Environmental – Administrative – Licenses & Permits — Wildlife Refuge – Clean Water Act

Friends of Back Bay v. U.S. Army Corps of Engineers (Lawyers Weekly No. 001-135-12, 16 pp.) (King, J.) No. 11-1184, June 18, 2012; USDC at Norfolk, Va. (Morgan, J.) 4^th Cir. Click here for the full-text opinion.

Holding: The “Friends of Back Bay” win their challenge to a Clean Water permit issued by the Army Corps of Engineers to a developer who wants to build a mooring facility and concrete boat ramp about 3,000 feet from the Back Bay National Wildlife Refuge in Virginia Beach; the 4^th Circuit vacates a decision upholding the permit, as the Corps relied on voluntary compliance with a “secret” no-wake zone to protect the Refuge from the negative effect of adding 64 boat slips to the existing 12 in the area.

The challenged permit attaches a number of operational conditions to the completed Project, including horsepower limitations on boat motors, restrictions on who may use the facility and the installation of signs informing the public of the establishment of a no-wake zone (NWZ) for watercraft within the Refuge.

Here, it cannot be disputed that the creation and continued existence of the NWZ is a foundational proposition upon which the “Finding of no Significant Impact” (FONSI) was premised. The Environmental Assessment (EA) did not pretend to the contrary; the Corps, to its credit, did not endeavor therein to downplay the potential deleterious consequences if watercraft are suffered to freely scurry about the Refuge. The NWZ, however, is entirely unenforced. Indeed, as revealed at the hearing below, the NWZ remained unmarked and undisclosed to the public nearly five years after its initial implementation. The most the Corps could say was that it was “hopeful” that the public would comply with the secret NWZ.

Absent any reasonable basis to conclude that, as of October 2008, the NWZ was being adequately enforced or its efficacy was otherwise assured, the concept as discussed within the EA was a logical nullity. Being unable to divorce the Corps’ demonstrably incorrect assumption of an effective NWZ from its ultimate conclusion that no Environmental Impact Statement need be prepared, we find ourselves constrained to invalidate the resultant FONSI as arbitrary and capricious. The judgment below must be vacated and the case remanded with direction to remand to the Corps.

Vacated and remanded.