32 ELR 20537 -- Utah Council v. United States Army Corps of Engineers

Utah Council v. United States Army Corps of Engineers

No. 2:00-CV-00623C (187 F. Supp. 2d 1334) (UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH March 6, 2002)

ELR Digest

The court holds that the U.S. Army Corps of Engineers did not violate the Clean Water Act (CWA), the National Environmental Policy Act (NEPA), the National Historic Preservation Act (NHPA), or the Federal Wildlife Coordination Act (FWCA) when it allowed the construction of three water treatment projects in Utah under the CWA nationwide permit (NWP) program. The court first holds that because construction of two of the projects is complete, environmental groups' challenges to their construction are moot, but the court may still consider the adequacy of mitigation measures for the three projects under the NWP program and issue procedural relief if necessary. The court next holds that the Corps properly applied NWP 26, which regulates discharges of dredged material into headwaters and isolated waters, to one project and made a reasonable determination as to which stream in the project was considered the headwaters. The record demonstrates that under the five cubic feet per second headwaters determination in 33 C.F.R. § 330.2(d), the Corps reasonably determined that an unnamed stream that impacted the wetlands at issue was the applicable headwaters. The court next holds that the Corps reasonably determined that the three-acre limitation on NWP 26 permits did not apply to construction of one project. The three-acre limitation prevents discharge of dredged material at a project from causing the loss of three acres of U.S. waters, but the record indicates that the construction of the project would impact less than three acres. The court further holds that the Corps reasonably determined that a project was authorized by NWP 12, which covers discharges associated with excavation, backfill, or utility bedding. There is no support for the groups' argument that NWP 12 does not allow water projects that run, as here, parallel to a tributary, and the Corps properly considered water quality issues when it verified the use of NWP 12 for the project. The court additionally holds that because the Corps applied NWP 12 to one project and NWP 26 to a separate project, the Corps did not improperly use two or more different NWPs--called stacking--to authorize a single project. The court finally holds that the Corps also conducted an appropriate NEPA alternatives analysis for the NWP verifications when the NWPs were first formulated, and the Corps did not err when it required individual permits for two of the projects. In addition, the Corps fully complied with NEPA when it first issued the NWPs at issue. Likewise, the Corps did not violate the NHPA or the FWCA when it authorized the project.

The full text of this decision is available from ELR (32 pp., ELR Order No. L-475).

Counsel for Plaintiffs
Joro Walker
Law Fund
214 E. 500 South St., Salt Lake City UT 84105
(801) 487-9911

Counsel for Defendants
Daniel Price
U.S. Attorney's Office
185 South St., Ste. 400, Salt Lake City UT 84111
(801) 524-5682

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]