The two environmental organizations challenging the construction of Interstate 69 in southern Indiana lost in federal court Tuesday. The lawsuit filed by Hoosier Environmental Council and Citizens for Appropriate Rural Roads dealt with the stretch of the interstate from Washington, Ind. to Scotland, Ind.
The alignment of the road selected by the Indiana Department of Transportation and the Federal Highway Administration in this portion, called Section 3, would affect nearly 5 acres of various types of wetlands, nearly 2 acres of open ponds and roughly 1,000 linear feet of streams within the right-of-way to be relocated.
The interstate is being constructed in tiers. The first tier decided what general route to use from Indianapolis to Evansville. The second tier provides for more specific locations of sections of the highway.
Instead of the United States Army Corps of Engineers issuing one Section 404 permit for discharge of pollutants under the Clean Water Act for the entire project, it decided to have an application for each segment of the highway. In order to qualify for a permit, the project must, among other things, be the “least environmentally damaging practicable alternative.”
The Corps issued a permit to INDOT regarding Section 3, allowing INDOT to discharge dredged and fill material into the waters of the United States.
The plaintiffs sued in the Southern District of Indiana, seeking a declaration that the Corps violated Section 404 of the Clean Water Act by issuing a permit for the work on Section 3 without fulfilling Section 404’s requirements, and to prevent further construction of that section or the remainder of the interstate until the Corps complied with Section 404.
They maintain that the CWA requires the Corps to undertake an analysis of whether there is a less damaging practicable alternative for the entire interstate project, not just the section at issue, and that the tiering process lets INDOT work around the CWA.
Judge Larry J. McKinney rejected that argument.
“If granting a permit for one section of the route proved impossible under strictures of the CWA, then it is possible that INDOT and the FHWA might have (to) re-evaluate overall alignment alternatives, but there is no CWA requirement that the Corps must take it upon itself to examine alternatives to a project for which no permit is sought,” he wrote.
The plaintiffs also claimed the Corps public interest review for the Section 3 permit was inadequate because it failed to examine the probable negative impacts of the entire interstate project.
The judge pointed out that the Corps only has the authority to permit or regulate project activity that occurs in the navigable waters of the U.S. He also held the Corps did weigh each of the required general factors and several other specific factors with regards to Section 3, and its public interest review was not arbitrary, capricious, in violation of the law, or contrary to the substantial weight of the evidence.
McKinney granted the defendants’ motion for summary judgment and denied the plaintiffs’ motion for summary judgment.