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O'Reilly v. Corps of Eng'rs

ELR Citation: 37 ELR 20021
Nos. No. 04-31026, (5th Cir., 01/24/2007)

The court affirmed in part and reversed in part a lower court decision that the U.S. Army Corps of Engineers (the Corps) violated the National Environmental Policy Act in issuing a developer a Clean Water Act (CWA) §404 permit to dredge and fill wetlands for a residential project. The Corps' finding of no significant impact (FONSI) for the permit was arbitrary and capricious because the environmental assessment (EA) on which the FONSI was based failed to articulate how mitigation measures would render adverse effects insignificant. The EA also failed to consider the cumulative effects of the project, area urbanization, and permits issued to third parties. But the Corps did not improperly segment the project by failing to include full analysis of two possible future phases of development in its EA. In addition, the district court erred in enjoining the permit. If, as here, a court finds that an EA is inadequate in a manner that precludes making a determination as to whether the project may have a significant impact, the court should remand the case to the agency to correct the deficiencies in its analysis. The case, therefore, was remanded to the Corps for further proceedings, including the preparation of a new EA, a new FONSI, an environmental impact statement, or other appropriate disposition.