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Back Bay Restoration Foundation, LTD v. United States Army Corps. of Engineers

ELR Citation: 50 ELR 20052
Nos. 2:19-cv-323, (E.D. Va., 03/04/2020) (Morgan, J.)

A district court denied summary judgment to an environmental group challenging the U.S. Army Corp of Engineers' issuance of a CWA §404 permit for development of an additional portion of an existing residential subdivision in Virginia Beach. The group argued the issuance was arbitrary and capricious because the Corps failed to comply with the CWA's §401(b) Guidelines, which prohibit the Corps from granting a permit if there is a practicable alternative to the proposed development that would have less adverse impact on the ecosystem and does not have other significant adverse environmental consequences. The court found the Corps complied with the guidelines by considering practicable alternatives and by acting to limit the development's impacts on nearby wetlands. The group next argued the Corps failed to perform a public interest review, as required by the guidelines. The court found the Corps actively involved agencies and the public in the comment period for the permit application process and fully considered the comments submitted, and thus that the Corps complied with its public interest review obligation. The group also argued the Corps violated NEPA by failing to conduct public hearings on the proposed development and failing to offer the public an opportunity to comment on the EA by publishing it the same day the permit was issued. The court found that NEPA did not require the Corps to circulate the EA for public comment and the agency provided ample opportunity for the public to comment on the development prior to issuing the permit. It therefore denied summary judgment to the group and granted summary judgment to the Corps.