Case 106



Walsh v. United States Army Corps of Engineers, 757 F. Supp. 781 (W.D. Tex. 1990).

Property owners sought a preliminary injunction against the Army Corps of Engineers and the city of San Antonio after the Corps issued a permit to the San Antonio Water Board that authorized construction of Applewhite Dam and Reservoir. Construction of the dam would require inundation and destruction of plaintiffs' property, which included dozens of significant prehistoric and historic archeological sites. Despite the onset of eminent domain proceedings, plaintiffs did not agree to the city's offer to purchase their property. Plaintiffs argued that the Corps issued the permit in violation of the National Historic Preservation Act (NHPA), the Clean Water Act, and the National Environmental Policy Act (NEPA).

The court's opinion focused on the alleged NEPA and NHPA violations. In discussing the NHPA claim, the court noted that NHPA and NEPA create only procedural, not substantive rights. 757 F. Supp. at 784. Under NHPA, the court's role is to determine whether the Federal agency has followed the procedures for consultation with the Advisory Council on Historic Preservation. Id. Plaintiffs alleged that the Corps violated NHPA by issuing the permit before the parties signed a Programmatic Agreement.

The district court disagreed, finding that the Corps had complied with NHPA even though it issued a permit prior to signing the agreement. The court based its decision on several factors. First, the Corps appropriately surveyed, tested, and evaluated the project area and consulted with the Texas State Historic Preservation Officer (SHPO) throughout the review process. Id. at 787. Second, the Corps submitted four draft agreements to the Council and the SHPO and, in addition, consulted with several interested parties. Third, the Corps continued to negotiate pursuant to Section 106 even after it issued the permit. Most important, according to the court, the Corps issued the permit subject to five special conditions that called for environmental mitigative efforts. These included a restriction on the actions of the San Antonio Water Board until the Programmatic Agreement was signed. Id. at 788. Such a condition, the court found, was appropriate in light of 36 C.F.R. § 800.3(c) of the Council's regulations, which does not prohibit phased compliance with Section 106 at different stages in planning, nor does it bar an agency from authorizing nondestructive planning activities preparatory to an undertaking. 757 F. Supp. at 789.

In regard to the NEPA and Clean Water Act claims, plaintiffs alleged that the Corps failed to analyze the project's cumulative impacts with other reasonably foreseeable future actions. Id. at 785. The court explained that the cumulative impacts of actions proposed, not merely contemplated, must be considered under NEPA. Id. at 786. Further, the court pointed to the Council on Environmental Quality's regulations which state that a proposal exists when the agency is preparing to make a decision, and the effects thereof can be meaningfully evaluated. Id. (citing 40 C.F.R. § 1508.23 (1989)). Applying the above definitions, the court found that the Corps was simply contemplating future reservoirs, not proposing such future actions. To support this conclusion, the court observed that the city Water Board had not applied for permits, there was no evidence of detailed planning for potential sites, and the project was approved and financed separately by the city of San Antonio without consideration of any other potential reservoirs. Id. at 785.

The court also rejected plaintiffs' Clean Water Act claim, finding that the Corps had properly evaluated the probable impacts of the project and had balanced its public benefits against its reasonably foreseeable detriments. Id. at 786.

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