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Citizens Comm. for Envtl. Protection v. U.S. Coast Guard

Citation: 8 ELR 20908
No. No. 77-1719, 456 F. Supp. 101/11 ERC 1916/(D.N.J., 06/09/1978)

Plaintiffs sought declaratory and injunctive relief against the construction of a two-mile freeway extension from New Brunswick to Piscataway, New Jersey, alleging violations of the National Environmental Policy Act (NEPA), 42 U.S.C. §§4321 et seq., ELR STAT. & REG. 41009, §4(f) of the Department of Transportation Act, 49 U.S.C. §1653(f), ELR STAT. & REG. 41605, and §§9 and 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. §§401, 403, ELR STAT. & REG. 41141. The project, which is intended to relieve acute local traffic congestion and aid in the revitalization of New Brunswick, involves the building of a bridge across the Raritan River and the placement of fill in the river and the nearby Delaware and Raritan Canal. The project thus requires a permit from the Coast Guard under §9 of the Rivers and Harbors Act for the bridge and one from the Army Corps of engineers under §10 for the fill operation. The two agencies entered into an agreement designating the former as the lead agency for the purposes of NEPA and §4(f), and the Coast Guard fulfilled this responsibility by preparing a combined environmental impact/§4(f) statement for the project.

The court rejects plaintiffs' claims that the state department of transportation is violating §§9 and 10 of the Rivers and Harbors Act by constructing the project, ruling that these statutory provisions do not create a private right of action, Loveladies Property Owners Ass'n v. Raab, 430 F. Supp. 276 (D.N.J. 1975), aff'd, 547 F.2d 1162, cert. denied, 432 U.S. 906 (1977), and that suit against the state would in any case be barred by the Eleventh Amendment, Edelman v. Jordan, 415 U.S. 651 (1974). Moreover, the state agency has not in fact violated either of these sections. The Coast Guard issued a §9 permit for the bridge, and the Corps likewise approved the filling operation under §10. Plaintiffs are mistaken in asserting that the fill will constitute a dam or dike and that a §9 permit is thus also required for the fill operation; the work cannot be considered an unreasonable obstruction to navigation and in fact will have a negligible impact on the navigability of the river and the canal. Petterson v. Resor, 331 F. Supp. 1302, 2 ELR 20013 (D. Ore. 1971). The plaintiffs are similarly in error in contending that specific congressional authorization is required for the fill operation under §10. Plaintiffs lack standing to raise the additional claim that the state is not proceeding to implement all the mitigation measures specified in the Memorandum Agreement accompanying the environmental impact statement because they were not parties to that agreement and have failed to allege any injury in fact to themselves.

Moving to plaintiffs' allegations against the federal defendants, the court upholds the Coast Guard's determination pursuant to §4(f) of the Department of Transportation Act that there are no feasible and prudent alternatives to the project as planned that would not also take land from a park and historic sites. The agency also properly decided that all possible mitigation measures have been included in the project. The court rejects the further contention that the length of the highway segment considered in the environmental impact statement was improper, holding that the segment covered had logical termini and independent utility. Daly v. Volpe, 376 F. Supp. 987, 4 ELR 20568 (W.D. Wash. 1974), aff'd, 514 F.2d 1106, 5 ELR 20257 (9th Cir. 1975).

The court therefore enters judgment in favor of defendants and against plaintiffs on all claims.

The full text of this opinion is available from ELR (21 pp. $2.75, ELR Order No. C-1161).

Counsel for Plaintiffs
Catherine K. White
Mutnick, Gast & White
127 Watchung Ave., Plainfield NJ 07060
(201) 756-0985

Counsel for Federal Defendants
Carl R. Woodward, III, Ass't U.S. Attorney
Federal Bldg., 970 Broad St., Newark NJ 07102
(201) 645-2289

Counsel for Defendant New Jersey Dep't of Transportation
Steven A. Tasher, Deputy Attorney General
Dep't of Law & Public Safety
State House Annex, Trenton NJ 08625
(609) 292-4975

Barlow, J.