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Alaska Ctr. for the Env't v. West

ELR Citation: 29 ELR 20001
Nos. 96-36190, 157 F.3d 680/(9th Cir., 09/16/1998)

The court upholds five general permits issued by the U.S. Army Corps of Engineers authorizing the filling of wetlands for a broad range of development activities in Anchorage, Alaska. The court first holds that the Corps satisfied the requirement that the permitted activities are "similar in environmental impact." The Corps emphasized that the proposed general permits are designed so that secondary impacts that might differentiate the activities proposed for authorization have been reduced such that environmental impacts would not now differ among the general permits. The conditions in the permits satisfy the requirement that the Corps consider and explain why actions are similar in environmental impact. The court next holds that the conditions illustrate not only similarity of environmental effects, but also similarity in the nature of the projects. The court cannot conclude that the Corps' interpretation of its own regulations is plainly erroneous or inconsistent with the regulations. The record reflects that the Corps did consider public interest in authorizing the activities. Moreover, the Corps did not act arbitrarily and capriciously in using the restrictions to satisfy the similar in nature requirement. The Corps made a reasonable determination that it should consider the public interest in general types of activities and guaranteed that where the activities did differ, those differences would have a similar impact.

The court then holds that the Corps did not act arbitrarily and capriciously by concluding that the discharges would have a minimal environmental impact. Although the Corps relied to some extent on a municipal wetlands management plan, which was generated by Anchorage in conjunction with federal and state resource agencies, it also conducted its own analysis. Overall, the Corps made efforts to designate only certain sites for development where higher value wetlands could be protected. The Corps considered the relevant factors and concluded that only 360 acres of wetlands would likely be affected. The court last holds that the Corps did not improperly delegate authority to Anchorage to administer the permits. Review of the law and the record illustrates that there was no impermissible delegation, only an attempt to coordinate activity. The Corps retains its full legal authority and may suspend use of or find a violation of the permits at any time even if Anchorage has issued an opinion of compliance.

Counsel for Plaintiffs
Anthony N. Turrini
National Wildlife Federation
750 W. Second Ave., Ste. 200, Anchorage AK 99501
(907) 274-3388

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

Before O'Scannlain and Hawkins, JJ.