## Facts

- Environmental organizations challenged two Corps actions in Louisiana involving bottomland hardwood wetlands.
- The Corps issued six individual Clean Water Act § 404 permits allowing private landowners to clear and convert about 5,200 acres of wetlands to agricultural use.
- The wetlands were treated as “special aquatic sites,” triggering heightened scrutiny and a presumption of practicable alternatives for non-water-dependent projects under the § 404(b)(1) guidelines.
- The Corps approved the permits with modifications and conditions, including limits on clearing size, stream buffer zones, grassed turnrows, and compliance with state best management practices.
- Separately, the Corps planned the Sicily Island Area Levee Project, a federal flood-control project affecting about 75,000 acres, supported by a 1981 EIS.
- After the 1981 EIS, an intervening Fifth Circuit decision (Avoyelles III) clarified federal regulatory reach over wetland-related agricultural clearing, raising questions about the land-use baseline assumed in the EIS.
- The district court upheld both the permits (as compliant with NEPA and the § 404(b)(1) guidelines) and the Corps’ decision not to prepare a supplemental EIS for the levee project.

## Issues

1. Whether the Corps’ issuance of six § 404 permits for wetland conversion complied with NEPA and the § 404(b)(1) guidelines, including the practicable-alternatives requirement for special aquatic sites.
2. Whether the Corps took an adequate NEPA “hard look” at whether intervening legal developments required a supplemental EIS for the Sicily Island Area Levee Project.

## Decision

- The court affirmed the judgment upholding the six § 404 permits.
- The court held the Corps permissibly assessed practicable alternatives (including cost, technology, and logistics in light of project purposes) and imposed mitigation conditions reflecting reasoned decisionmaking.
- The court vacated the judgment upholding the Corps’ refusal to supplement the Sicily Island EIS and remanded for the Corps to perform an adequate analysis of whether a supplemental EIS was required in light of intervening legal changes.
- The court applied a deferential review focused on whether the agency took the required “hard look,” placing the burden of persuasion on the challengers to the no-supplement decision.

## Legal Principles

- NEPA is primarily procedural: agencies must take a “hard look” at environmental consequences and support decisions with a reasoned record.
- An agency must supplement an EIS when significant new circumstances or information relevant to environmental concerns bear on the proposed action or its impacts.
- Under the § 404(b)(1) guidelines, discharges into special aquatic sites receive heightened protection, and non-water-dependent projects in wetlands face a presumption that practicable alternatives exist.
- “Practicable alternatives” are assessed considering cost, existing technology, and logistics in light of overall project purposes; agencies may rebut the presumption through record-based analysis and may condition permits to reduce impacts.

## Conclusion

The Fifth Circuit upheld the Corps’ wetland-conversion permits as consistent with NEPA and the § 404(b)(1) guidelines, but required the Corps to reconsider—through an adequate NEPA analysis—whether intervening legal developments changed the assumptions underlying the levee project’s 1981 EIS such that a supplemental EIS was necessary.


Louisiana Wildlife Fed’n, Inc. v. York, 761 F.2d 1044 (5th Cir. 1985)