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James City County v. EPA

ELR Citation: 23 ELR 20228
Nos. No. 89-156-NN, (E.D. Va., 08/05/1992) FWPCA §404 veto overturned

The court holds that the U.S. Environmental Protection Agency's (EPA's) Federal Water Pollution Control Act (FWPCA) §404(c) veto of an FWPCA §404 permit for the Ware Creek reservoir and dam project in James City County, Virginia, was unsupported by substantial evidence. The court finds that EPA's decision failed to consider the county's need for water and was based only on environmental factors. EPA may not look solely to environmental concerns and ignore vital human needs when it considers the acceptability of a project that affects the environment. Further, substantial evidence is required by the Fourth Circuit and is necessary to veto a permit that has already been granted. Although EPA provided reams of environmental analysis, it neglected its duty to consider all of the factors important to the project's acceptability. The court holds that EPA's analysis of the project's ecological impact fails to consider adequately the mitigation plan. Moreover, EPA presented skewed data on the anticipated net loss of wetlands and the damage to fish and wildlife, and the Agency overlooked the extent of the development that will occur in the area.

[An earlier district court decision is published at 21 ELR 20371. The Fourth Circuit's decision is published at 22 ELR 20566, and the appellate briefs are published at ELR PEND. LIT. 66159.]

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

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

MacKenzie, J.