Sierra Club v. Antwerp, 661 F.3d 1147 (D.C. Cir. 2011)

(case involves CWA §404 permitting, NEPA and consultation requirements under the Endangered Species Act (ESA); at issue was plaintiff’s challenge to issuance of CWA §404 permit to developer to fill 54 acres of Florida wetlands for mixed-use development involving shopping mall and large parking lot; permit reinstated after human error discharged sediment and turbid water into a local creek; U.S. Army Corps of Engineers’ (COE) decision finding that there were no other practicable, less environmentally damaging means to satisfy the project’s purpose was not in violation of the CWA; COE  decision that no Environmental Impact Statement (EIS) necessary after determining human error caused the unauthorized discharges and where assurances were made prior to the decision to reinstate the permit upheld in part; COE’s  Finding of No Significant Impact (FONSI) was incomplete in addressing the affects from potential fragmentation of the “threatened” indigo snake’s habitat as required under NEPA and ESA, but that potential impact on listed wood stork sufficiently mitigated; matter remanded for consideration of impacts on indigo snake; case addresses whether and when alternatives to development project can be determined to be impractical based on economics, and is precedential on when federal government agency can issue a FONSI rather than an EIS).

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