Case No. 1:98CV02700
Judge Emmet G. Sullivan
November 5, 1998
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________________________
NATIONAL WILDLIFE FEDERATION,
8925 Leesburg Pike
Vienna, Virginia 22184
Plantiff,
v.
DR. JOSEPH W. WESTPHAL, Assistant Secretary
of the Army for Civil Works; LIEUTENANT
GENERAL JOE N. BALLARD, Commander in Chief,
U.S. Army Corps of Engineers; MAJOR GENERAL
PHILLIP R. ANDERSON, Commander, Mississippi
Valley Division, U.S. Army Corps of Engineers;
COLONEL ROBERT CREAR, Commander, Vicksburg
District, U.S. Army Corps of Engineers; and the
UNITED STATES ARMY CORPS OF ENGINEERS,
Defendants.
________________________________________________
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Introduction
1. This action seeks relief from, and judicial review of, the March 31, 1997 decision of the United States Army Corps of Engineers (the Corps) to approve the Big Sunflower River Maintenance Project (the Project). Plaintiff National Wildlife Federation seeks a declaration that the Corps' decision violates the Water Resources Development Acts of 1986 and 1996 (WRDA), 33 U.S.C. § 2201, et seq., and the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321, et seq., and an order preventing defendants from carrying out their decision until they comply with those statutes. Specifically, the Corps has violated WRDA by (1) failing to require the Project's sponsors to share any of the costs of the Project and (2) failing to make a determination that the Project will have a negligible adverse effect on fish and wildlife. The Corps has violated NEPA by failing to analyze (1) the requirements of WRDA and (2) feasible nonstructural alternatives in the Supplemental Environmental Impact Statement (SEIS) for the Project.
Jurisdiction and Venue
2. This Court has subject matter jurisdiction under Section 702 of the Administrative
Procedure Act, 5 U.S.C. § 702, and 28 U.S.C. §§ 1331, 1361,
and 2201-2202.
3. Venue is appropriate in the District of Columbia pursuant to 28 U.S.C.
§ 1391(e) because plaintiff National Wildlife Federation and defendants
Zirschky and Ballard reside in this District.
Parties
Plaintiff
4. Plaintiff National Wildlife Federation (National Wildlife) is a non-profit
corporation organized under the laws of the District of Columbia, with its
main headquarters office in Vienna, Virginia, its national office in Washington,
D.C., and regional field offices in Vermont, Georgia, Michigan, Texas, North
Dakota, Montana, Colorado, Oregon, and Alaska. National Wildlife is a national
conservation organization with approximately one million members from throughout
the country, including the state of Mississippi. National Wildlife works
to educate, inspire, and assist persons and entities of diverse cultures
to conserve natural resources and protect the Earth's environment. National
Wildlife takes an active role in monitoring legislation and the actions
of state and federal agencies, including the U.S. Army Corps of Engineers,
that have an impact on the nation's rivers. National Wildlife has been actively
involved for many decades in the protection and management of the natural
resource values of the Mississippi River basin, and many other U.S. rivers
and streams.
5. National Wildlife is governed by its 46 affiliates located in 45 of the
50 states and the Virgin Islands. The affiliates are autonomous, statewide
grass roots organizations primarily concerned with the conservation of natural
resources. They determine the character of NWF's Board of Directors by electing
13 Regional Directors, 3 Vice Chairs, and the Chair Elect. They also approve
and direct NWF's conservation policies by voting on conservation resolutions
which direct NWF's resource work, and approve all changes to NWF's governing
bylaws. NWF and its affiliates work closely together on conservation issues
of local and national importance, combining the affiliates' regional activism
and knowledge of local conditions with NWF's environmental expertise and
national presence. One of these affiliates is the Mississippi Wildlife Federation.
6. National Wildlife brings this action on behalf of its members who reside
and own property near the Big Sunflower River and use its waters, nearby
lands, and associated natural resources for many purposes, including farming,
commercial fishing, hunting, wildlife observation, and general aesthetic
enjoyment. The Project will interfere with these activities and adversely
affect its members' environmental, recreational, property and aesthetic
interests.
Defendants
7. Defendant Dr. Joseph W. Westphal is the Secretary of the Army for Civil
Works, and is sued herein in his official capacity. His principal duty is
the overall supervision of the functions of the Department of the Army relating
to programs for conservation and development of the nation's water resources,
including flood control. 10 U.S.C. § 3016(b)(3). He directs and supervises
the Civil Works Program of the United States Army Corps of Engineers, including
the Project which is the subject of this lawsuit.
8. Defendant Lieutenant General Joe N. Ballard is the Chief of Engineers
and Commander of the U.S. Army Corps of Engineers and is sued herein in
his official capacity. He supervises and manages all Corps decisions and
actions, including the Project which is the subject of this lawsuit.
9. Defendant Major General Phillip R. Anderson is the Commander and Division
Engineer of the Mississippi Valley Division of the U.S. Army Corps of Engineers,
and is sued herein in his official capacity. His predecessor, Major General
Robert B. Flowers, signed the Record of Decision authorizing the Project
which is the subject of this lawsuit. The Mississippi Valley Division includes
the Vicksburg District.
10. Defendant Colonel Robert Crear is the Commander and District Engineer
for the Vicksburg District of the U.S. Army Corps of Engineers, and is sued
herein in his official capacity. He supervises and manages all Vicksburg
District decisions and actions, including the Project which is the subject
of this lawsuit. The Project is located in the Vicksburg District.
11. Defendant United States Army Corps of Engineers (the Corps) is an agency
of the federal government. The Corps has the primary authority for construction
and maintenance of federal flood control and navigation projects in the
Mississippi River basin, including the Project which is the subject of this
lawsuit.
Facts
12. In March 1995, the Corps issued a draft Supplemental Environmental Impact
Statement (SEIS) analyzing the Project. In May 1995, the Mississippi Wildlife
Federation submitted timely comments on, and criticism of, the draft SEIS.
SEIS, App. D, Draft SEIS Comments/Responses, pp. 1-11, 70-74. In July 1996,
the Corps issued a final Project Report and SEIS on the Project. On March
31, 1997, the Corps issued a Record of Decision containing its final agency
action approving the Project.
13. The Project will be carried out in the Big Sunflower River Basin in
the Mississippi Delta, in the northwest portion of Mississippi. Most of
the streams in the Delta have been severely altered by flood control projects
and agricultural activities, but the Big Sunflower River is one of the few
exceptions. It has had only limited in-channel dredging and still retains
its sinuous flow pattern. SEIS, App. B, App. 1, p. 1.
14. The Corps has not performed any flood control project in the Big Sunflower
River Basin since 1968. Most of the work prior to that time consisted of
clearing and snagging. SEIS, p. 1-3. When the Big Sunflower River was dredged
in the 1950's and 60's, dredging only occurred on approximately 12 miles.
SEIS, App. D, Draft SEIS Comments/Responses, p. 55. The Project will dredge
areas that have never been dredged before. Compare Project Report, p. 14,
with SEIS, p. 1-4.
15. The Project involves 28.3 miles of channel clearing and snagging and
104.8 miles of excavation of stream bottom, for a total of 133.1 miles of
channel maintenance work. Approximately 2 to 4 feet, or 8.42 million cubic
yards, of sediment and instream vegetation will be removed from the streams.
SEIS, p. ii.
16. The Project is designed to increase channel depths and alleviate flooding.
Construction equipment will consist of a hydraulic dredge and a dragline.
SEIS, p. ii. The dredge rests on a floating barge and uses a cutterhead
and suction pipe to sweep across the channel bottom and remove the water-sediment
slurry through a floating pipeline to a diked, onshore containment area.
Id., App. L, pp. 15-16. The dragline is a land-based machine that uses a
large bucket suspended from the end of a boom to swing into and drag along
the channel bottom and remove sediment. Id. at 15. To use a dragline, access
roads must be constructed and about 150 feet of trees and vegetation must
be removed from one side of the river. Id.
17. The fully funded cost of the Project is $62,485,000. Project Report,
p. i. The Federal government will pay 100% of these costs. The Corps has
not required cost sharing by local sponsors. The two local sponsors for
the Project are the Board of Mississippi Levee Commissioners and the Yazoo-Mississippi
Delta Levee District. SEIS, App. D, Draft SEIS Comments/Responses, pp. 5,
13.
18. The Corps proposed to begin construction of the Project in 1997, to
divide it into ten contract items, and to complete it within approximately
seven years. Project Report, pp. i, 24, 41. On September 17, 1998, the Corps
received one bid for a construction contract on Item 3 of the Project. This
Item involves clearing and snagging 7.2 miles of the Little Sunflower River
by dragline in Sharkey County, Mississippi. Project Report, p. 24. Clearing
and snagging involves removing the woody vegetation in the river channel
and the trees along the banks of the river. SEIS, App. D, Aug. 15, 1995
Public Meeting, p. 12.
19. The Project is designed to reduce damages from floods with a frequency
of one to two years. SEIS, App. D, June 28, 1994 Status Briefing, pp. 51-53.
It will reduce flooding from a 25-year flood like the one experienced in
1991 by only six inches. SEIS, App. B, p. 11; id., App. D, Draft SEIS Comments/Responses,
p. 11.
20. The Corps estimates that the Project will reduce the annual average
of acres flooded from 163,610 to 107,376. SEIS, App. D, Draft SEIS Comments/Responses,
p. 123. Dividing the total project costs of $62.485 million by the average
annual protected acreage of 56,000 acres yields a cost of about $1115 per
acre. In comparison, the frequently flooded land in the Project area is
worth, at most, only $550 per acre. SEIS, App. D, Draft SEIS Comments/Responses,
p. 4.
21. The primary beneficiaries of the Project are farm owners. Farming is
the dominant land use in the project area. SEIS, p. 3-14. There are no urban
areas within the Project area. Id., App. J, p. J-3. Eighty percent of the
claimed average annual benefits of the project are attributable to reduced
damage to agricultural crop and noncrop items. Id., p. J-18.
22. Dredging with an onshore dragline or a hydraulic dredge has both direct
and indirect environmental impacts. The direct impacts include the removal
and reduction of aquatic and riparian habitat for fish and wildlife, and
the burial and killing of biota. SEIS, App. L, p. 52. The indirect impacts
include bank erosion, increased streamflow, and reduction of game fish.
Id. at 55. Associated construction activities such as right-of-way clearing
and spoil disposal eliminate forested areas and wetlands and thereby reduce
habitat for terrestrial wildlife. SEIS, App. B, pp. 17-18.
23. The dredging and associated construction activities on the Project will
have significant adverse environmental effects. They will reduce waterfowl
habitat by 2,831 acres and will reduce wintering migratory waterfowl foraging
carrying capacity by 481,200 duck-days in a portion of the Yazoo River Basin,
which is the number one waterfowl wintering area in Mississippi. SEIS, p.
4-1 and App. B, p. 4. They will destroy 443 acres of forests containing
bottomland hardwood trees. SEIS, p. 4-2. They will cause a loss of 1,739
acres of optimal habitat for terrestrial animals such as birds and squirrels.
Id., p. 4-3. They will adversely affect 1,471 acres of wetlands. Id., p.
4-4. Fish spawning habitat will be reduced by 1,484 acres, or 10 percent.
Id., p. 4-6.
24. The Big Sunflower River contains native freshwater mussel beds of state
and national significance. The beds are "among the highest ever recorded
in North America" and are an economically valuable and renewable resource.
SEIS, App. B, p. 21; id., App. B, App.1, p. 9. In an April 1998 Briefing
Statement, the U.S. Fish and Wildlife Service has described these mussel
beds as "among the richest beds in the world in terms of density and
biomass." The Big Sunflower River is the only river in the Mississippi
Delta known to support extensive mussel communities. Id., App. B, App.1,
p. 1.
25. Freshwater mussels are an important and integral component of North
American riverine ecosystems. They serve as food for fishes and other vertebrate
predators. They are also economically important, serving as the source of
nuclei for a world-wide cultured pearl industry. SEIS, App. B, App. 1, p.
1. However, mussel populations are rapidly declining in North America. In
addition, the recent invasion of exotic zebra mussels threatens native species.
Id. at 9. The Big Sunflower River is relatively isolated from this invasion
and may prove valuable in providing "seed stock" for possible
future restoration efforts. Id.
26. The Project will kill native freshwater mussel beds in the Big Sunflower
River, destroying 43% of the total value of mussels. SEIS, App. J, p. J-22
and App. B, p. i. The total commercial value of the mussels in the river
is $3.0 million. SEIS, p. 4-8.
27. The adverse impacts of the Project cannot be totally alleviated. SEIS,
App. B, p. 20. To reduce or compensate for these impacts, the Corps developed
a mitigation plan. The primary feature of this plan is to acquire and reforest
1,907 acres of privately-owned cleared agricultural land. SEIS, p. 5-7 and
App. C, p. 6-3.
28. The mitigation plan also evaluated ways to reduce impacts on mussels,
but mussel habitat mitigation has never been approached on the magnitude
of this project. SEIS, App. B, p. ii. There is no proven methodology to
improve, restore or replace mussel habitat. Id., p. 21. The Corps' mitigation
plan for mussels is "largely experimental," and is only intended
to minimize, not compensate for, mussel losses. SEIS, App. D, Draft SEIS
Comments/Responses, pp. 88, 144-147; August 15, 1995 Public Meeting, p.
45. Even with mitigation, about 40% of the mussels will be destroyed. SEIS,
App. D, August 15, 1995 Public Meeting, p. 17.
29. The Project will not provide a permanent solution to preventing flood
damages in the Project area. SEIS, App. B, p. 24. Only a basin-wide effort
to address sedimentation of the water courses in the basin will ever provide
long-term, cost-effective maintenance. Id.
30. The useful life of the Project is 25 years. SEIS, App. C, p. 3-1. After
that time, flood conditions will return to pre-Project levels. Id.
31. After reviewing the proposed Project, the U.S. Fish and Wildlife Service
objected to it and recommended that the Corps consider acquisition by fee
title or easements of agricultural land and residences subject to flooding,
which would avoid all wildlife impacts and lessen future flood damage. SEIS,
App. B, p. 24. The Corps rejected this recommendation. SEIS, p. 2-1.
32. After reviewing the final SEIS, the U.S. Environmental Protection Agency
also objected to the Project and recommended "a measured non-structural
approach, e.g., acquisition of flowage easements, coupled with strategic
excavation within critical reaches" of the river as "an acceptable,
balanced opportunity for long-term project success." EPA stated that
"[w]hile this action is characterized as maintenance for funding responsibility
purposes, its scope transcends activities normally considered in this category."
33. The Corps' position is that the requirements of WRDA are inapplicable
to the Project. The Corps did not consider any requirements of WRDA in the
SEIS. SEIS, App. D, Draft SEIS Comments/Responses, pp. 7, 74, ; SEIS, p.
1-6. The Corps has not complied with any requirements of WRDA relating to
the Project.
34. The Corps' position is that the Project "was originally authorized
in 1944" and that the "proposed maintenance project is a feature
of that same project and was anticipated to be necessary at least once during
the life of the project." SEIS, App. D, Draft SEIS Comments/Responses,
p. 7.
35. The scope of the original Congressional authorization for work on the
Big Sunflower River is defined by the 1944 statute. It provides that "[t]he
project for flood control on the Big Sunflower [River] . . . is hereby authorized
substantially in accordance with the recommendations of the Chief of Engineers
in House Document Number 516, Seventy-Eighth Congress, second session, at
an estimated cost of $3,752,000." 58 Stat. 895.
36. The scope of the Project exceeds the scope of the work authorized in
House Document Number 516 (HD 516), in at least four respects:
a. First, the Chief of Engineers stated in (HD 516) that he "recommend[ed]
the improvements proposed by the [Mississippi River] Commission on Big Sunflower
River . . ., provided, that local interests . . . maintain the improvements
after completion." House Document No. 516, 78th Cong., 2d Sess. 2 (1944).
By accepting this recommendation, Congress determined in 1944 that maintenance
of the Big Sunflower River would be a local, not a federal, responsibility.
b. Second, HD 516 states (p. 8) that the improvement of the Big Sunflower
River "would consist of about 83 miles of snagging, 115 miles of clearing
and snagging, and 14 miles of channel enlargement." In contrast, the
Project Report on the new project states (p. 12) that "[r]ecommended
maintenance for the Big Sunflower River main stem consists of 58.2 miles
of restoration work (49.0 miles of 3-foot cleanout and 9.2 miles of channel
restoration to authorized width and grade)." Thus, the new project
would clean out and enlarge more than four times as many river miles (58.2
vs. 14) than Congress originally authorized.
c. Third, HD 516 specifically identifies (p. 11) the areas of the riverbed
that were targeted for cleanout in 1944:
Improvement of Big Sunflower River. Improvement would be channel snagging
from mile 0 to mile 21 and from mile 38 to mile 100, channel enlargement
from mile 21 to mile 35, and channel clearing and snagging from mile 35
to mile 38 and from mile 100 upstream to the mouth of the Hull Brake-Mill
Creek Canal at mile 212.
The new project would cleanout the river channel from mile 6.9 to 26.4,
26.6 to 28.4, 37.9 to 49.6, 50.2 to 53.9, and 54.1 to 75.6. Project Report,
p. 14. The only overlap between the new project and the original authorization
is between miles 21 to 26.4 and 26.6 and 28.4, a distance of only 7.2 miles.
Consequently, viewed on a mile-by-mile basis, the new project would clean
out 51 river miles that Congress never authorized for cleanout.
d. Fourth, the physical size of the channel cleanout in the new Project
is greater than the physical size of the channel cleanout in the original
authorization. HD 516 states (p. 11):
The enlarged channel would have a bottom width of 150 feet, bottom elevations
of 59.0 and 59.5 at miles 21 and 35, respectively, depth of flow of about
30 feet, an average water surface slope of 0.36 foot per mile, and a capacity
of approximately 20,000 cubic feet per second.
In contrast, Plate 28 of the Project Report for the new project shows that
the bottom elevation at mile 38.6 after cleanout would be 57 feet and the
channel would be 250 feet wide. This is a wider and deeper channel than
Congress authorized in 1944.
Claims
Count One: Violation of WRDA Cost-Sharing Requirements
37. Plaintiff alleges and incorporates by reference the allegations in paragraphs
1-36 above.
38. Section 103 of WRDA applies to "any project (including any small
project which is not specifically authorized by Congress and for which the
Secretary [of the Army] has not approved funding before the date of enactment
of this Act [Nov. 17, 1986]), or separable element thereof, on which physical
construction is initiated after April 30, 1986." 33 U.S.C. § 2213(e).
WRDA applies to projects which have costs assigned to flood control. 33
U.S.C. § 2213(a)(1). A separable element means "a portion of a
project-- (1) which is physically separable from other portions of the project;
and (2) which (A) achieves hydrologic effects, or (B) produces physical
or economic benefits, which are separately identifiable from those produced
by other portions of the project." 33 U.S.C. § 2213(f).
39. The Project is a project with costs assigned to flood control.
40. The Project has not been specifically authorized by Congress.
41. Physical construction of the Project was not initiated prior to April
30, 1986.
42. The Project is physically separable from prior flood control projects
in the Big Sunflower River Basin. It will achieve hydrologic benefits, or
will produce physical or economic benefits, which are separately identifiable
from those produced by prior flood control projects in the Basin.
43. The requirements of section 103 of WRDA apply to the Project.
44. Section 103(a) and (b) of WRDA require non-Federal interests, i.e.,
local sponsors, to contribute a minimum of 35% of the costs of projects
for flood control. 33 U.S.C. § 2213(a) and (b).
45. Defendants have violated WRDA by failing to require the local sponsors
to contribute any of the costs of the Project.
46. Section 103(j) of WRDA provides that flood control projects subject
to WRDA shall be initiated only after non-Federal interests enter into binding
agreements with the Secretary of the Army to pay, in part, the non-Federal
share of the costs of construction required by section 103 of WRDA. 33 U.S.C.
§ 2213(j). The commencement or any water resources project, or separable
element thereof, shall not be commenced until such agreements are obtained.
42 U.S.C. § 1962d-5b(a).
47. Defendants have violated WRDA by failing to require the local sponsors
to enter into a binding agreement with them to pay the required non-Federal
share of the costs of construction of the Project.
48. Defendants' decision to approve the Project despite their noncompliance
with WRDA as alleged above is arbitrary, capricious, an abuse of discretion
and otherwise not in accordance with law.
49. As a result of these violations of WRDA, defendants have approved a
Project which is likely to cause more environmental damage than would have
occurred if WRDA had been complied with. By relieving local sponsors of
their obligation to share project costs, defendants have also relieved local
sponsors of financial incentives to reduce or eliminate unneeded or oversized
aspects of the project. Defendants have thereby increased the likelihood
that the Project will cause more environmental damage than is necessary.
Plaintiff's members are injured by these violations because they use, and
have environmental interests in, the fish, wildlife and other natural resources
that will be affected by the Project.
50. Plaintiff has no other adequate remedy at law to redress its injuries.
Count Two: Violation of WRDA Requirement to Make a
Determination of Negligible Adverse Impacts
51. Plaintiff alleges and incorporates by reference the allegations in paragraphs
1-50 above.
52. Section 906 of WRDA provides that the Secretary of the Army shall not
submit any proposal for the authorization of any water resources project
to the Congress unless such report contains, in part, "a determination
by the Secretary that such project will have negligible adverse impact on
fish and wildlife." 33 U.S.C. § 2283(d).
53. Defendants have violated WRDA because defendants have made no determination
that the Project will have negligible adverse impact on fish and wildlife.
In addition, defendants cannot rationally make such a determination because
they admit that the Project will have more than a negligible adverse impact
on fish and wildlife, including native freshwater mussels.
54. Defendants' decision to approve the Project despite their noncompliance
with WRDA as alleged above is arbitrary, capricious, an abuse of discretion
and otherwise not in accordance with law.
55. As a result of these violations of WRDA, defendants have approved a
Project which is likely to cause more environmental damage than would have
occurred if WRDA had been complied with. If WRDA had been complied with,
non-negligible adverse impacts to fish and wildlife, including native freshwater
mussels, would be prohibited and therefore avoided. Defendants have thereby
increased the likelihood that the Project will cause more environmental
damage than is necessary. Plaintiff's members are injured by these violations
because they use, and have environmental interests in, the fish, wildlife
and other natural resources that will be affected by the Project.
56. Plaintiff has no other adequate remedy at law to redress its injuries.
Third Claim: Violation of NEPA Requirement to Consider Requirements
of Other Federal Environmental Laws and Policies
57. Plaintiff alleges and incorporates by reference the allegations in paragraphs 1-56 above.
58. The National Environmental Policy Act (NEPA) requires Federal agencies
to include in every recommendation or report on major Federal actions significantly
affecting the human environment, a detailed statement on the environmental
impacts of the proposed action. 42 U.S.C. § 4332(2)(C).
59. The Corps' regulations implementing NEPA provide that proposed major
changes in the operation and/or maintenance of completed projects are actions
normally requiring an EIS. 33 C.F.R. § 230.6(c). The Project is a major
change in the maintenance of a completed project and is a major Federal
action significantly affecting the human environment. It is therefore subject
to NEPA requirements for EISs.
60. The Council on Environmental Quality (CEQ) is an entity established
within the Executive Office of the President by Title II of NEPA. 42 U.S.C.
§ 4342. It is charged with the responsibility for ensuring that all
federal agencies implement and comply with NEPA. 42 U.S.C. § 4344.
In furtherance of this responsibility, CEQ publishes regulations that inform
all federal agencies of the procedures for and content of EISs. See 40 C.F.R.
§§ 1500.1-1508.28. The CEQ regulations are mandatory and binding
upon all federal agencies, including defendants in this case. 40 C.F.R.
§ 1500.3.
61. The CEQ regulations provide that each EIS "shall state how . .
. decisions based on it will or will not achieve the requirements of . .
. other environmental laws and policies." 40 C.F.R. § 1502.2(d).
62. Defendants have violated NEPA and 40 C.F.R. § 1502.2(d) by failing
to include in the SEIS any analysis or mention of how the Project will or
will not achieve the requirements of WRDA.
63. Defendants' decision to approve the Project despite their noncompliance
with NEPA as alleged above is arbitrary, capricious, an abuse of discretion
and otherwise not in accordance with law.
64. As a result of these violations of NEPA, defendants have approved a
Project which is likely to cause more environmental damage than would have
occurred if NEPA had been complied with. If NEPA had been complied with,
defendants would have had to analyze their WRDA obligations for cost-sharing
and mitigation. Defendants have thereby increased the likelihood that the
Project will cause more environmental damage than is necessary. Plaintiff's
members are injured by these violations because they use, and have environmental
interests in, the fish, wildlife and other natural resources that will be
affected by the Project.
65. Plaintiff has no other adequate remedy at law to redress its injuries.
Fourth Claim--Violation of NEPA Requirement to Consider All Feasible
Alternatives
66. Plaintiff alleges and incorporates by reference the allegations in paragraphs
1-65 above.
67. The primary purpose of an EIS is to ensure that high quality environmental
information is available to public officials and citizens before decisions
are make and actions are taken. 40 C.F.R. §§ 1501.2, 1502.1.
68. An EIS must include, among other things, a detailed statement concerning
the environmental impact of the proposed federal action, any adverse and
unavoidable environmental effects, any alternatives to the proposed action,
and any irretrievable commitment of resources that would be involved in
the proposed action. 42 U.S.C. § 4332(2)(C).
69. CEQ regulations implementing NEPA state that the agency's consideration
of alternatives forms "the heart of the environmental impact statement."
40 C.F.R. § 1502.14. The EIS must "rigorously explore and objectively
evaluate all reasonable alternatives." Id. The analysis of alternatives
must "present the environmental impacts of the proposal and the alternatives
in comparative form, thus sharply defining the issues and providing a clear
basis for choice among options by the decisionmaker." Id.
70. Congress has required all Federal agencies to give consideration to
nonstructural alternatives to prevent or reduce flood damages, including
acquisition of flood plain lands for recreational, fish and wildlife, and
other public purposes, "with a view toward formulating the most economically,
socially, and environmentally acceptable means of reducing or preventing
flood damages." 33 U.S.C. § 701b-11(a). In the 1996 amendments
to WRDA, Congress "encourage[d] the Corps to improve its efforts at
considering nonstructural alternatives in its project study and formulation"
and "to explore alternatives which may be implemented by others, beyond
the authority of the Corps," such as zoning changes by local officials.
H. Rep. No. 843, 104th Cong., 2d Sess. 146 (1996).
71. Despite these Congressional policies and directives, the SEIS fails
to analyze non-structural alternatives such as flowage easements. The SEIS
dismissed this alternative in less than one page, even though both the U.S.
Fish and Wildlife Service and the U.S. Environmental Protection Agency recommended
its use in this river basin. SEIS, p. 2-1.
72. The reasons given by the Corps in the SEIS for dismissing nonstructural
alternatives are arbitrary, capricious, an abuse of discretion and otherwise
not in accordance with law. First, the SEIS claimed that the cost of flowage
easements "is more than twice as expensive as performing the proposed
maintenance and therefore is not cost-effective." However, this cost
comparison is clearly erroneous, for several reasons.
73. The Corps' used inconsistent time frames to calculate the costs of the
two alternatives. Dredging will have to be repeated every 25 years, because
the river will fill up again with sediment again. SEIS, App. C, p. 3-1.
Easements could be purchased once and would be effective indefinitely. Viewed
correctly, and from the same long-term perspective, flowage easements are
more cost-effective.
74. The Corps' also used inconsistent acreage and flood event frequencies
to calculate the comparative costs. The Corps' dredging valuation assumes
that the Project would protect 56,000 acres a year from floods with no more
than a two-year frequency. SEIS, App. D, Draft SEIS Comments/Responses,
p. 123; id., App. D, June 28, 1994 Status Briefing, pp. 51-53. But the Corps'
easement valuation assumes that easements would have to be purchased to
protect 185,000 acres from floods with a 25-year frequency. SEIS, Draft
SEIS Comments/Responses, p. 2. It is incorrect and misleading to compare
the cost of protecting against two-year floods to the cost of protecting
against 25-year floods. As a result, the Corps arbitrarily understated the
dredging costs and overstated the easement costs.
75. Second, the SEIS stated that flowage easements are not feasible because
the Corps does not currently have the authority to implement such measures
and easements "would also not likely be acceptable to local interests."
However, Congress has specifically required analysis of nonstructural alternatives,
and CEQ regulations expressly require the consideration of reasonable alternatives
even if they are not within the jurisdiction of the agency. 40 C.F.R. §
1502.14(c). In addition, the Corps has acquired flowage easements on 900
acres of land along the Yalobusha River in Mississippi for flood control
purposes, and Congress recently authorized the Corps to acquire flowage
easements for flood control in North Dakota. Pub. L. 104-303, § 336.
76. By failing to analyze nonstructural alternatives adequately in the SEIS,
defendants have violated NEPA and 40 C.F.R. § 1502.14.
77. As a result of these violations of NEPA, defendants have approved a
Project which is likely to cause more environmental damage than would have
occurred if NEPA had been complied with. If NEPA had been complied with,
defendants would have had to analyze fully the alternative of flowage easements,
which avoid the need for environmentally harmful dredging activities. Defendants
have thereby increased the likelihood that the Project will cause more environmental
damage than is necessary. Plaintiff's members are injured by these violations
because they use, and have environmental interests in, the fish, wildlife
and other natural resources that will be affected by the Project.
78. Plaintiff has no other adequate remedy at law to redress its injuries.
Relief
79. Wherefore, plaintiff respectfully requests that this Court grant the
following relief:
A. Enter a declaratory judgment that defendants' decision to approve the
Project is arbitrary, capricious, an abuse of discretion, and otherwise
not in accordance with the requirements of WRDA and NEPA;
B. Issue a temporary restraining order, a preliminary injunction and a permanent
injunction enjoining defendants from initiating any action on the Project
or awarding any construction contracts for the Project, and directing defendants
to terminate and suspend any work on the Project, unless and until defendants
have fully complied with WRDA and NEPA;
C. Award plaintiff its costs, including reasonable attorneys' and expert
witness' fees, as authorized by 28 U.S.C. § 2412(d)(2)(A); and
D. Grant plaintiff such other and further relief as this Court deems appropriate.
Respectfully submitted,
JAMES M. HECKER
D.C. Bar No. 261740
Trial Lawyers for Public Justice
1717 Massachusetts Avenue, N.W.
Suite 800
Washington, D.C. 20036
(202) 797-8600
Counsel for Plaintiff