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Court vacates permit based on ‘hope’

Can you count on people to do the right thing when no one’s looking? Not necessarily, according to the 4th U.S. Circuit Court of Appeals.

Earlier this week, a 4th Circuit panel vacated an Army Corps of Engineers   permit that would have let a developer build a mooring facility and concrete boat ramp near Virginia Beach’s Back Bay National Wildlife Refuge.

To protect nearby wetlands from the impact of expanding the number of boat  slips from 12 to 76, the permit called for horsepower limits on boat motors and posting signs about a “no-wake zone” within the Refuge. The Corps conceded local law enforcement didn’t have the personnel to enforce the NWZ restrictions but hoped for voluntary compliance through “education, signage and public pressure.”

The appellate panel gave the Corps credit for recognizing the environmental harm that could come “if watercraft are suffered to freely scurry about the Refuge,” but it apparently thought the Corps placed too much faith in human nature.

“No doubt the thoughtful folks who leave cauldrons of candy on their front porches at Halloween hope the neighborhood trick-or-treaters will behave themselves and take only their fair share, but common experience has shown that those hopes often remain unfulfilled,” wrote Judge Robert B. King in Friends of Back Bay v. U.S. Army Corps.

“While the betrayal of trust on All Hallows’ Eve might cost the credulous a bag or two of sweets, the potential cost to the Refuge in this case from the Corps’ hopefulness is, inarguably, considerably higher,” the panel said. It called for preparation of an Environmental Impact Statement, and sent the case back.

–Deborah Elkins

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