background image
2
I. Failure to Comply with NEPA
We believe that the National Environmental Policy Act (NEPA) requires that Army
Corps circulate an Environmental Impact Statement (EIS) for public review and comment
prior to authorizing this project. The requirements of NEPA are not satisfied by limiting
public review to the Public Notice (PN), especially given the inadequate and vague
information it contains.
Despite the fact that the proposed project would have significant environmental effects
that are of great public concern, the Army Corps is attempting to bypass its obligation to
include the public in its decisions affecting the environment. In addition to the deficient
information discussed herein, the PN does not contain an alternatives analysis or an
analysis of the Least Environmentally Damaging Practicable Alternative (LEDPA). If the
Army Corps limits public review and comment to the PN, the public will be denied any
opportunity to review these analyses if and when the Corps conducts them, and therefore,
the important role of the public in the NEPA process will be improperly constrained and
left unfulfilled.
"Agencies shall integrate the NEPA process with other planning at the earliest possible
time to insure that planning and decisions reflect environmental values, to avoid delays
later in the process, and to head off potential conflicts." 40 CFR § 1501.2.
Cooperating agencies are permitted to adopt an EIS signed by the lead agency, provided
they undertake "an independent review of the statement" and determine that their
"comments and suggestions have been satisfied." 40 C.F.R. § 1506.3(c).
The Corps may only issue a permit for a project found to be the Least Environmentally
Damaging Practicable Alternative (LEDPA). This can only be done if the decision is
informed by public process that includes an EIS. Since the Bureau of Indian Affairs has
not even completed the Draft EIS at this time, it is premature for the Corps to issue a
permit or undertake public review of the permit application at this time.
"NEPA does not work by mandating that agencies achieve particular substantive
environmental results," but it does "work" by requiring that the environmental
consequences of an action be studied before the proposed action is taken. Marsh v.
Oregon Natural Resources Council, 490 U.S. at 371 , 109 S.Ct. at 1858.
The Corps must have before it a full picture of the environmental consequences of its
actions and take a "hard look" of these consequences prior to issuing a permit.
An agency has met its "hard look" requirement if it has "examine[d] the relevant data and
articulate[d] a satisfactory explanation for its action including a 'rational connection
between the facts found and the choice made.'" Motor Vehicle Mfrs., 463 U.S. at 43, 103
S.Ct. at 2866. The court will overturn an agency's decision as arbitrary and capricious
under "hard look" review if it suffers from one of the following: (1) the decision does not
rely on the factors that Congress intended the agency to consider; (2) the agency failed
entirely to consider an important aspect of the problem; (3) the agency offers an