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James City County v. EPA

ELR Citation: 22 ELR 20566
Nos. No. 91-2612, 955 F.2d 254/(4th Cir., 01/29/1992) Aff'd

The court holds that the district court properly overturned the Environmental Protection Agency's (EPA's) veto of the Army Corps of Engineers' decision to grant a permit to a Virginia county to build a dam and water reservoir to meet its projected water needs. EPA vetoed the Corps' decision under §404(c) of the Federal Water Pollution Control Act, finding that the project would result in unacceptable adverse effects to wildlife and that viable alternatives existed. The court holds that there are no practicable alternatives to the project, but the district court should have remanded the case to EPA to consider whether it would have vetoed the Corps' decision even in the absence of practicable alternatives. EPA did not rule that consideration of environmental effects would alone justify a veto and was entitled to an opportunity to make that ruling. The court finds no discernable congressional intent to allow the Agency only one opportunity to veto a Corps permit. Finally, the court relies on the representation of EPA's counsel that EPA will complete its determination on remand within 60 days of the court's decision.

Counsel for Appellants
Martin W. Matzen, Peter W. Colby, Edward J. Shawaker
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Henry E. Hudson, U.S. Attorney; Susan L. Watt, Ass't U.S.
U.S. Courthouse, 600 Granby St., Norfolk VA 23510
(804) 441-6331

Counsel for Appellee
William B. Ellis, Michael V. Hernandez
McSweeney, Burtch & Crump
P.O. Box 1463, Richmond VA 23212
(804) 783-6800

Sprouse, J. (before Spencer and Herlong, JJ.):