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EDF, INC. v. CORPS OF ENGRS. OF UNITED STATES ARMY

September 21, 1971

ENVIRONMENTAL DEFENSE FUND, INC., et al., Plaintiffs,
v.
CORPS OF ENGINEERS OF the UNITED STATES ARMY et al., Defendants


John Lewis Smith, Jr., District Judge.


The opinion of the court was delivered by: SMITH, JR.

JOHN LEWIS SMITH, Jr., District Judge.

 This cause having come on for hearing on plaintiffs' Motion for Preliminary Injunction on September 15 and 16, 1971, and upon consideration of the motion, defendants' opposition thereto, evidence adduced at the hearing and arguments of counsel, the Court, in accordance with Rules 52 and 65 of the Federal Rules of Civil Procedure, makes the following findings of fact and conclusions of law:

 FINDINGS OF FACT

 1. Plaintiffs are the Environmental Defense Fund, Inc.; the Committee for Leaving the Environment of America Natural; and John D. Williams, a resident of Mississippi who desires to continue to derive benefits from the Tombigbee River as it exists in its natural state.

 2. Defendants are the Corps of Engineers of the United States Army, an agency of the United States; the Chief of Engineers; and the Secretary of the Army.

 3. The Corps of Engineers of the United States Army is responsible for the design, planning and construction of a public works project known as the Tennessee-Tombigbee Waterway.

 4. The Act of July 24, 1946 entitled "An Act Authorizing the construction, repair, and preservation of certain public works on rivers and harbors, and for Other Purposes," (Rivers and Harbors -- Public Works Act), 60 Stat. 634 (1946), authorized the Corps of Engineers of the United States Army to construct a waterway connecting the north-flowing Tennessee River with the south-flowing Tombigbee River, so as to provide a continuous barge waterway between the upper Mississippi and Ohio valleys and Mobile, Alabama, on the Gulf of Mexico.

 5. The general design of the Tennessee-Tombigbee Waterway project, as authorized by Congress and as revised in Design Memorandum No. 1, General Design, was approved by the Chief of Engineers of the United States Army on April 12, 1962.

 6. The Tennessee-Tombigbee Waterway project, as set forth in Design Memorandum No. 1, General Design, and as presently proposed, extends from Demopolis, Alabama, upstream via the Tombigbee River, the East Fork of the Tombigbee, Mackeys Creek, through a deep cut, 27 miles in length, to be made through the presently-existing natural divide between the Tennessee and Tombigbee systems, into Yellow Creek and via Yellow Creek to mile 215 on the sailing line of the Tennessee River in Pickwick Pool near the common boundary of Alabama, Mississippi, and Tennessee. The overall length of the project from Demopolis to the Tennessee River is 253 miles and the overall difference in elevation is 341 feet, to be overcome by ten locks.

 7. The project will convert the presently free-flowing Upper Tombigbee to a channelized, slack-water system, through impoundments, and will result in approximately 40,000 acres of water surface.

 8. Actual construction of the Tennessee-Tombigbee Waterway has not yet begun. However, defendants are actively preparing to award contracts for the Gainesville lock and approach canal portion of the project, with construction on this initial phase due to begin during October, 1971.

 9. A document entitled "Environmental Statement, Tennessee-Tombigbee Waterway, Alabama and Mississippi Navigation," dated March, 1971, was prepared by the United States Army Engineer District, Mobile, Alabama, and filed with the Council on Environmental Quality on April 20, 1971 and is the final "impact statement" for the project.


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