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Holy Cross Neighborhood Ass'n v. U.S. Army Corps of Engineers

ELR Citation: 41 ELR 20287
Nos. 10-cv-1715, (E.D. La., 09/09/2011) (Fallon, J.)

A district court enjoined the U.S. Army Corps of Engineers from continuing with its Industrial Canal Lock Replacement Project in New Orleans until it complies with NEPA and the CWA. The canal is a manmade waterway that provides access from Lake Pontchartrain and the Gulf Intercoastal Waterway to the Mississippi River. Navigation traffic passes through the canal by way of a lock. The Corps issued its EIS on the building of a replacement lock in 1997, but the court ordered it to prepare a supplemental EIS (SEIS) in 2006. Among other concerns, the court ordered the Corps to address significant new circumstances relevant to environmental concerns that have arisen since Hurricane Katrina. The Corps did not consider shallow-draft alternatives in the SEIS because these alternatives were considered in the original EIS. But following Katrina, the Mississippi River Gulf Outlet (MRGO) was closed to deep-draft traffic. This closure is a "significant new circumstance" for purposes of a SEIS, and by failing to address the impact of this in the SEIS alternatives analysis, the Corps violated NEPA. For many of the same reasons, the Corps' consideration and selection of only deep-draft lock alternatives, without considering that the MRGO is closed to deep-draft traffic, violates the CWA's §404(b) guidelines.