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Natural Resources Defense Council v. Corps of Eng'rs

ELR Citation: 31 ELR 20880
Nos. Nos. 99-2899-CIV-MOORE/O'SULLIVAN, 00-0033-CIV-MOO, (S.D. Fla., 06/28/2001)

The court denies environmental groups' motion for a preliminary injunction requiring the U.S. Army Corps of Engineers' management of a Florida water project to comply with certain provisions of a U.S. Fish and Wildlife Service (FWS)-issued reasonable and prudent alternative (RPA) that would allegedly minimize harm to a sparrow listed as endangered under the Endangered Species Act (ESA). The court first holds that in managing the project the Corps did not follow FWS' advice in the RPA, but failure to follow the RPA is not a de facto violation of the ESA. The legislative history for ESA §7 regulations indicates that FWS never intended to force another agency to follow its RPAs. Moreover, instead of complying with the RPA, the Corps developed its own management plan, which the Corps argued is equivalent to the RPA. Although factual experts from the Corps and the FWS disagreed as to the efficacy of the Corps' plan, the court must defer to the informed discretion of the Corps as the action agency, and a factual conflict among agencies does not lessen this deference. The court then holds that the Corps' reliance on its own hydrological expert was not arbitrary and capricious. The Corps' expert is a Ph.D. hydrologist using a widely accepted and used regional hydrological model for Florida that has been peer reviewed and calibrated. Therefore, the court holds that the group failed to demonstrate that the Corps' plan was inadequate and that the Corps failed to consider the relevant factors. Thus, the Corps' position that its management plan is equivalent to and meets the RPA is based on substantial technical analysis and is not arbitrary and capricious. Because the groups failed to prove substantial likelihood of success on the merits, they failed to meet the required elements necessary for a preliminary injunction.

The full text of this decision is available from ELR (20 pp., ELR Order No. L-381).

Counsel for Plaintiffs
David E. Adelman
Natural Resources Defense Council, Inc.
1200 New York Ave. NW, Ste. 400, Washington DC 20005
(202) 289-6868

Counsel for Defendants
John T. Stahr
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000