The Fourth Circuit Court of Appeals has ordered the U.S. Army Corps of Engineers (Corps) to prepare an environmental impact statement (EIS ) on the potential effects of a project near a Virginia Wildlife refuge on surrounding wetlands. Friends of Back Bay v. Corps, No. 11-1184 (4th Cir. 6/18/12). The court vacated the district court decision that rejected plaintiff’s challenge to the Corps’ approval of a wetlands dredge-and-fill permit for the project, which was near the Back Bay National Wildlife Refuge in Virginia Beach, Virginia.
The project was to build a mooring facility and concrete boat ramp about 3,000 feet from the refuge. It would expand to 76 from 12 the number of boat slips at the site. The approved permit authorized channel-dredging as well as the excavation and relocation of silt and other material. It also provided for the construction of bulkheads, piers, mooring piles, and a walkway. To mitigate vegetated wetlands cleared to make way for the project, the permit specified the creation of equivalent wetlands nearby and required the relocation there of plants displaced by the project.
Reviewing a U.S. Fish and Wildlife Service determination that specifically recommended the preparation of an EIS , the court found “arbitrary and capricious” the Corps’ decision that the project was not a federal action “significantly affecting the quality of the human environment,” which led the Corps to conclude that an EIS was not required under the National Environmental Policy Act.