Case Law Updates on the Environment (CLUE)
Case Law Update Details
North Idaho Community Action Network v. Hofmann & USACE
U.S. District Court - Idaho
U.S. 95 Highway Project
For a description of the project, including the NEPA documents prepared, see our earlier Update in North Idaho Community Action Network v. U.S. DOT. This Update discusses the challenge to the decision by the Corps of Engineers (Corps) to issues a Section 404 permit to allow construction of the Sand Creek segment of the project. The Corps, together with Idaho DOT, determined that the purpose and need for the project was to alleviate traffic congestion and improve traffic safety on U.S. 95 by constructing a "non-stop" facility that would allow traffic to avoid traveling through downtown Sandpoint. An additional purpose of the project was to provide bicycle and pedestrian facilities. In issuing the permit, the Corps rejected four alternatives that would have been less damaging, finding that the alternatives were impractical. The Corps based its impractical findings on several grounds, including failure to meet purpose and need. The permit, granted on September 21, 2007, allowed Idaho DOT to fill approximately eleven acres of wetland.
Plaintiffs challenged the Corps decision to grant the Section 404 permit, alleging that the Corps failed to consider and select less environmentally damaging alternatives. The plaintiffs argued that the Corps improperly failed to consider four alternatives to the project that were less environmentally damaging. Plaintiffs also challenged the Corps selection of an alternative that required construction of habitat enhancement areas (HEAs) which themselves would require filling jurisdictional wetland areas. The district court granted summary judgment to the Corps.
Clean Water Act - Section 404
Consideration of Alternatives. The court found that the Corps properly determined that none of the four alternatives advocated by plaintiffs as less environmentally damaging were practical. The court noted that there was sufficient information in the record to support the Corps' findings that the alternatives were not practical. The court stated that the Corps properly considered the purpose and need for the project, and could properly rely on the project sponsor's stated purpose and need in making its own determination of purpose and need for the project.
Mitigation Measures. The court rejected plaintiffs claim that the Corps should not have selected an alternative that required construction of the HEAs. The court noted that the Corps properly determined that construction of the project without the HEAs was impractical and that the Section 404 guidelines allow the Corps to "utilize planning and construction practices to institute habitat development and restoration to produce a new or modified environmental state of higher ecological value by displacement of some or all of the existing environmental characteristics." The court found that the administrative record established that the selected alternative "will result in a greater number of acres of new wetlands than the acreage of wetland lost."