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NATIONAL WILDLIFE FEDERATION v. WESTPHAL

June 27, 2000

NATIONAL WILDLIFE FEDERATION, ET AL., PLAINTIFFS,
V.
DR. JOSEPH WESTPHAL, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sullivan, District Judge.

MEMORANDUM OPINION AND ORDER

The National Wildlife Federation and individual plaintiffs challenge the decision of the Army Corps of Engineers ("Corps") approving the Big Sunflower River Maintenance Project ("the project") in northwestern Mississippi. In Count I, plaintiffs allege that the Corps' decision violates the Water Resources Development Acts ("WRDA)" of 1986 and 1996, 33 U.S.C. § 2201 et seq. because the Corps has failed to require that the Levee Districts, as the local sponsors of the project, share in the cost of the project as required under WRDA. As part of this claim, plaintiffs also allege that the Corps lacks congressional authorization for the project. Count II was dismissed by the plaintiffs with prejudice. In Count III, plaintiffs allege that the Corps violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq. and 40 C.F.R. § 1502.2(d) by failing to include in the Supplemental Environmental Impact Statement (SEIS) any analysis or mention of how the project will or will not achieve the requirements of WRDA. In Count IV, plaintiffs allege that the Corps violated NEPA by failing to analyze non-structural alternatives such as flowage easements in the final SEIS.

For the following reasons, plaintiffs' motion for summary judgment is DENIED and defendants' motion for summary judgment is GRANTED.

I. Background

The Big Sunflower River Project was originally authorized by the Flood Control Act of 1944. See Pub.L. No. 78-534, 58 Stat 895 (hereinafter Flood Control Act of 1944). The Secretary of the Army, through the Corps, has the primary authority for construction and maintenance of federal flood control and navigation projects in the Mississippi River Basin. See 33 U.S.C. § 702, et seq.

The original project was designed to reduce headwater flooding in the Big Sunflower River Basin by improving main streams so as to provide better outlets for the drainage systems. See Flood Control Act of 1944, at ¶ 46. This goal has been accomplished by providing a specified channel capacity in accordance with the Cypress Creek formula. See id., at ¶ 31, Appendix, at ¶ 3; see also Admin.R., Tab 2, at M-3 — M-4; Tab 5, at 5; Tab 6, at 7. Congress anticipated that maintenance would be necessary to maintain the specified channel capacity. See Flood Control Act of 1944, at ¶ 66 (recommending that local interests maintain the improvements after completion). To achieve this level of flood protection, the Flood Control Act of 1944 authorized "83 miles of snagging, 115 miles of clearing and snagging, and 14 miles of channel enlargement." Id. at ¶ 50. The project was subsequently extended by the Flood Control Acts of 1946 and 1950, which authorized improving drainage on 666.6 miles of streams and shortening streams by 20.7 miles through cut-offs and realignments. See Admin.R., Tab 5, at a.

The original authorization recommended that local interests maintain the improvements after construction. See Flood Control Act of 1944, at ¶ 66. The Flood Control Act of 1950, however, modified the maintenance responsibilities of local interests. See Pub.L. No. 81-516, codified at 33 U.S.C. § 702(c); Flood Control Act of 1928, page 2, § 3. The Corps has consistently interpreted this Act to require the local sponsors to be responsible for minor maintenance and for the Corps to be responsible for major maintenance of the project. See Admin.R., Tab 9, Digest of Water Resources Policies and Authorities, EP 1165-2-1, § 10-2c (June 30, 1983). Confirming this understanding, Congress has consistently appropriated Corps-requested funding for maintenance of the project. See Defs.' Ex. in Supp. of its Reply Mem. of P. & A. in Supp. of its Cross-Mot. for Summ.J. & in Opp'n to Pls.' Mot. for Summ.J., Exhibit A (collecting reports and appropriations from 1985-2000).*fn1 As a result, although construction on the project was completed in the 1960's, the project has never been turned over to a local sponsor. Rather, the Corps has continuing authority to maintain the project according to the specified level of flood protection.

Between 1989 and 1991, the Big Sunflower River Basin experienced extensive flooding. In 1989, approximately 450,000 acres flooded. In 1990, approximately 425,000 acres flooded. In 1991, approximately 700,000 acres flooded. As a result of the flooding in 1989-91, local land owners and flood control organizations raised concerns that the existing project was no longer functioning as intended, and requested that the Corps investigate the situation. Surveys and engineering data indicated that the lower reaches of streams in the project area had experienced significant loss of design capacity due to the growth of vegetation and sediment accumulation. In particular, the current capacity was estimated to be one to three feet above the 1962 design flow line, resulting in 185,000 acres losing the congressionally-prescribed level of flood protection. To restore the project to the specified level of flood protection, the Corps proposed the channel maintenance project at issue here.

In compliance with NEPA, the Corps issued the draft SEIS in March 1996 analyzing the project, and issued the final project report and SEIS on the project in June 1996. In the final project report, the Corps proposed performing "channel maintenance . . . on approximately 133.1 miles of streams. This includes the removal of approximately 8.42 million cubic yards (MCYs) of material along 104.8 miles of channel and clearing and snagging on 28.3 miles of channel." Admin.R., Tab 15, at i. The Corps estimated the fully funded cost of the project to be $62,485,000. See id. On March 31, 1997, the Corps issued the Record of Decision ("ROD") on the project. See Admin.R., Tab 18. The ROD provides that the Corps will perform 104.8 miles of channel clean out*fn2 and 28.3 miles of channel clearing in the lower portion of the Sunflower Basin to restore the authorized design carrying capacity. See id. The project is designed to protect against floods with a two- to three-year frequency by reducing flood heights by two to three feet. See Admin.R., Tab 15, at 9. The project life for the proposed maintenance project is 25 years. Thereafter, flood conditions are predicted to return to pre-maintenance levels due to channel aggradation.

Among the alternatives the Corps initially considered was a non-structural option — the purchase of flowage easements. After a preliminary evaluation the Corps dismissed this as an unreasonable alternative on the following grounds:

2.2 Nonstructural Alternative

A nonstructural alternative was evaluated for comparative purposes consisting of acquiring perpetual flowage easements on land currently being impacted by flooding in the Big Sunflower River Basin. The purpose of this approach is to purchase the easement in lieu of maintenance and allow the land to continue to flood.
Hydrology studies revealed flood damages currently occurring up to the 25-year frequency flood event. The damaged acreage was categorized by crop type and flooding frequency. Real estate values were determined on the basis of these data. The more frequent the flooding, the higher the easement cost. Forested acres were not considered for acquisition since flooding impacts are considered relatively minor. A total of 185,000 acres of cleared agricultural land would require acquisition of a perpetual flowage easement at a cost of approximately $121 million, not including real estate acquisition costs, Public Law 91-646 costs, or costs to acquire any improvements that would be damaged by the flooding. This cost is more than twice as expensive as performing the proposed maintenance and therefore is not cost effective.
Under the perpetual flowage easements scenario, over time the channels would continue to aggrade, the flow lines would continue to rise, and more acreage would become subject to flooding. Additional easements would have to be acquired and further costs incurred for lands previously encumbered in light of flooding at one frequency, but successively flooding more often. In addition to the cost being prohibitive, the Corps does not currently have the authority to implement such measures. Although acquisition of perpetual easements would be from willing sellers only, this approach would also not likely be acceptable to local interests. Due to these reasons, this alternative was dropped from further consideration.

Admin.R., Tab 15, at 2-1.

II. Discussion

A. Whether Plaintiffs Have Standing to Bring their WRDA Claim

Plaintiffs contend that the Corps made a legal error when it failed to require the local sponsors to share the costs of the projects based upon the Corps' determination that the WRDA did not apply to the project. Plaintiffs argue that if cost sharing is required, there is a "substantial likelihood" that the project will be dropped, or that it will proceed on a reduced scale. Plaintiffs requested and received limited discovery on the standing issue to try to establish that if the project is not 100% federally funded, the project will not go forward, or will go forward on a reduced scale. Following discovery, plaintiffs indicated that they did not wish to supplement their pleadings.

1. Legal Standard

Standing requirements encompass both constitutional limitations on federal court jurisdiction and prudential limitations on its exercise. See Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (citation and quotation marks omitted). To satisfy the Article III "case or controversy" requirement, a plaintiff must demonstrate: (1) that she has suffered an "injury in fact"; (2) that the injury is "fairly traceable" to the defendant's actions; and (3) that a favorable judicial ruling will "likely" redress the plaintiffs injury. Id.; see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 56061, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

The Supreme Court has recognized prudential requirements for standing, including "that a plaintiffs grievance must arguably fall within the zone of interests protected or regulated by the statutory provision or constitutional guarantee invoked in the suit." Bennett, 117 S.Ct. at 1161; see also ...


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