## Facts

- A developer proposed a private marina and boating facility in a man-made cove connected to Back Bay in Virginia Beach, Virginia, about 3,000 feet from the Back Bay National Wildlife Refuge.
- The U.S. Army Corps of Engineers issued permits under Clean Water Act § 404 and Rivers and Harbors Act § 10 allowing, among other work, an expansion from 12 to 76 boat slips, dredging/excavation, and construction of related marina structures.
- The U.S. Fish and Wildlife Service warned that increased access for jet skis and powerboats in a shallow-water system would likely cause sediment resuspension, pollution, shoreline erosion, destruction of submerged aquatic vegetation and wetlands, and wildlife disturbance.
- Fish and Wildlife recommended preparation of an Environmental Impact Statement (EIS) under NEPA.
- The Corps instead prepared an Environmental Assessment (EA) and issued a Finding of No Significant Impact (FONSI), relying heavily on a proposed no-wake zone (NWZ) to reduce boating impacts near the Refuge.
- The Corps recognized enforcement problems and lacked assurances of staffing, funding, or compliance; the permit did not require enforcement or provide funding, and the NWZ was unmarked and unenforced.
- Environmental groups sued under the APA, alleging NEPA noncompliance; the district court granted summary judgment to the Corps.

## Issues

1. Whether the Corps violated NEPA by issuing a FONSI and declining to prepare an EIS for the marina project given potential impacts on a sensitive wildlife refuge.
2. Whether the Corps could lawfully rely on mitigation (the NWZ) to support a FONSI where implementation and enforcement were uncertain and not secured in the permit or otherwise reasonably assured.

## Decision

- The Fourth Circuit vacated the district court’s judgment for the Corps.
- The court held the Corps’ FONSI was arbitrary and capricious because it depended on mitigation measures whose implementation and enforcement were not reasonably assured.
- The court remanded to the Corps for preparation of an EIS and further proceedings consistent with NEPA.
- Having found a NEPA procedural violation, the court declined to decide additional challenges to the permit on other grounds.

## Legal Principles

- NEPA requires agencies to take a hard look at environmental consequences and prepare an EIS for major federal actions significantly affecting the human environment.
- An agency may rely on mitigation to support a FONSI only when the mitigation measures are sufficiently definite and reasonably likely to be carried out, including through enforceable commitments when necessary.
- A FONSI is arbitrary and capricious when it rests on mitigation that is speculative, unsupported by the administrative record, or not secured through permit conditions or other reliable mechanisms.
- Under APA review, courts set aside NEPA determinations when the agency’s reasoning and record do not rationally support the conclusion of no significant environmental impact.

## Conclusion

The Fourth Circuit required an EIS because the Corps’ decision to forgo one depended on a no-wake zone that was central to the EA yet lacked assured funding, marking, and enforcement, making the Corps’ no-significant-impact finding unlawful under NEPA.


Friends of Back Bay v. U.S. Army Corps of Eng’rs, 681 F.3d 581 (4th Cir. 2012)