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Wetlands Action Network v. Corps of Eng'rs

ELR Citation: 31 ELR 20051
Nos. No. 98-56242 et al., 222 F.3d 1105/51 ERC 1257/(9th Cir., 08/21/2000)

The court holds that the U.S. Army Corps of Engineers did not violate the National Environmental Policy Act (NEPA) when it issued a permit to a developer that planned to fill wetlands for a mixed use development project in Los Angeles County, California, and, therefore, vacated a district court's injunction prohibiting the developer from further construction activities. The court first holds that the district court did not err when it denied the developer's motion to intervene as of right on the merits of the NEPA claims. Because a private party cannot violate NEPA, it cannot be a defendant in a NEPA compliance action. Thus, the developer did not assert a legally protectable interest that relates to the NEPA claim and that would require intervention as of right.

The court next holds that the Corps did not improperly limit the scope of its NEPA analysis to the environmental impacts of filling 16.1 acres of wetlands instead of the impacts attributable to the whole development of the project. The Corps did not have independent jurisdiction over the parts of the development that do not require the filling of wetlands. Moreover, the development could and did proceed without the permit to fill the wetlands. Additionally, the project is not financed by federal money, and state and local, not federal, regulations control the overall design. In addition, according to Council on Environmental Quality regulations, the Corps was not required to consider in a single NEPA analysis the environmental impacts attributable to the three phases of the development because the three phases are not connected actions and they each have independent utility.

The court then holds that the Corps' decision to issue a finding of no significant impact (FONSI) for the development was not arbitrary and capricious. The Corps took a hard look at the environmental consequences of allowing the developer to construct the freshwater wetlands system, and the Corps based its decision to issue the FONSI on an evaluation of the relevant factors. Moreover, in order to issue the FONSI, the Corps only needed to find that the mitigation measures would render any environmental impact resulting from the permit activity insignificant. In addition, the Corps did not commit a clear error in judgment when it determined that the action was not controversial for NEPA purposes and, therefore, did not require preparation of an environmental impact statement.

Counsel for Appellees
Charles S. Crandall
Milberg, Weiss, Bershad, Hynes & Lerach
1800 One American Plaza
600 W. Broadway, San Diego CA 92101
(619) 231-1058

Counsel for Appellants
Anthony P. Hoang, Robert L. Klarquist
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Wardlaw and Sedwick,1 JJ.