Friends of Back Bay v. United States Army Corps of Engineers
681 F.3d 581
| 4th Cir. | 2012Background
- Wilkins proposed project would expand 12 to 76 slips at a mooring facility in Back Bay, VA; permit under CWA §404 and RHA §403 authorized dredging, fill, and related construction.
- The Corps issued the permit with mitigations including creation of equivalent wetlands and an NWZ (no-wake zone) around the Refuge.
- Public comments overwhelmingly opposed the project; FWS and other agencies urged denial or EIS, citing potential environmental impacts to SAV and wildlife.
- EA issued with a FONSI, and the NWZ was implemented as a restriction to minimize impacts; the NWZ’s enforcement and funding were uncertain.
- FWS, EPA, and state agencies questioned the project’s compatibility with Back Bay restoration goals; the district court granted summary judgment to the Corps.
- Plaintiffs challenged NEPA compliance and sought remand for an EIS; the court vacated and remanded the judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NEPA requires an EIS for the Wilkins Project. | Plaintiffs argue mitigation via NWZ baseline is insufficient, requiring an EIS. | Defendants contend NWZ was a baseline; no EIS needed under a mitigated FONSI. | Remanded for an EIS; FONSI vacated as arbitrary and capricious. |
| Whether the NWZ baseline invalidates the NEPA analysis. | NWZ was not a valid baseline and undermines the analysis. | NWZ is the baseline reflecting the environment absent action. | Baseline mischaracterization invalidates the FONSI; remand required. |
| Whether the agency should have considered potential significant impacts given the area's ecological importance. | Back Bay is ecologically critical; impacts may be significant. | NWZ and permits mitigate effects; no significant impact. | EIS warranted due to ecological significance and potential controversy. |
| Whether the project’s potential secondary effects under §404 warrant NEPA scrutiny. | Secondary boating effects should be considered as impact of dredge/fill. | Secondary effects not properly linked to dredged materials. | Remand for EIS; secondary effects to be evaluated in forthcoming analysis. |
| What relief is appropriate on remand. | Remand for EIS with thorough NEPA analysis. | Proceed with EIS on remand as appropriate. | Vacate and remand to require preparation of an EIS. |
Key Cases Cited
- Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177 (4th Cir. 2009) (NEPA requires a hard look and de novo reasonableness review of agency decisions)
- Campbell v. O’Leary, 64 F.3d 892 (4th Cir. 1995) (NEPA baseline/mitigation analysis and substantial evidence)
- Marsh v. Oregon Natural Res. Council, 490 U.S. 360 (Supreme Court 1989) (standard for arbitrary and capricious review under NEPA/APA)
- Sierra Club v. U.S. Army Corps of Eng’rs, 701 F.2d 1011 (2d Cir. 1983) (agency must consider expert views and avoid ignoring conflicting agency input)
- Davis v. Mineta, 302 F.3d 1104 (10th Cir. 2002) (skepticism warranted when responsible agencies ignore pertinent expertise)
- Abenaki Nation of Mississquoi v. Hughes, 805 F. Supp. 234 (D. Vt. 1994) (illustrates evaluating effectiveness of mitigation/enforcement baselines)
- Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) (general NEPA/administrative action review framework)