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California Trout v. Schaefer

ELR Citation: 25 ELR 21416
Nos. No. 93-17160, 58 F.3d 469/(9th Cir., 06/26/1995)

The court holds that the U.S. Army Corps of Engineers (the Corps) did not violate the National Environmental Policy Act (NEPA) or the Federal Water Pollution Control Act (FWPCA) when it issued an FWPCA §404 permit to a water district to fill 4.18 acres of wetlands during construction of a rediversion structure that is part of a water diversion project. The court first holds that the Corps properly limited the scope of its environmental review under NEPA to the water district's activities in filling the 4.18 acres of wetlands, not the entire project's effect on downstream fisheries. The Bureau of Reclamation, not the Corps, has the contractual right and statutory obligation to curtail the water district's contractual allocations as necessary to protect the fisheries' needs, and the Corps has no jurisdiction over the amount of water the Bureau may decide to divert. The Bureau has already complied with NEPA by preparing an environmental impact statement and at least four in-depth governmental studies, which are being updated. The court next distinguishes this action from cases that did not involve concurrent but independent jurisdiction of two federal agencies. The court then holds that the Corps did not fail to use the same scope of analysis for both the impacts and alternatives of the project as it used for the project's benefits, in violation of ¶ 7(b)(3) of the Corps NEPA Regulations. The Corps weighed the benefits of the rediversion structure to the water diversion project; it did not weigh the benefits of the entire project against the environmental impacts of the rediversion structure. The court also defers to the Corps' reasonably thorough findings that no growth would result from the project. The court next holds that the Corps considered the U.S. Fish and Wildlife Service's, the National Marine Fisheries Service's, and state fish and game officials' initial concerns about the impact the water diversion might have on the fisheries, and explained why it found those concerns unpersuasive. The Corps responded to the agencies' concerns; moreover, the agencies are not challenging the Corps' scope of review. The court holds that there is nothing in the record to suggest that the Corps' finding that the water district's fill activities would not cause or contribute to significant degradation of U.S. waters resulted from a clear error of judgment. Finally, the court holds that the Corps' issuance of the §404 permit to the water district was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

Counsel for Plaintiff
Joseph J. Brecher
Kennedy & Wasserman
1970 Broadway, 12th Fl., Oakland CA 94612
(510) 272-0433

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

Before Brunetti, Thompson, and Hawkins, JJ.