Jump to Navigation
Jump to Content

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

ELR Citation: 26 ELR 21449
Nos. 96-8094, 87 F.3d 1242/43 ERC 1155/(11th Cir., 07/11/1996) aff'd

The court affirms district court decisions upholding the U.S. Army Corps of Engineers' (the Corps') grant of a Federal Water Pollution Control Act (FWPCA) §404 permit for a highway through a historic district in Cobb's County, Georgia. The court first holds that the district court did not err in limiting its review to the administrative record and in issuing a protective order prohibiting discovery. Nothing in the case necessitates expanding the court's review beyond the administrative record, which adequately explains the agency's decision and shows that it weighed the relevant factors. The court next holds that the district court did not err in granting the Corps summary judgment. The Corps did not act arbitrarily and capriciously when it analyzed the highway as a stand-alone project, because it analyzed all of the factors required under the Federal Highway Administration's guidelines and properly concluded that the highway had logical termini, would not restrict consideration of alternatives, and had independent utility. Nor was the Corps arbitrary and capricious in determining that no environmental impact statement was required in issuing the §404 permit. The Corps reasonably concluded that the impact on wetlands would not be significant in light of the county's wetlands mitigation plan and that the project would not significantly affect the historic environment given the County's execution of a Memorandum of Agreement on Historic Preservation. The court next holds that the district court properly dismissed claims against the Corps and the U.S. Environmental Protection Agency (EPA) under FWPCA's citizen suit provision. Congress did not intend to waive sovereign immunity in regard to suits against the Corps under the FWPCA, and although the FWPCA does allow suits against EPA where there is an alleged failure to perform any non-discretionary act or duty, EPA's decision not to veto the Corps' permit is discretionary.

[The district court's decisions are published at 26 ELR 21039 and 21042.]

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

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

Before CARNES, Circuit Judge, and FAY and GIBSON*, Senior Circuit Judges.