Pittinos, Merc

English

University of Denver

Water Law Review Volume 5 Issue 2 Article 43 1-1-2002 Save Our Wetlands v. United States Army Corps of Eng'rs, No. 01-3472, 2002 U.S. Dist. LEXIS 1294 (E.D. La. January 15, 2002) Merc Pittinos Follow this and additional works at: https://digitalcommons.du.edu/wlr Custom Citation Merc Pittinos, Court Report, Save Our Wetlands v. United States Army Corps of Eng'rs, No. 01-3472, 2002 U.S. Dist. LEXIS 1294 (E.D. La. January 15, 2002), 5 U. Denv. Water L. Rev. 602 (2002). This Court Report is brought to you for free and open access by the University of Denver Sturm College of Law at Digital Commons @ DU. It has been accepted for inclusion in Water Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. WATER LAWREVIEWSave Our Wetlands v. United States Army Corps of Eng'rs, No. 01-3472, 2002 U.S. Dist. LEXIS 1294 (E.D. La. January 15, 2002) (holdingthat Army Corps of Engineers finding that a proposed developmentproject would cause no significant impact to the environment was notarbitrary and capricious).Save Our Wetlands brought a Motion for Preliminary Injunction toenjoin construction of a development project approved by the ArmyCorps of Engineers ("Corps"). Save Our Wetlands contended theCorps' finding that the project would have no significant impact onthe environment was arbitrary and capricious, and sought aninjunction.On November 9, 2001, the Corps approved Stirling Slidell's permitto construct a development project on thirty-eight acres in the BayouLiberty Basin of St. Tammany Parish, Louisiana. Prior to approvingthe project, the Corps prepared an environmental assessment ("EA")in compliance with the statutory requirements of the NationalEnvironmental Policy Act. In the EA, the Corps analyzed the project'sdirect and cumulative effects, alternatives to the development site, andmitigating measures that would decrease the project's negative effects.At the conclusion of its analysis, the Corps issued a finding of nosignificant impact ("FONSI") and approved Stirling's application.Save Our Wetlands contended the FONSI was arbitrary andcapricious because the Corps did not consider the direct, secondaryand cumulative effects of the development on area flooding in theBayou Liberty Basin. The court rejected Save Our Wetland'scontention for four reasons. First, the Corps based its analysis of theproject's effects on a study conducted by Duplantis Engineering, whichthe court found both comprehensive and conclusive. Second, none ofthe federal or state agencies that analyzed the project voiced anyconcern over its potential for increased flooding in the Bayou LibertyBasin. Third, the Corps' approval mandated the construction of adetention pond to control flooding. Fourth, the project was expectedto provide economic benefits to the surrounding community,including funding for municipal improvements that would alleviateexisting flooding in the area.In the Fifth Circuit, a plaintiff must establish several requirementsto prevail on a Motion for Preliminary Injunction. The plaintiff mustprove a substantial likelihood of success in a trial on the merits of thecase, a substantial threat of suffering irreparable injury if theinjunction is denied, that the threatened injury outweighs the harm tothe defendant, and that granting the injunction would serve the publicinterest.The court held that because the FONSI was not arbitrary andcapricious, Save Our Wetlands was unlikely to succeed on the merits ofthe case at trial. The court held that because the project did notcreate a significant chance of increased flooding, the project wouldnot cause irreparable harm to Save Our Wetlands. Additionally, theVolume 5COURT REPORTScourt held that an injunction would not serve the public interest. As aresult, the court denied the Motion for Preliminary Injunction.Merc PittinosUnited States Pub. Interest Research Group v. Heritage Salmon, Inc.,No. 00-150-B-C, 2001 U.S. Dist. LEXIS 13283 (D. Me. Aug. 28, 2001)(holding associations asserting rights on behalf of members mayestablish standing where the individual members meet basic elementsof standing).In 2000, United States Public Interest Group ("USPIRG") filed acitizen's suit accusing Heritage Salmon, Inc. ("Heritage"), a salmonfarm located in the vicinity of Cobscook Bay ("Bay"), Maine, ofviolating the Clean Water Act ("CWA"), and failing to obtain anNPDES permit. USPIRG sought a declaratory judgment that Heritagewas in violation of an effluent standard or limitation under Chapter26, Title 33 U.S.C. In addition, they sought civil penalties and anorder enjoining Heritage from continuing to violate the applicablestandard or limitation. In response to USPIRG's accusations, Heritagefiled a motion to dismiss under the theory that USPIRG had failed toestablish standing.When the plaintiff is an association asserting rights on behalf of itsmembers: (1) some members must have standing to sue in their ownright; (2) the members' interest in the suit must be germane to theorganization's purpose; and (3) the claim asserted and the reliefrequested must not require the individual participation of thosemembers in the suit. Heritage conceded that USPIRG satisfied thesecond and third requirements, but argued USPIRG was unable tosatisfy the first requirement. USPIRG claimed standing based on theexperiences of three members who stated they were adversely affectedby Heritage's pollution of the Bay and its tributaries. The memberseach claimed they reduced or eliminated the amount of fish theyconsumed from the Bay or its tributaries because they were fearful ofthe effects of the pollution on the fish. Two of the members statedthey stopped fishing in the area because of the pollutants in the waterfrom Heritage, and feared the further depletion of wild salmon, whichwere already suffering from Heritage's pollution.The United States District Court for the District of Maine heldUSPIRG had established standing because the members had sufferedinjuries in fact traceable to the defendant's activities, which wereredressable through court action. Injury in fact was established, interalia, because the members were not taking advantage of a "local foodsource that they would otherwise enjoy due, in large measure, toHeritage's discharges." The court also emphasized that environmentalplaintiffs adequately allege injury in fact "when they aver that they usethe affected area and are persons for whom the aesthetic andIssue 2

Save Our Wetlands v. United States Army Corps of Eng\u27rs, No. 01-3472, 2002 U.S. Dist. LEXIS 1294 (E.D. La. January 15, 2002)

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Save Our Wetlands v. United States Army Corps of Eng\u27rs, No. 01-3472, 2002 U.S. Dist. LEXIS 1294 (E.D. La. January 15, 2002)

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