## Facts

- Utah and regional officials adopted the “Shared Solution” transportation plan to address projected growth along the eastern shore of the Great Salt Lake, including (1) I-15 improvements, (2) expanded transit, and (3) construction of the Legacy Parkway, a limited-access highway paralleling the lakeshore.
- The project area included Great Salt Lake wetlands described as significant habitat for migratory birds and other wildlife, with heavy annual bird use concentrated along the eastern shore.
- Federal approvals were required because the Parkway would connect to federal highways and would fill wetlands, requiring a Clean Water Act (CWA) § 404 permit.
- Utah’s transportation agency prepared an Environmental Impact Statement (EIS) that the Federal Highway Administration (FHWA) adopted for highway access decisions; the U.S. Army Corps of Engineers (Corps) adopted it for the § 404 permit decision.
- FHWA and the Corps issued Records of Decision approving the project and authorizing wetland impacts.
- Environmental organizations and other plaintiffs challenged the approvals under the Administrative Procedure Act, alleging NEPA violations (inadequate alternatives and impact analysis) and CWA § 404 violations (failure to select the least environmentally damaging practicable alternative).

## Issues

1. Whether the Final EIS satisfied NEPA by taking a “hard look” at reasonable alternatives, including alignment/design options and land-use or transit approaches affecting travel demand.
2. Whether the Final EIS adequately analyzed indirect and cumulative effects, including induced growth, land-use change, and resulting impacts on wetlands, wildlife, Salt Lake City, and air quality.
3. Whether the Corps’ § 404 permit decision complied with the § 404(b)(1) guidelines by properly evaluating practicable, less-damaging alternatives for discharges into wetlands.
4. What remedy was appropriate if the agencies’ actions were arbitrary and capricious under the APA.

## Decision

- The Tenth Circuit affirmed in part, reversed in part, and remanded.
- The court held that certain portions of the agencies’ NEPA analyses and decisions were adequately supported and were upheld under APA review.
- The court held that key portions of the alternatives analysis and some environmental-effects analysis were insufficiently developed and required further agency proceedings.
- The court concluded that, to the extent the Corps rejected less-damaging wetland alternatives based on an overly restrictive project purpose or inadequate explanation, the § 404 permit decision was arbitrary and capricious.
- The court remanded for additional NEPA and CWA analysis consistent with its opinion, setting aside the challenged approvals to the extent they rested on the identified deficiencies.

## Legal Principles

- NEPA is procedural but requires a “hard look” supported by a reasonably thorough discussion of probable significant environmental consequences so the public can understand and test the agency’s reasoning.
- An agency may not define a project’s purpose and need so narrowly that it effectively predetermines the result by excluding reasonable alternatives.
- An EIS must address reasonably foreseeable indirect and cumulative effects, including induced growth and related land-use changes, when those effects bear on environmental impacts.
- Under CWA § 404(b)(1), the Corps may not authorize discharges into wetlands if a practicable alternative exists with less adverse impact and without other significant adverse environmental consequences; the Corps must explain its rejection of less-damaging options.
- Under the APA, courts defer to agency technical judgments when adequately explained, but must set aside actions that fail to consider relevant factors or lack a rational, record-based explanation.

## Conclusion

The Tenth Circuit upheld parts of the federal approvals for the Legacy Parkway but required renewed NEPA and CWA review where the record did not adequately support the agencies’ treatment of reasonable alternatives and certain indirect and wetlands-related impacts, remanding for further proceedings.


Utahns for Better Transp. v. U.S. Dep’t of Transp., 305 F.3d 1152 (10th Cir. 2002)