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James City County v. EPA

ELR Citation: 24 ELR 20182
Nos. No. 92-2294, 12 F.3d 1330/37 ERC 2104/(4th Cir., 12/30/1993) Rev'd

The court upholds the U.S. Environmental Protection Agency's (EPA's) veto of a Federal Water Pollution Control Act (FWPCA) §404 permit issued by the U.S. Army Corps of Engineers for the construction of a dam and reservoir that EPA based solely on a finding of unacceptable environmental effects, and holds that EPA need not consider the affected area's need for water in reaching its decision. The court holds that EPA may justify its §404(c) veto solely on the basis that it would cause unacceptable adverse effects to the environment. The FWPCA's scant legislative history regarding EPA's authority on this point indicates that EPA may veto a project in order to protect the environment if the proposed discharge will have an unacceptable adverse effect on any of a variety of environmental concerns. In providing EPA with veto authority, Congress recognized that EPA's expertise and concentrated concern with environmental matters make it the best final arbiter of a project's merit. As to what EPA must consider in reaching its decision, neither the Act nor its legislative history require EPA to consider any factors other than a proposed project's potential adverse effects on the environment. The court next holds that EPA's factual conclusion of unacceptable adverse effects, including harm to existing fish and wildlife species, damage to the ecosystem, destruction of wetlands, and inadequate mitigation, is supported by the administrative record and substantial evidence, and is not arbitrary and capricious.

[Prior decisions in this action are published at 21 ELR 20371, 22 ELR 20566, and 23 ELR 20228. Appellate briefs for a prior appeal are digested at ELR PEND. LIT. 66159.]

Counsel for Plaintiff
Martin Madsen
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Frank Morton, County Attorney
County Attorney's Office
P.O. Box 8784, Williamsburg VA 23187
(804) 253-6612