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Preserve Endangered Areas of Cobb's History, Inc. v. Corps of Eng'rs

ELR Citation: 26 ELR 21042
Nos. 1:95-CV-1394-WCO, 916 F. Supp. 1557/(N.D. Ga., 12/20/1995) FWPCA, NEPA, ESA, National Historical Preservation Act claims

The court holds that the U.S. Army Corps of Engineers (the Corps) did not violate the Federal Water Pollution Control Act (FWPCA), the National Environmental Policy Act (NEPA), the National Historical Preservation Act (NHPA), or the Endangered Species Act (ESA) in granting an FWPCA §404 permit for a highway project in Cobb County, Georgia, and determining that an environmental impact statement (EIS) was not required for the project. The court first holds that it is inappropriate to reconsider its previous order dismissing claims against the Corps under FWPCA §404 for inappropriately permitting a highway project and against the U.S. Environmental Protection Agency (EPA) for failing to exercise its oversight authority. The plaintiffs introduced no new evidence and did not raise any intervening legal developments that may compromise the original ruling's propriety. Also, there is little risk of manifest injustice, because the plaintiffs' remaining legal theories will provide ample opportunity to challenge the permit's issuance. The court next holds that the Corps' conclusion that the highway project was not a major federal action under NEPA was not arbitrary or capricious under the Administrative Procedure Act (APA). The administrative record indicates that the Corps considered the project's potential impact on wetlands and concluded that there would be no significant impact on the human environment. The court next holds that the Corps' approval of a memorandum of agreement providing for historic district mitigation was not arbitrary or capricious under the APA. The document specifically addressed the highway's expected impact on the historic district and, in accordance with the NHPA, proposed a mitigation plan upon which the §404 permit's issuance was predicated. The court then holds that the Corps' determination that the highway project had independent utility and was not being artificially segmented from a larger project to avoid preparing an EIS was not arbitrary or capricious under the APA. The administrative record indicates that existing highways were already carrying significant levels of traffic and that the highway project would be fully operational even if it were never connected to a larger network of roads. The court next holds that the Corps complied with the ESA when issuing the §404 permit. The Corps engaged in the requisite consultations under the ESA with appropriate federal wildlife agencies and thereafter reasonably concluded that the project would not be the catalyst to an ESA violation. Finally, the court holds that it may consider the entire administrative record that the Corps presented to it, even though the record was partially compiled after the Corps issued the §404 permit and was considerably more detailed than that record initially given to the plaintiffs at the litigation's outset.

[A prior decision in this litigation is published at 26 ELR 21039.]

Counsel for Plaintiff
Susan M. Garrett
Kirwan, Goger, Chesin & Parks
2600 The Grand
75 14th St., Atlanta GA 30309
(404) 873-8000

Counsel for Defendant
Mark A. Brown
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000