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Hillside Environmental Loss Prevention, Inc. v. United States Army Corps of Engineers

ELR Citation: 42 ELR 20250
Nos. 11-3210, (10th Cir., 11/28/2012)

The Tenth Circuit upheld a U.S. Army Corps of Engineers dredge and fill permit allowing a railroad company to build a terminal on land outside Kansas City, Kansas, that contains streams and wetlands. Environmental groups argued the Corps inadequately considered alternatives to the selected site under the CWA. But the Corps successfully rebutted the presumption that less environmentally damaging practicable alternatives to the preferred site existed. All but two of the proposed alternative sites were impracticable. Of those two, the site chosen by the Corps contained fewer wetlands and were of a lesser quality. In addition, the Corps's decision not to prepare an EIS under NEPA was not arbitrary or capricious. The Corps' finding that there will be no significant impact from fugitive dust emissions at the facility was not arbitrary and capricious. The railroad company entered into a mitigation agreement with the state that requires it to monitor the site and to adopt mitigation measures if dust emissions exceed levels specified in the agreement. The record also supports the Corps' conclusion that water impacts from the facility are insignificant. Nor was the project "highly controversial" to warrant the preparation of an EIS.