James City County v. United States Environmental Protection Agency

No. 89-156-NN (E.D. Va. November 6, 1990)

The court holds that the Environmental Protection Agency (EPA) improperly exercised its authority under § 404(c) of the Federal Water Pollution Control Act (FWPCA) when it vetoed an Army Corps of Engineers' decision to allow fill activity associated with the proposed construction of a dam. County officials proposed constructing a reservoir on Ware Creek to meet growing water supply needs, and after 10 years of administrative preparations, EPA vetoed the Corps' decision to issue a permit for the proposed fill activity. The court holds that EPA incorrectly invoked a presumption under the FWPCA § 404(b)(1) guidelines that other practicable and less environmentally damaging alternatives were available to meet the county's growing water supply needs. EPA may not presume the existence of alternatives in this case because the FWPCA § 404(b)(1) guidelines for EPA's veto authority expressly revoke any presumption that practicable alternatives exist if no alternatives other than aquatic sites are available. The court concludes that because the construction of a dam must be located in wetlands to fulfill its basic purpose of impounding a stream, no presumption exists that practicable alternatives are available that do not involve aquatic sites. EPA has thus not met its duty of showing that the proposed project will have an unacceptable adverse effect. Although EPA presented several possible alternatives, including a three-dam project and greater reliance on groundwater, it never stated that any could actually be implemented by the county. The three-dam project would leave the county short of its water needs and would require the permission of a neighboring county that had already stated it unequivocal opposition. In fact, EPA itself stated that it would oppose the project. The groundwater alternative is equally implausible because the state previously enacted a prohibition on municipal water supply withdrawals by the county.