Judge upholds Sand Creek Byway discharge permit

SANDPOINT — A federal judge in Boise issued an order Tuesday affirming a U.S. Army Corps of Engineers permit required for the Highway 95 bypass.

Judge Edward Lodge denied a motion for summary judgment filed by the North Idaho Community Action Network and granted summary judgment to the corps, which issued the discharge permit for the Sand Creek Byway in 2007.

A spokesperson for the corps was not immediately available for comment on Tuesday and a message left at the agency’s public affairs office in Seattle was not returned.

It was unclear Tuesday if NICAN planned to seek relief through the 9th U.S. Circuit Court of Appeals. Liz Sedler, NICAN’s executive director, was also unavailable for comment and did not respond to an e-mail and a phone message seeking comment.

NICAN filed suit against the corps last year, challenging the validity of the permit needed to discharge fill into Sand Creek in order to construct the highway realignment project and an adjacent bike and pedestrian path.

Lodge’s ruling on the discharge permit comes about 13 months after he rejected NICAN’s lawsuit accusing the Federal Highway Administration of violating the National Environmental Policy Act by approving the bypass. NICAN unsuccessfully appealed that ruling to the 9th Circuit.

In the suit to nullify the federal discharge permit, NICAN accused the corps of failing to consider and select several less-damaging practicable alternatives to the byway’s current configuration. The alternatives included a stripped down two-lane bypass, a bypass without a pathway, moving the pathway to the shore of Lake Pend Oreille or through town, and a configuration with fewer or no habitat enhancement areas.

But Lodge held that the more spartan bypass alternative neglected to address the purpose of the project, which is to address downtown congestion and to enhance facilities for pedestrians and cyclists. Lodge also concluded that the corps had recommended at least twice that the pathway be excised from the project to limit impacts to the creek, but FHWA refused.

“FHWA’s refusal to consider an alternative is not before the Court in this matter. This action challenges the conduct taken by the Corps,” Lodge said in the 16-page ruling.

Lodge found that the corps had evaluated a configuration with relocated pathways, but the agency deemed them impracticable because of safety and logistic issues, which include the acquisition of private property and easements.

Lodge further held that the habitat enhancement areas, which are designed to offset wetland impacts resulting from the pathway, are essential elements of the project.

“The Sand Creek pathway cannot be practicably located elsewhere and, therefore, the impacts on the wetlands are unavoidable and must be mitigated,” Lodge wrote.