5.2. SR 09-08-1997 - Laserfiche WebLink

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DORSEY & WHITNEY LLP Mr. Stephen Rohlf Page 10 August 13, 1997 related projects must be considered in the EAW process. The Court ruled that the Department of Agriculture in Trout Unlimited, by deferring the full analysis of the environmental implications of possible environmental impacts to later permitting and mitigation decisions, violated its duty under the EQB rules to require an EIS where there exists a "potential for significant environmental effects." Id. at 909. The Trout Unlimited case is particularly instructive for projects such as the one addressed in the Urban Service EAW. The Court of Appeals there recognized that the EAW represents only a starting point in the environmental review process. The Court emphasized that the "very purpose of an EIS... is to determine the potential for significant environmental effects before they occur." 528 N.W. 2d at 909 (original emphasis). Recognizing that the EAW is a brief document designed essentially to identify potential concerns, the Court emphasized that when the EAW indicates "that a project may harm the environment, use of that indication to conclude that an EIS is unnecessary, 'makes a mockery of the EAW as a decision-making tool.'" Id. The Trout Unlimited ruling makes it clear that before a negative declaration on the need for an EIS can be issued, an EAW must first identify all potential environmental impacts that may require further investigation, and second, identify project-specific resource protection measures to be incorporated in a project so that those impacts can be avoided to the extent possible. An EAW which does not comprehensively identify anticipated impacts or does not carefully consider available mitigation measures that may be appropriate in the specific circumstances presented, including avoidance of impacts, but instead relies on development of mitigation measures or restrictions during a later permitting process is not permissible under MEPA. MSA's Urban Service EAW clearly fails to meet the standards established in Trout Unlimited. The MSA report repeatedly identifies potential environmental impacts, but fails to address their significance under the requirements of MEPA. It also acknowledges with regard to several topics (e.g., wetlands, water appropriation, runoff, etc.) that there are likely environmental impacts but the scope of these effects has not yet been determined. The report also frequently substitutes vague recommendations for future mitigation or permit restrictions (e.g., fish and wildlife, water resources and use, groundwater, etc.) for the required analyses of the unmitigated impacts or project-specific mitigation measures. Indeed, the Urban Service EAW is practically a model for the type of boilerplate environmental review