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Sierra Club v. Van Antwerp

ELR Citation: 41 ELR 20346
Nos. 10-5284, (D.C. Cir. , 11/29/2011)

The D.C. Circuit held that the U.S. Army Corps of Engineers complied with the CWA when it issued a permit authorizing the discharge of dredge and fill material into wetlands outside Tampa, Florida, for the construction of a large shopping center. An environmental group argued that the Corps violated the CWA because there were practicable alternatives having less adverse effects. But in determining practicability, it was reasonable for the Corps to look at the land's fair market value as opposed to the developer's lower acquisition cost. It was also reasonable for the Corps to use 8% as the minimum rate of return necessary for an alternative to be considered practicable. And although the shopping center will have more parking spaces than that of nearby malls, the Corps' acceptance of a higher-than-average parking ratio was not arbitrary or capricious. But while the Corps complied with the CWA, it failed to adequately address indications of an adverse effect on the indigo snake in violation of NEPA and the ESA. A lower court's decision that the Corps violated the CWA and NEPA but not the ESA was therefore reversed in part, affirmed in part, and remanded.