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Northwest Envtl. Defense Ctr. v. Wood

ELR Citation: 27 ELR 20668
Nos. No. 95-1994-HO, 947 F. Supp. 1371/(D. Or., 03/05/1996)

The court holds that the U.S. Army Corps of Engineers' (the Corps') decision to issue a Federal Water Pollution Control Act §404(b) permit that allows an electronics company to fill 10.4 acres of wetlands in Eugene, Oregon, for the construction of a semiconductor fabrication plant was rationally based, in accordance with applicable laws and regulations, and neither arbitrary nor capricious. The court first holds that the Corps did not err in its application of the practicable alternatives test for §404(b) permits by defining the project purpose too narrowly. In light of the substantial evidence in the record regarding the electronics company's legitimate economic reasons for choosing to construct its project in Eugene, the Corp's decision to restrict the project purpose to the Eugene area was neither arbitrary nor capricious. The court next holds that the Corps did not abuse its discretion in concluding that no practicable alternatives to the fill permit existed. The Corps based its decision on the substantial evidence submitted by the electronics company that the overall project purpose could not be achieved on an alternative site with less damage to the aquatic ecosystem, and on the fact that the site is located within a regional wetlands plan area that has already been approved under a §404(b) practicable alternatives analysis.

The court holds that the Corps did not act arbitrarily or capriciously by not requiring a new alternatives analysis after the elimination of phase III of the electronics company's original three-phase plan from consideration. The electronics company withdrew phase III from its plan before the Corps issued the permit; thus, the permit authorized only the first two phases. Because this modification did not substantially alter the overall project purpose, the Corps should not be required to reinitiate an alternatives analysis. Further, the need to reinitiate was diminished, because the project modifications lowered the potential for adverse environmental impact, that impact is close to what Corps regulations deem minimal, and the proposed project is determined to be in compliance with applicable local land use laws. The court also holds that the Corps' decision that issuing the permit was in the public interest was not arbitrary or capricious or in violation of applicable law. The decision was based on a careful balancing of relevant public concerns and thousands of pages of public and agency input. And while the Corps' decision may not have been conducted along the lines of an informal rulemaking procedure, its procedures provided the public with ample opportunity for meaningful comment. Last, the court holds that the Corps' decision did not violate the National Environmental Policy Act (NEPA). In completing its finding of no significant impact, the Corps took as hard a look at the potential impacts as a court can expect an agency to take. The Corps also did not violate NEPA's public comment provisions or act arbitrarily or capriciously in its provision for public comment.

Counsel for Plaintiffs
Gary K. Kahn
Reeves, Kahn & Eder
4035 SE 52d Ave., Portland OR 97206
(503) 777-5473

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