Defenders of Wildlife v. Ballard

No. Civ. 97-794 TUC ACM (73 F. Supp. 2d 1094) (D. Ariz. October 8, 1999)

ELR Digest

The court enjoins the U.S. Army Corps of Engineers from authorizing future projects under nationwide permits (NWPs) 13, 14, and 26 within the range of the ferruginous pygmy owl in Arizona until the Corps supplements the National Environmental Policy Act (NEPA) analysis performed in the environmental assessments (EAs) for the NWPs. The court first holds that environmental groups' challenge to the Corps' EA is not moot as long as the Corps continues to use the NWPs. Likewise, the court holds that the groups' challenge is ripe because a person injured by a failure to comply with NEPA procedure may complain of that failure at the time the failure takes place, for the claim can never get riper. The court also holds that the groups have standing. The groups reside in and use areas within the pygmy owl habitat. They alleged a concrete and particular injury that NWP-authorized activities may affect the pygmy owl because the Corps did not consider the NWPs' cumulative impact at the regional level. The alleged injury is traceable to the Corps' alleged failure to consider the NWPs' cumulative impacts, and procedural compliance with NEPA will redress the groups' injury.

The court next holds that the Corps' decision to issue NWPs 13, 14, and 26 violated NEPA by failing to conduct a regionally based programmatic impact analysis for the pygmy owl. The Corps conditioned its finding of no significant impact for the NWPs on a modified NWP structure, which provided that the impact analysis be conducted at the regional level. The Corps, however, never discussed regional conditions or regional revocation requirements. Instead, the Corps relied on site specific pre-construction notification documents. These documents reveal that the Corps' sole consideration prior to the NWP authorization was whether any pygmy owls occupied habitat present within the permit area or the overall project area. Such a scope of analysis is inadequate to measure the impact of implementing the NWP program under which thousands of projects will be authorized. Therefore, at a minimum, the Corps must take a hard look at the cumulative impacts of the NWP program, specifically NWPs 13, 14, and 26, and determine that the use of the permits in the region of pygmy owl range has no significant impact.

The full text of this decision is available from ELR (21 pp., ELR Order No. L-115).

Counsel for Plaintiffs
Katherine A. Meyer
Meyer & Glitzenstein
1601 Connecticut Ave. NW, Ste. 450, Washington DC 20009
(202) 588-5206

Counsel for Defendants
Lois Schiffer
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

[30 ELR 20174]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]