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Mississippi ex rel. Moore v. Marsh

Citation: 19 ELR 21266
No. No. J88-0421(B), 710 F. Supp. 1488/(S.D. Miss., 03/29/1989)

The court holds that the Army Corps of Engineers' (Corps) decision not to prepare an environmental impact statement (EIS) for a river maintenance project was unreasonable, and that the Corps clearly erred in concluding that the project qualified for a categorical exclusion from EIS preparation. The project was designed to dredge a section of the Yalobusha River in Mississippi and deposit the dredge spoil on 41 acres of wetlands, resulting in reduced seasonal flooding but also reducing the beneficial flooding of areas used by migratory waterfowl and other wildlife. The Corps based its finding of no significant impact (FONSI) on the accompanying environmental assessment (EA), which found that the adverse environmental impacts associated with the project were not subject to mitigation due to their character as operation and maintenance, and were not of the magnitude to warrant preparation of an EIS. The court first notes that although the EA was prepared under Corps regulations in force prior to March 1988, the prospective nature of the injunctive relief sought by plaintiffs requires consideration of how the new categorical exclusion regulations would be applicable to any National Environmental Policy Act (NEPA) review that would commence under a continued injunction of the project's construction. The court then holds that review of the Corps' decision does not fall within the political question doctrine. That Congress authorized the project is immaterial, since an agency's decision to act without preparing an EIS is subject to judicial review. The court holds that the project may, if not will, have a significant impact on the human environment by the reduction in wetlands that will result. The court further holds that the project may cause cumulative impacts to the environment. The court thus holds that the decision not to prepare an EIS was unreasonable. Merely describing the environment of a site does not adequately consider the impacts of a specific project at that site, and the mere existence of a project, and therefore its NEPA documentation, does not serve as prima facie evidence that the impacts of maintenance dredging have been fully evaluated under NEPA. The regulations of the Corps contemplate occasional need of an EIS for maintenance dredging, and in this case there was insufficient analysis of the impacts of this project in past related EISs. The court next holds that no mitigation was included in the project that would reduce its impacts below significance and justify the FONSI. Finally, the court holds that the Corps' characterization of the project as a categorical exclusion was clearly erroneous, since the project is neither a routine operation and maintenance action nor a minor maintenance dredging action. Moreover, the court's finding that the project may have significant impact would alternatively require the Corps to except the project from categorical exclusion.

Counsel for Plaintiffs
Mike Moore, Leslie Scott
Office of the Attorney General
Department of Law, State Capitol, Albany NY 12224
(518) 474-7330

Counsel for Defendants
George L. Phillips, U.S. Attorney
324 U.S.P.O. & Courthouse, 245 E. Capitol St., P.O. Box 2091, Jackson MS
(601) 965-4480