Federal Judge Upholds Duck River Permit

On March 31, 2009, U.S. District Court Judge Karon Bowdre, of the Northern District of Alabama, issued an order and memorandum opinion upholding the U.S. Army Corps of Engineers' issuance of a Clean Water Act section 404 permit to the City of Cullman for the construction of a 650-acre drinking water reservoir on the Duck River in Cullman County, Alabama. For a copy of her memorandum order, click here.

Last year, various environmentalists sued the Corps, arguing that the Corps had failed in its responsibilities under the National Environmental Policy Act when the Corps determined that the proposed reservoir would have "no significant impact" on the environment. Such a determination by the Corps was predicated on the Corps' requirement for various mitigation measures and restrictive permit conditions. The City of Cullman and the Cullman Utilities Board, represented by a team of Balch & Bingham attorneys to include Bruce Barze and Jim Noles, intervened as defendants in the litigation. Earlier, Balch & Bingham had also provided legal assistance and guidance to Cullman in preparing the Environmental Assessment Supplement which supported the Corps' issuance of the permit.

All parties moved for summary judgment based on the permit's administrative record and filed supporting pleadings. After reviewing and considering the various arguments, Judge Bowdre ruled that the Corps had indeed taken a requisite hard look at all potential impacts, that an adequate alternatives analysis had been conducted, and that the need for the project exists. The plaintiffs' case was dismissed with prejudice.