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Friends of Back Bay v. United States Army Corps of Engineers

ELR Citation: 42 ELR 20129
Nos. 11-1184, (4th Cir., 06/18/2012)

The Fourth Circuit held that the U.S. Army Corps of Engineer violated NEPA when it issued a CWA §404 permit allowing a developer to build a mooring facility and boat ramp 3,000 feet from the Back Bay National Wildlife Refuge in Virginia Beach, Virginia. The Corps' EA, issued contemporaneously with the permit, stated that the unrestricted use of the waters in and around the refuge may have an adverse impact on the sensitive and unique natural resources of the refuge and Back Bay as a whole. The permit provided for a "no wake zone" (NWZ), and the Corps claimed the NWZ would mitigate any adverse impacts from the construction and operation of the facility. It therefore determined that a FONSI, rather than an EIS, was appropriate. But the permit neither mandates enforcement of the NWZ nor guarantees its funding. The FONSI, therefore, is arbitrary and capricious. On remand, it must prepare an EIS.