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Sierra Club v. Corps of Eng'rs

Citation: 32 ELR 20823
No. No. 01-11179, 295 F.3d 1209/(11th Cir., 06/28/2002)

The court affirms a district court holding that the U.S. Army Corps of Engineers (the Corps) did not violate Endangered Species Act (ESA) §7 or the National Environmental Policy Act (NEPA) when it issued a dredge and fill permit for the construction of a Florida highway. In 1993, the U.S. Fish and Wildlife Service (FWS) issued a biological assessment (BA) of the proposed highway site on the eastern indigo snake, and, subsequently, the Corps issued a final environmental impact statement (EIS) for the selection of the highway site. In 1996, the state transportation department submitted applications for the permits necessary to begin construction. Subsequently, the Corps initiated formal consultation with the FWS, pursuant to ESA §7, regarding the highway construction's potential impact on endangered species. The FWS found that only the eastern indigo snake would be impacted, but determined that the 1993 BA's compensation plan was sufficient. In 1997, the Corps prepared an environmental assessment of the four highway segments, issued a finding of no significant impact for each, and, thereafter, issued a dredge and fill permit to the state transportation agency. In 1999, an environmental group sought to enjoin the highway construction alleging, among other things, that the Corps was arbitrary and capricious in not preparing a BA as part of the dredge and fill permit process. The court first holds that the record established that the Corps fully complied with NEPA and the ESA for a major federal project. It prepared an EIS for selection of the project, it remained involved in the planning process, and incorporated these previous studies into its analysis of the permits. Thus, the Corps had before it a full picture of the environmental consequences of the parkway, and given the mitigation plan for the eastern indigo snake and alterations, did not act arbitrarily and capriciously in determining that a BA or a supplemental EIS was not necessary for the issuance of the permits. The court also holds that a change in the highway's alignment did not create a substantially new project requiring a new BA. The court further holds that the Corps did not act arbitrarily and capriciously in relying on the FWS BA, in consulting the FWS, or in adopting the action area identified by the Federal Highway Administration.

The full text of this decision is available from ELR (14 pp., ELR Order No. L-542).

[Counsel not available at this printing.]