28401

Counsel for Amicus Curiae State of North Carolina
Rufus L. Edmisten Attorney General
W. A. Raney, Jr. Assoc. Attorney General
State Capitol
Raleigh, N.C. 27611