Clean Water Act: General Permits for Local Development Wins Approval
The Ninth U.S. Circuit Court of Appeals has upheld the federal government's decision to issue five broad-ranging "general permits" allowing the filling of wetlands as part of the Anchorage Wetlands Management Plan. The general permits had been challenged by several environmental groups in Alaska, which charged that they covered too diverse a range of activities and would not result in "minimal" disruption of the environment, as the federal government claimed.
The five permits, which covered projects potentially dealing with 2,142 acres of wetlands, covered the following activities:
o Residential site preparation and driveways.
o Roads and other "linear development".
o Commercial, institutional, and community development.
o Industrial development.
o Wetlands, habitat, and water quality enhancement projects.
The U.S. Army Corps of Engineers, which proposed the permits, estimated that, while 2,142 acres could potentially be implicated, the permits would probably result in the destruction of only 360 acres of wetlands. The Corps has jurisdiction to issue wetlands fill permits under regulations associated with the federal Clean Water Act.
The Alaska Center for the Environment and several other environmental groups sued. The environmentalists' major argument was that each individual permit covered activities too diverse to satisfy the requirement that general permits cover activities "similar in nature".
For example, the environmentalists pointed out that under Anchorage's zoning ordinances, the residential permit could apply to single-family homes, two-family dwellings, row-houses, rooming houses, and other residential structures - which, the environmentalists argued, encompassed too broad a range of activities to fit under the federal regulations. But the Ninth Circuit rejected this argument. "The conditions stated above illustrate not only similarity in environmental effects, but also similarity in the nature of the projects," the court wrote. "While it may be true that the regulations do not specifically distinguish between such structures as 'single-family housing' and 'two-family dwellings', we are not persuaded that the general permitting process must necessarily require such fine distinctions."
The environmentalists also argued that the Corps cannot make "a sufficient public-interest analysis" as required by law when such a broad range of activities is contained in the same permit, but the Ninth Circuit rejected that argument as well. "The permit evaluation shows that the Corps wished to provide predictability for property owners and reduce wetlands processing time while simultaneously protecting higher value wetlands," the court wrote. "Other portions of the evaluation list more specific considerations. For example, the evaluation notes the Corps' consideration of such human-use characteristics as benefits to the local economy, impacts on traffic, and community cohesion. These considerations were clearly guided by the voluminous restrictions placed on the general permits."
The Ninth Circuit also rejected the environmentalists' argument that the overall impact - probably filling 360 acres of wetlands and potentially filling 2,100 acres of wetlands - would have more than a "minimal" environmental impact, as the Corps argued. The court noted that the wetlands management plan, with which the general permits conform, was created by the City of Anchorage in conjunction with four state and federal agencies and used an A-B-C rating system to value the quality of the wetlands. This rating system was then used to evaluate the likely environmental impact. For this reason, the court concluded, the Corps did not arbitrarily and capriciously in concluding wetland impact would be minimal.
Alaska Center for the Environment v. West, No. 96-36190, 98 Daily Journal D.A.R. 9997 (issued September 16, 1998).
For Alaska Center for the Environment: Anthony N. Turrini, National Wildlife Federation, Anchorage.
For Army Corps of Engineers: John T. Stahr, U.S. Department of Justice, Washington, D.C.