July 12, 2012

What a difference a circuit makes

By Damien M. Schiff Senior Attorney

Last week the Third Circuit Court of Appeals ruled in State of Delaware Department of Natural Resources & Environmental Control v. United States Army Corps of Engineers that the Corps’ Delaware River dredging project was exempt from Clean Water Act regulation.  The Corps relied on the same provision of the Clean Water Act—Section 404(r)—that we unsuccessfully invoked before the Fifth Circuit in Board of Mississippi Levee Commissioners v. EPA to challenge EPA’s veto of Yazoo Backwater Project.

Recall that Section 404(r) exempts certain federal water projects from Clean Water Act requirements.  To obtain the exemption, the sponsoring federal agency must submit an environmental impact statement to Congress detailing the impacts of the authorized project, and Congress must subsequently appropriate funds for the project.

One of the reasons the Fifth Circuit relied on to reject our invocation of Section 404(r) was that the Yazoo Project EIS had been submitted to Congress before the Corps had signed the EIS’s “record of decision.”  The Third Circuit squarely rejected that argument in last week’s decision, ruling that the ROD has nothing to do with the finalization of the EIS for purposes of Section 404(r).  The Third Circuit also rejected an argument that the defendants in the Yazoo Backwater case had argued, namely, if the Corps decides to do a supplemental EIS (because of the passage of time between the original EIS and the decision to commence the project), then the original exemption lapses.  The court reasoned that so long as the project does not change in a material way, the original 404(r) exemption will continue to apply.

The Third Circuit in a footnote made a halfhearted attempt to distinguish Board of Mississippi Levee Commissioners, observing that the Fifth Circuit relied on several reasons—not just the ROD argument—to conclude that Section 404(r) did not apply to the Yazoo Project.  The Third Circuit may be right that other grounds supported the Fifth Circuit’s judgment, but it’s clear in my view that the reasoning of the two appellate courts on the ROD issue is irreconcilable.

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