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13 ELR 20003 | Environmental Law Reporter | copyright © 1983 | All rights reserved Bayou St. John Improvement Association v. SandsNo. 81-1358 (E.D. La. May 28, 1981)The court enjoins further implementation of a § 404 permit under the Federal Water Pollution Control Act for a flood protection project until the Corps of Engineers complies with the National Historic Preservation Act (NHPA) and the National Environmental Policy Act (NEPA). The court first rules that plaintiff's action is not barred by laches. While plaintiff delayed in filing suit, the delay was excusable because plaintiff participated in the administrative process and promptly filed suit when the permit was issued. In addition, thee is no prejudice to defendants because construction has not yet begun, the money expended so far on the project is only 2.5 percent of the total, and plaintiff's success on the merits will only delay the project until the Corps complies with the statutes. The court also rules that the Corps violated the NHPA by failing to conduct an historic survey contrary to the recommendations of the State Historic Preservation Officer (SHPO). The Corps' regulations require the Corps to show good cause for issuing a permit without following the SHPO's recommendations. The Corps also violated its NEPA regulations because it failed to prepare an adequate environmental impact assessment (EIA). Another EIA must be prepared, which includes more than an assessment of socioeconomic effects, and the findings of facts must be completed after the EIA. Finally, the court rules that the Corps' decision not to prepare an environmental impact statement (EIS) was unreasonable. The record supports the Corps' conclusion that there would be no adverse impact on water quality and fish habitat, but the Corps did not sufficiently determine the impact of the project on historical and archaeological sites. The court orders the Corps to confer with the SHPO, prepare an EIA, and make a determination whether an EIS is required. [A related decision is reported at 13 ELR 20011 — Ed.] Counsel for Plaintiff Counsel for Defendants Richard . McGinity, General Counsel Counsel for Intervenor Boyle, J.: Plaintiff, Bayou St. John Improvement Association, a fifty year old organization whose members reside, own and/or use property along Bayou St. John (Bayou), filed this suit seeking a Temporary Restraining Order,1 a Preliminary Injunction and a Permanent Injunction to enjoin the building of a levee and an at-grade roadway crossing at the Bayou mouth. The defendants are Colonel Thomas Sands as District Engineer of the United States Army Corps of Engineers (Corps) and The Board of Levee Commissioners of the Orleans Levee District (Levee Board), a board created by state statute to control, maintain, construct and repair all of the levees in Orleans Parish. (LSA-R.S. 38:1231, 1232, 1235 an 1235.1.) After the filing of the complaint the contract for the project was awarded to Boh Brothers Construction Co., Inc. who then intervened in the suit on the side of the defendants. The gravamen of the suit is that the Corps issued a permit allowing the discharge of dredged or fill materials pursuant to Section 404 of the Clean Water Act (33 U.S.C. § 1344) without fully complying with the mandates of the National Environmental [Policy] Act (NEPA), 42 U.S.C. § 4331 et seq., and the National Historic Preservation Act (NHPA), 16 U.S.C. § 470 et seq. The Bayou, a natural stream, is an arm of Lake Pontchartrain (Lake), located on the Lake's south shore in the City of New Orleans. The Bayou extends approximately four miles in length. What is now the mouth of the Bayou is located approximately 800 feet north of its natural mouth and was developed in the 1930's as a result of the Levee Board's reclamation of a portion of the Lake bottom in the area extending from the Orleans-Jefferson Parishes boundary eastward for more than five miles. Land created in this reclamation project has been developed into lakefront residential subdivisions on both sides of the Bayou, as well as park and recreationareas, roadways and bridges. A concrete seawall was erected at the new shore line of the Lake. The existing high rise vehicular bridge spanning the Bayou at Lakeshore Drive, a short distance from the re-made mouth was built in 1936 but has been closed since May 18, 1979 when it was found unsafe for live loads. In the reach of the Bayou from Robert E. Lee Boulevard northward to approximately the Bayou's mouth, flood protection levees on both sides of the Bayou were constructed by the Levee Board and in the early 1970's were upgraded to an elevation of 10 feet. These levees, constructed about 50 years ago, join similar levees running along the lakefront east and west of the Bayou and are part of the main levee system providing flood protection to the City of New Orleans exposed to the tidal action of the Lake. Without the completion of the present project, the levees along the Bayou would have to be raised an additional 4 feet. A low level, at-grade bridge exists at Robert E. Lee Blvd. and has provided the only vehicular crossing of the Bayou in near proximity to the Lake since the lakefront bridge closure in 1979.2 During the 1960's the Levee Board erected a water control structure in the Bayou at Robert E. Lee Blvd. which it still operates and maintains. That structure seals the Bayou at that point, about 2,000 feet from the present mouth, but allows water to flow from the lake side of the structure into the Bayou south of Robert E. Lee Blvd. through a two foot valve which is always kept partially open.3 South of Robert E. Lee Blvd. the Sewerage and Water Board of the City of New Orleans maintains and operates outlets at Florida and Orleans Avenues and at Lafitte Street, the southern terminus of the Bayou. Normally only the Lafitte Street outlet is open. In times of emergency, at the Levee Board's request, the Sewerage and Water Board opens the Florida and/or Orleans Avenues outlets. Additional outlets in City Park provide water for the park lagoons. On January 10, 1979 the Levee Board applied to the Corps for a permit allowing dredging and the placement of fill for a project which consisted of dismantling and removing the present bridge, degrading present levees along the Bayou, building a new levee across the mouth of the Bayou and constructing a roadway at grade connecting the east and west sides of the Bayou. The Levee Board developed the plan in coordination with the Corps because of its relationship to and possible inclusion in the comprehensive hurricane protection plan of the Corps, known as the Lake Pontchartrain & Vicinity Hurricane Protection Plan.4 Accordingly, the instant plan was developed to meet the specifications required by the Corps' Hurricane Protection Plan, as it does. According to the project plans this wouldnecessitate filling the Bayou for a distance of about 372 feet or about 1.6 acres of the Bayou. Water flow through the filled area would be provided by a culvert system consisting of two 36-inch culverts extending 305 feet southward from the lake side of the filled area connecting into three 60-inch culverts 67 feet long opening on the bayou side of the filled area. Interchange of water between the Lake and the Bayou could be cut off during hurricane threats. The approval of the plan to build the levee across the mouth of the Bayou would make the present levees obsolete. Therefore, as part of the overall plan designed by Pepper & Associates for the Levee Board, some of the present levees will be degraded to within a foot of ground level to provide fill for the new levee. The old levees run near some ancient oaks and run through the remains of the historic Spanish Fort. Several of the oak trees are dead and others are dying, and it is believed that removal of the dirt now covering the roots, if done without damaging the root system, will help save those trees. However, no degrading of levees will occur within one hundred feet of the north and south ends of the Spanish Fort site itself located on the west side of the Bayou. Upon receipt of the Levee Board's application, the Corps made an initial determination, subject to review and reversal during the application process, that no environmental impact statement (EIS) was required as it believed there were no significant effects on the human environment which would be caused by the project. Public notice describing the project was given and meetings were held on February 22, March 15 and May 29, 1979. At these meetings significant opposition to the project was voiced, including opposition of plaintiff and its members. At no time during [13 ELR 20005] these public hearings, however, did plaintiff raise the issue of water quality or effect on the fish population of the Bayou as one of its concerns. On May 2, 1980 the permit sought by the Levee Board was granted. Defendants assert that plaintiff should be barred from enjoining the Bayou project on the equitable grounds of laches. Defendants have made two allegations in this regard: (1) that although the permit was issued by the Corps on May 2, 1980, this suit was not filed until April 6, 1981, during which time $85,000 was expended on the project; and (2) that at no time during the application process (beginning with the filing of the application on January 10, 1979), in which plaintiff participated extensively, did plaintiff raise the water quality impact issues asserted in their complaint. Plaintiff replies that any delay on its part in pursuing its rights is excusable and, in any event, defendants have not been prejudiced. In order to prevail on the defense of laches, "[t]he defendant must show: (1) a delay in asserting a right or claim; (2) that the delay was not excusable; and (3) that there was unable prejudice to the party against whom the claim is asserted." Save Our Wetlands, Inc. (SOWL) v. United States Army Corps of Engineers, 549 F.2d 1021, 1026, [7 ELR 20353], cert. denied, 434 U.S. 836, 98 S. Ct. 126, 54 L. Ed. 2d 98 (1977); Environmental Defense Fund v. Alexander, 614 F.2d 474 [10 ELR 20302] (5th Cir. 1980); Ecology Center of La. v. Coleman, 515 F.2d 860 [5 ELR 20488] (5th Cir. 1975). Plaintiff has not contested that there was delay in bringing this suit. Rather, they claim the delay was excusable. In support of this contention Mr. Raymond J. Boudreaux, president of plaintiff, testified as to the actions he took after the permit was granted on May 2, 1980. On February 1, 1981 Mr. Boudreaux wrote to the Corps and inquired as to the status of the project and whether an environmental impact statement (EIS) had been prepared. On February 24, 1981 the Corps responded that the permit had been issued and that they had determined that no EIS was required for the project. Mr. Boudreaux testified this was the first time he was aware the permit had been issued. Unhappy with this response, Boudreaux wrote to Senator Russell B. Long and Congressman Robert L. Livingston, who represents Louisiana's First Congressional District in which the project area is located. As a result of the letter to Congressman Livingston, the Corps sent to Mr. Boudreaux on March 11, 1981 a letter enclosing a copy of the "environmental impact assessment (EIA) of the project"5 and the Corps' Findings of Fact. Mr. Boudreaux wrote back to the Corps on March 22, 1981 stating that he felt the EIA prepared was inadequate and requested that the permit be recalled until an EIS could be done on the project. It is against this background that plaintiff asserts in its pretrial memorandum that "on March 18, 1981 the President of the Levee Board announced that work on the project would begin forthwith. At that point it became clear to plaintiff that the time for public-spirited letter writing had passed and that the filing of a lawsuit was the only way to spare Bayou St. John." Record Doc. 33 at 2. This is not a case, then, where plaintiff ignored the administrative process or waited until after actual construction began to bring the lawsuit. Defendants have not carried their burden of showing inexcusable delay in the filing of this action. To demonstrate the prejudicial impact of plaintiff's delay, the Levee Board introduced testimony that $85,000 has been expended on this project for plans and specifications since the Corps issued the 404 permit. Further, they assert that public interest in improved flood protection will be injured by delay.6 Plaintiff responds that there will be no prejudice as construction on the project has not, or should not have,7 actually begun. Implicit also in their argument is the alleged damage to the public interest in environmental protection and historic preservation. The stage at which a project is interrupted and the amount of money expended on the project in relation to its total cost are both important considerations is determining prejudice.See SOWL, supra, and Ecology Center of Louisiana, Inc., supra. In Ecology Center it was held that where one million dollars had been expended to acquire rights of way there was no prejudice demonstrated as this represented only 1/16 of 1% of the total cost and the rights of way could still be sold or utilized if the project could be completed later. In this case the $85,000 expended represents approximately 2.5% of the total project cost of close to $3.5 million. As in the Ecology Center case, much of that expended would not be lost if the plaintiff's success on the merits merely delays the completion of the project. The strong public interest in flood protection must be balanced against the high value expressed by Congress in NEPA on protecting our environment. Generally, laches is not a favored defense in environmental cases. Coalition for Canyon Preservation v. Bowers, 632 F.2d 774 [11 ELR 20053] (9th Cir. 1980); Minnesota Public Interest Research Group v. Butz, 498 F.2d 1314 [4 ELR 20700] (8th Cir. 1974); City of Rochester v. United States Postal Service, 541 F.2d 967 [6 ELR 20723] (2d Cir. 1976). Thus, while we do not denigrate the importance of flood protection, some delay now, should violation of NEPA's requirements be found, may result in both better flood protection and compliance with the dictates of Congress. We therefore hold plaintiff's action is not barred by laches. National Historic Preservation Act Plaintiff also contends that defendants failed to comply with the requirements of the National Historic Preservation Act (NHPA), 16 U.S.C. 470 et seq. Under this act the head of any Federal department or independent agency having authority to license any undertaking shall, . . . prior to the issuance of any license . . . take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under sections 470i to 470t of this title a reasonable opportunity to comment with regard to such undertaking. In conjunction with the requirements of the act, the Agency Official must consult with the State Historic Preservation Officer (SHPO) who may recommend that a historic survey be done, which recommendation should be followed.8 Such a recommendation was made in this case, but not followed. On March 6, 1979 E. Bernard Carrier, then SHPO, wrote to Charles Decker, Chief of the Regulatory Functions Branch of the Corps, stating that "it appears that the construction may affect cultural resources which may be eligible for inclusion in the National Register of Historic Places." (Exhibit P-1 at page 206, hereinafter cited as "AR .")9 Included in the letter was the following list of possible historic places within the project area: Spanish Fort, a battery located on the east side of Bayou St. John, remains associated with a historic amusement/resort center, an historic lighthouse and a "prehistoric shell midden site recorded for this area." The letter concluded: I recommend that a cultural resources survey be done of the project area in order to obtain this information. I request that the permit be withheld until these issues are resolved. Plaintiff called to testify Joan Koch who is a staff archaeologist for the SHPO. Koch received a Bachelor of Science degree in 1979 and a Masters degree in 1980 in anthropology (with an emphasis in historic archaeology) from Florida State University. Koch recited the same possible historic sites in the project area as were listed in the Carrier letter. Koch testified that when a project is federally licensed it is the duty of the permitting agency to consult with the SHPO concerning cultural resources which might be impacted by that project. Koch has been personally involved in such consultation projects and described the consultation process as follows: the federal agency or its designee writes the SHPO, including with the letter a vicinity map and brief description of the project, and solicits remarks or comments about the project area and the impact on historic resources. Based on recorded sites and documents, the staff reviews the project and comments to the agency. This initial comment can either issue a clearance (i.e., state no significant cultural resources will be impacted) or seek more information, including a cultural resources survey, and reserve the right to comment until that information is received. Following the March 6, 1979 letter to the Corps, a meeting was held at the University of New Orleans on April 12, 1979 to discuss the SHPO's desire to have an archaeological survey done. Present at the meeting were Koch, Bert Rader of the Corps, an unidentified Levee Board representative, Dr. Richard Shenkel (professor of anthropology at UNO) and Richard Beavers (also a professor at UNO). At trial Dr. Shenkel testified that following this meeting he was under the impression that an archaeological survey would be done, but there was disagreement as to the level of search to be done.10 On August 17, 1979 Lawrence G. Bodet of the Levee Board wrote to Decker of the Corps stating "because of meetings with interested parties we decided it would be necessary to have a Class 2 archaeological search in the area of Bayou St. John where the dredge and fill operation would take place." (AR 252-254, emphasis added.) Dr. Shenkel stated that the meeting referred to could be the April 12, 1979 meeting and that the quoted portion coincides with his recollection that an underwater search of the project area was to be done. Koch testified that at the April 12, 1979 meeting she restated the SHPO's position concerning the need for an archaeological survey and stated her concern that the Bayou itself be surveyed for shipwrecks and artifacts that may have been thrown from the ships. Koch also testified that she, as representative of the SHPO, stated at the meeting that a survey would not be requested for the land where the bridge approaches have been built which was reclaimed in the 1930s. However, she stated that until the time of trial she was not aware of the fact that the Levee Board had decided not to do the archaeological survey [13 ELR 20007] and that pending receipt of the results of such a survey the SHPO had not officially commented on the project. Bodet testified that at the April 12 meeting the Levee Board only agreed to consider doing an archaeological search and that the Levee Board at this point does not intend to do the survey referred to in the August 17, 1979 letter. He further stated the Levee Board decided a search would be premature before the permit was issued and after the permit was issued the Levee Board decided not to do the search as it was being requested for an area reclaimed in the 1930s. It is not explained why at the April 12 meeting, when the Levee Board was in possession of the knowledge that the survey was being requested at the same area reclaimed in 1930, the Levee Board, rather than agreeing to consider having the search done (and apparently concluding it should be done as its aforesaid letter of August 17, 1979 to Decker indicates), did not decline to undertake the survey. Decker testified that he did not recall when he became aware of the decision of the Levee Board not to do the survey. However, the socioeconomic assessment transmitted to Decker's department on September 21, 1979 states, "The Levee Board plans to prepare a class 2 archaeological survey of the area if a permit is issued." Decker admitted that this statement in the socioeconomic assessment was taken into consideration by those who prepared the findings of fact signedby Colonel Sands on April 23, 1979 and was available in the record for Col. Sands' review. Although nothing in the record indicates that an archaeological survey would not be done prior to the beginning of this project, such knowledge would not have affected the Corps' decision, Decker testified, as they had concluded that the work would not disturb archaeological ruins as the new levee was to be built on reclaimed land and the old levees were only to be degraded to within one foot of the original ground level. The Corps' Findings of Fact reflect this conclusion: The Louisiana State Historic Preservation Officer . . . recommended that a cultural resources survey be done of the project area and requested that the permit application be withheld until these issues are resolved. The alinement proposed by the applicant leaves the historic site completely outside the permit area. The existing levees along the westbank of the Bayou St. John from Lakeshore Drive to Robert E. Lee, will be degraded and save the old oak trees from deteriorating and leave the Old Spanish Fort undisturbed. (AR 9,11.) Decker testified that he himself had told the SHPO of the Corps' conclusions. He further testified that the Corps' duty under its regulations is to merely consider the comments of the SHPO and then to decide what action is to be taken. The regulations adopted pursuant to the NHPA state a recommendation of the SHPO that a cultural or historic survey be done "should be followed." 36 CFR 800.4(a)(1) and (2). Although "should" is not mandatory, we think this strong wording of the regulation indicates good cause must be shown for not complying with the SHPO's request. Decker testified that the Corps acted upon the belief that the fort area was "eligible for the National Register" throughout the application process. The Corps disagreed with the SHPO11 that an archaeological survey was necessary because: (1) the purpose of the survey was to determine if there were cultural resources in the area and the Corps already knew what resources were there; (2) the work to be done in degrading the levees would be done with such care as to not disturb the cultural resources present; (3) the levees were to be degraded only to within a foot of natural ground elevation and in the fort itself would be left untouched; and (4) in the permit area itself, located on reclaimed land, no possible cultural resource sites would be distrubed. We consider the evidence on these points seriatim. (1) Although Decker testified that the purpose of the survey was to simply determine where the cultural resources are located, Dr. Shenkel's testimony contradicts that. The survey recommended by the SHPO, and evidently agreed upon at the April 12, 1979 meeting, was a Level II search which not only locates cultural resources, but couples with that an in-depth study of the resources. Further, Decker's testimony that the Corps knows the location of the archaeological sites in the area from past experience and helping with the preparation of the nomination of Fort St. John for inclusion on the National Register is contradicted by the testimony of Dr. Shenkel who actually conducted a test excavation of the area in 1976. Exhibit G-17 at p. 2. Dr. Shenkel testified that the archaeological value of the Bayou is not limited to the Fort site. He stated he himself did not know the measure of the area that would need to be searched, that due to subsidence in the area that one of the old forts could well be two hundred feet out into the lake, and that is precisely why a survey should be done. (2) Although the work to be done in degrading the present levees is to be done carefully, it still involves the use of some heavy equipment if the fill is to be loaded and moved for use in building the levee. Dr. Shenkel, Koch and Sam Wilson testified that driving heavy equipment over this area may destroy archaeological remains which have survived previous work and fill coverage in the area.12 (3) Although the degrading of the levees is to occur only within a foot of the surface, the remains could be damaged by the use of heavy equipment, as already noted. Further, not all of the area of historical and archaeological interest is located in the Fort area as we note below. (4) The Corps' unilateral conclusion that no sites upon which a survey should be done exists in the immediate permit area is in contradiction to Koch's concern that archaeological finds might lie on the Bayou bed where the fill is to be placed and the apparent conclusion of the Levee Board after the April 12 meeting that a Level II search should be done in the Bayou "where the dredge and fill operation would take place." (AR 252-254.) We conclude from these facts that the Corps of Engineers did not meet its burden in showing good cause for its decision not to follow the SHPO's recommendation that an archaeological survey of the area should be done. It would totally thwart the purposes of Congress in enacting the NHPA to allow agencies to "consult" with the SHPO by merely soliciting comments and then ignoring them without good cause. We therefore hold that this project should be enjoined until such time as the required consultation with the SHPO is completed.13 National Environmental [Policy] Act The plaintiff's allegations as to the defendants' failure to comply with the requirements of the National Environmental [Policy] Act (NEPA), 42 U.S.C. § 4331, can be summarized as follows: (1) that the Corps' actions were procedurally deficient in that, upon receipt of the application, it did not prepare a proper EIA as required by Corps regulations, and that (2) the decision that an EIS was not required for this project was unreasonable, i.e., that the Corps could not reasonably conclude that the project is not "a major Federal [action] significantly affecting the quality of the human environment" within the meaning of 42 U.S.C. § 4332(2)(c). Defendants, while they concede that this is a "major federal action,"14 reply that the record contains an EIA prepared in compliance with the Corps regulations and that there is a reasonable basis for the District Engineer's conclusion that an EIS was not required because this project would not significant affect the quality of the human environment. 1. Did the Corps Prepare a Proper Environmental Assessment? Upon receiving a permit application, the Corps must prepare [13 ELR 20008] an EIA to determine whether an EIS is required.15 In Making that environmental assessment the Corps must consider "all advice received from Federal, State, and local agencies, and comments from the public." 33 CFR 209.410(e)(7)(i).16 Mr. Decker testified that the term "environmental assessment" is a generic term and does not require a specific document entitled such,17 and that sometimes the Corps does not prepare a specific EIA document. All that is required of the Corps, he stated, was that they address the probable impacts of the project. He further testified that in the Corps' opinion the required EIA can be found in the administrative record in three parts: (1) the Preliminary Environmental Assessment (PEA) (AR 163-164); (2) THE Socioeconomic Assessment (AR 77-92); and the Findings of Fact dated April 23, 1980 (AR 7-14). Plaintiff contends that the only document that the Corps intended to be an EIA is the Socioeconomic Assessment. In support of its position plaintiff cited the statement contained in the Findings of Fact of April 23, 1980 that the possible consequences of this proposed work have been studied for environmental effects, social well-being, the public interests, and in accordance with regulations published in 33 CFR 320 through 329, and when applicable, the guidelines published in 40 CFR 230.1. Since this is worded in the past tense, plaintiff asserts that the completion of the EIA occurred before the Findings of Fact were written and therefore the latter cannot be considered as part of the EIA in determining its sufficiency. Furthermore, plaintiff contends that the Findings of Fact are a separate document required by 33 CFR 325.2(a)(6), the completion of which must follow the completion of the EIA.18 Finally, plaintiff introduced a March 11, 1981 letter written by Decker to plaintiff's president, Raymond J. Boudreaux, which states: Congressman Robert L. Livingston has requested that we forward you a copy of the environmental impact assessment, EIA, of the project. As per his request, attached is the EIA and a copy of our findings of fact. (Exhibit P-12; emphasis added.) With this letter was enclosed a copy of the Socioeconomic Assessment and the findings of fact. Thus, plaintiff contends, the Corps itself equated the Socioeconomic Assessment to the environmental assessment and did not refer to the findings of fact as part of that assessment. The Corps responds to this argument in three ways: First of all, as previously noted, it contends that the regulations do not contemplate a separate document entitled EIA. Second, Decker testified the Socioeconomic Assessment was equated to an EIA in the May 11, 1981 letter in order to use the writer's terminology to describe what was being enclosed.Third, as Exhibit G-24, the memo requesting that the Socioeconomic Assessment be prepared, states that it is to be used as the Socioeconomic Assessment impact portion of the environmental-socioeconomic assessment, it is clear that the Corps did not equate the socioeconomic statement with the EIA. We agree with plaintiff that 33 CFR 325.2(a)(4) contemplates that an EIA document separate and distinct from the findings of fact must be prepared. An "Environmental Assessment" is defined by the Council on Environmental Quality as "a concise public document for which the Federal agency is responsible. . . ." 40 CFR 1508.9. Furthermore, besides the fact that the regulations require the EIA be completed before the findings of fact are prepared (33 CFR 325.2(a)(6)), as pointed out above the two documents have similar requirements; both must be prepared by the District Engineer, dated, signed and put in the record. Mr. Decker testified that the findings of fact constitute a document which must be filed in the administrative record. As the regulations require both documents to be signed and dated and placed in the administrative record, Decker's rationalization of the failure of the record to include a separate EIA document on the basis that EIA is a generic term cannot be credited. In addition, the Corps' explanation that its equation of the EIA with the Socioeconomic Assessment in its letter to Mr. Boudreaux was simply an attempt to use consistent terminology with the request is implausible. The letter to Mr. Boudreaux states that Congressman Livingston requested the EIA be sent to Boudreaux, yet the Corps states it is enclosing the EIA and the findings of fact. If the Corps wanted to use consistent terminology and indeed believed that the findings of fact were part of the EIA, it simply would have enclosed both documents and referred to them as the EIA.19 Finally, we believe that exhibit G-24, which requests a socioeconomic statement be prepared to be used as a portion of the EIA, clearly indicates something more than the Socioeconomic Assessment was anticipated to complete the EIA. It does not show that the Corps believed it could use the findings of fact coupled with the Socioeconomic Assessment to comprise the EIA. We therefore hold that the Corps did not comply with their own regulations requiring that an Environmental Assessment of this project be prepared. 2. Was the Corps' Decision Not to Prepare an EIS Reasonable? An agency's decision not to prepare an EIS is reviewed under a reasonableness standard. Sierra Club v. Hassell, No. 80-7565, slip op. at 3647 [11 ELR 20227] (5th Cir. 1981); Save the Bay, Inc. v. U.S. Corps of Engineers, 610 F.2d 322, 325 [10 ELR 20185] (5th Cir. 1980); Save Our Ten Acres (SOTA) v. Kreger, 427 F.2d 463, 465 [3 ELR 20041] (5th Cir. 1973). The scope of our inquiry, however, need not be limited to consideration of the administrative record. As stated in SOTA, Since SOTA has raised substantial environmental issues concerning the proposed recommended project here, the court should proceed to examine and weigh the evidence of both the plaintiff and the agency to determine whether the agency reasonably concluded that the particular project would have no effects which would significantly degrade our environmental quality. This inquiry must not necessarily be limited to consideration of the administrative record, but supplemental affidavits, depositions and other proof concerning the environmental impact of the project may be [13 ELR 20009] considered if an inadequate evidentiary development before the agency can be shown. See Citizens to Preserve Overton Park, Inc. v. Volpe, 335 F. Supp. 873, 876-877 [2 ELR 20061] (W.D. Tenn. 1972) (on remand). If the court concludesthat no environmental factor would be significantly degraded by the project, GSA's determination not to file the impact statement should be upheld. On the other hand, if the court finds that the project may cause a significant degradation of some human environmental factors (even though other environmental factors are affected beneficially or not at all), the court should require the filing of an impact statement or grant SOTA such other equitable relief as it deems appropriate. 472 F.2d at 467.20 See also Hassell at 3647. NEPA requires that environmental review of a project include consideration of the "historic, cultural, and natural aspects of our national heritage" (42 U.S.C. § 4331(b)(4)). However, the obligations for compliance placed on the agency are separate from those required under the NHPA.21 We must, therefore, consider whether historic factors were sufficiently dealt with in the Corps' decision not to prepare an EIS independently of our prior consideration of its compliance with the dictates of the NHPA. Concerning the Corps' decision not to file an EIS, the evidence discloses that on January 11, 1979, the day following the Corps' receipt of the application for the Section 404 permit, a PEA was prepared. The PEA (AR 163-164) was signed by Roger Swindler, a civil engineer who heads the Permit Section, one of three sections in the Regulatory Functions Branch of the Operations Division.22 The PEA contains a check list where the impact of various environmental and social factors are rated as being "negligible, undetermined, beneficial or adverse." Impacts judged to be either beneficial or adverse are further determined to be of "major or minor" benefit or adverse impact. On the PEA Swindler rated water quality impact, the impact on existing vegetation, on historic sites and archaeological sites as "undetermined," and the impact on aquatic habital and biological productivity as being "minor-adverse."23 On the same day, Dr. Lloyd Baehr, a Ph.D. in environmental sciences who heads the Regulatory Assessment Section of the Regulatory Functions Division, reviewed the PEA and concluded that "impacts are not of enough significance to require preparation of detailed assessment or impact statement." AR 164. Although this was done by merely checking a box on the form, Decker, Chief of the Regulatory Functions Branch, testified that this form was prepared from information contained in the application, drawings, information the office had and the knowledge of its own personnel, and was finally reviewed and approved by himself and his supervisor, C. J. Nettles. Nettles issued Findings of Fact dated January 16, 1979 which affirmed that preliminary determination that an EIS would not be required for this project. (Exhibit G-6.) The purpose of Nettles' Findings of Fact, Decker testified, was to document the decision that no EIS is needed. Decker further testified that the Corps and the Levee Board had conferred prior to the submission of the Levee Board's application, as is often done, to work out problems prior to submission. He further testified that the decision reached in the PEA was not final, and could be changed if subsequent investigation or comments warranted it. Following the issuance of the PEA the Corps received letters from the Stream Control Commission of the State of Louisiana, the National Marine Fisheries Service and the Louisiana Department of Wildlife and Fisheries,24 all of which expressed their opinion that environmental impact would be minimal. The Corps was also informed by the U.S. Department of the Interior's Fish and Wildlife Service25 that it had insufficient manpower to review the project and that it took no position thereon. The Corps also notified the Center for Wetland Resources at Louisiana State University in Baton Rouge to solicit its comments, but received none. Although the hearing notices issued by the Corps raised the water quality issue, no one, as noted earlier, presented evidence at these hearings or anytime before the permit was issued that a significant adverse environmental impact on the lake or bayou would occur should this project be completed. On August 22, 1979, Mr. Nettles, as Chief of the Operations Division, requested that the planning division prepare a socioeconomic impact statement to be included in the environmental socioeconomic assessment for the project. (AR 278). That assessment (AR 77-92) was sent to Operations Division on September 21, 1979 signed by "Roy" who is head of the Planning Division.26 Mr. Decker testified that the Socioeconomic Assessment was prepared by Robert Lacey whose name and initials appear on the return memo. Mr. Decker testified the Planning Division was asked to prepare this document as that division had economic expertise, while his division does not. His division, he stated, does have internal expertise in environmental matters. The Socioeconomic Assessment described the project and reviewed the comments received other than those concerning the natural environment, chiefly dealing with social, historical and archaeological impacts of the project. The assessment states under its "historic and archaeological values" section: Archeological surveys have been recommended before engineering excavation takes place . . . The Levee Board plans to prepare a Class 2 archeological survey of the area if the permit is issued. One of the conclusions reached from this review of the project is, "The plan could have adverse impacts on . . . historic and archeological values." In the Findings of Fact, issued on April 23, 1980 and signed by Col. Thomas A. Sands, District Engineer, the Corps ratified its decision not to prepare an EIS as the "impacts of the project are not of enough significance." In that document (AR 7-14) the few comments received in response to the Corps' solicitation of comments on water quality and aquatic life were set out. The document notes that the SHPO has recommended a cultural resources survey and asked the permit be withheld pending completion, but continues, "The alinement proposed by the applicant leaves the historic site completely outside the permit area.'27 However, the document also states: The area is noted as being an important site both historically and archeologically. Any work along the banks to modify [13 ELR 20010] the existing levee would have adverse impacts on the area. The existing levees along the westbank of Bayou St. John from Lakeshore Drive to Robert E. Lee, will be degraded and save the old oak trees . . . and leave the Old Spanish Fort undisturbed. From these statements the District Engineer concludes Construction of the closure levee will permit abandonment of the interior levees which are causing problems with existing oak tree [sic] along the bayou and leave the Old Spanish Fort undisturbed. At trial to refute the reasonableness of the Corps' determination of no significant impact on the fish life and water quality of the Bayou, plaintiff presented the testimony of Dr. Bruce Thompson, Eric Swenson and Dr. Paul Wagner. Dr. Thompson, an ichthyologist or fish ecologist, works for the Center for Wetland Resources at Louisiana State University.28 Dr. Wagner is the head of the environmental division of Burk & Associates, a New Orleans consulting firm. Reduced to its basics, the testimony of Drs. Thompson and Wagner was that further reductions in the grassbeds of the lake area might seriously impact on the fish population. They further testified that the Bayou contained the only significant grassbeds remaining on the south shore of the lake29 and that there is a problem with the slow eroding of grassbeds throughout the lake. Both witnesses expressed fear that the culvert system would ruin the function of the grassbeds at Bayou St. John as a spawning and nursery grounds for various species because (1) the fish would not go through the culverts and (2) there would not be sufficient water exchange between the lake and the Bayou to maintain the Bayou in its present state either because of siltation or insufficient size of the culverts being installed. Dr. Thompson admitted on cross-examination, however, that even if his "worst fears" about the project were realized he could not say what effect the loss of the grassbeds, if that occurred, would have on the eco-system of the lake. Likewise, Dr. Wagner testified that he felt the loss of the Bayou grassbeds would be significant in impact, but impossible to quantify. Eric Swenson, a hydrologist at the L.S.U. Coastal Ecology Lab, testified that water flowing through the culverts would lose speed and that the project might cause problems with the water level on each side of the new levee. However, he testified further that proper water flow volume could be calculated by a civil engineer using proper formulas and he had no quarrel with the Corps engineers' findings that the culverts were sufficient to provide equivalent flow to the open Bayou as long as the Corps used the correct fomulas properly. There was no evidence that the Corps did not do so. Furthermore, the testimony of Mr. Pepper of the engineering firm which prepared the project plans and specifications and of Mr. Bodet, Chief Engineer of the Levee Board, confirms the sufficiency of the culvert system to provide adequate water interchange between the Lake and the Bayou. The Corps presented the testimony of Dr. Smalley, a professor of biology at Tulane University. Dr. Smalley was qualified as an expert in estuarine ecology. Dr. Smalley agreed with Dr. Thompson that the Bayou provides a spawning and nursery ground for many of the lake's fish species. Dr. Smalley's major disagreement with Dr. Thompson was whether the fish which migrate in and out of the Bayou would freely migrate through the culverts. Dr. Thompson testified that many species are "visual" and would not go through a culvert system as long as the one proposed. Further, he felt that the location of the openings in the vertical water column might inhibit the migration of some species. Dr. Smalley felt that the fish would migrate freely as their migratory instinct compelling them to seek higher saline waters, a mechanism which he testified no one understands, would overcome any arriers that were presented by the project. Both Drs. Thompson and Smalley agreed, however, that the available studies on this point were limited. To refute the reasonableness of the Corps' findings that there would be no significant impact on historical and archaeological values, plaintiff offered the testimony of Joan Koch and Dr. Shenkel, which we have previously set out, and that of Margaret Schiro and Sam Wilson, both of whom have done extensive historical research on the Bayou St. John area and testified as to its significance in the development of the City of New Orleans. The Corps' conclusion that there would be no adverse impact on the water quality and fish life elements of the environment is fully supported by the evidence. There has not been a sufficient showing that the grassbeds in the Bayou will be adversely affected or, if they, were, that such adverse effect would significantly affect the eco-system of the Lake. However, the Corps has not sufficiently examined the impact of this project on historical and archaeological elements of the environment. In the PEA the Corps concluded the impact on historic and archaeological sites was undermined. In the Socioeconomic Assessment the Corps determined the impact on these resources would be adverse and noted their belief that a Class 2 survey would be done on the area as a result of the SHPO's request. As noted previously, the fact that a Class 2 study would be done was considered by those who prepared the findings of fact. There is nothing in the findings of fact to explain the Corps' total reversal of its position that there would be adverse impacts from the project on historic and archaeological resouces. As pointed out earlier, the statement that the "alinement proposed by the applicant leaves the historic site completely outside the permit area" does not take into account nor refute the need for the survey requested by the SHPO of the Bayou bottom to be filled in as a result of the project.Furthermore, the Corps did not explain why "modifying" (which we take to mean broadening the base and increasing height) the levees on the west side of the Bayou would have an adverse impact on the area while "degrading" the levees will not since apparently both would require use of heavy equipment around the levee area. At no point in the findings of fact does the District Engineer even acknowledge the Corps' previous determination that this project would have adverse effects on the historical and archaeological elements of the environment. We therefore hold that the Corps' decision not to prepare an EIS, on the present record, was unreasonable. Plaintiff asserts that the Levee Board is without jurisdiction to apply for the Section 404 permit as the Louisiana legislature granted exclusive jurisdiction over that area to the New Orleans City Park Improvement Association (CPIA) in Act 104 of the 1934 session or alternatively that the Levee Board would need CPIA concurrence to obtain the permit. The Levee Board replies that the 1934 act specifically excludes Levee Board authority from the grant of power to the CPIA and that it also has authority to do the work envisioned by the project under LSA-R.S. 38:1235.1. In the CPIA's letter to the Corps dated June 5, 1979 (AR 716) it set forth four suggestions or conditions for improvement of the project, three of which have been met by the Levee Board. The fourth — "that any material dredged from the bed or banks of Bayou St. John be deposited within City Park . . ." — has not. Such material is not yet available because dredging and degrading of levees has not yet commenced. While possible that this condition could still be met, the project plans call for other uses for such material. In no event should this issue impede the proper issuance of a404 permit. The aforesaid letter also advised the Corps prior to issuance of the permit that the CPIA neither approved nor disapproved the project. The letter also claimed the right to approve any revised plan. Decker testified that a Corps permit does not grant property rights to the permittee and that the Corps would only become involved in an ownership dispute if it received formal opposition to the project from the entity asserting adverse rights to the permittee. Thus, we feel that no rights of the CPIA have been violated by the granting of this permit and that the CPIA, if it feels it necessary, [13 ELR 20011] may assert those rights at the proper time in a proper forum. We conclude that the Corps (1) violated the terms of the NHPA in that it did not fulfill its obligation to confer with the SHPO; (2) violated its own procedural regulations requiring the preparation of an EIA: and (3) was unreasonable in its decision based on the present record that an EIS is not required for the project. We further conclude that the Corps should have the opportunity to remedy such defects. We make no finding that an EIS is necessary for this project, but only that on the record made by the Corps, the decision not to make an EIS was unreasonable. After the Corps complies with its legal obligations to confer with the SHPO and prepares an EIA, it could determine that an EIS is not necessary for this project provided that its decision is appropriately supported by the record. IT IS ORDERED that the defendants, Colonel Thomas A. Sands, in his official capacity as District Engineer, New Orleans District, United States Army Corps of Engineers, and the Board of Levee Commissioners on the Orleans Levee District and intervenor-defendant Boh Brothers Construction Co., Inc., be, and they are hereby, ENJOINED from further implementation of the Proposed New Vehicular Crossing and Realignment of Flood Protection in the vicinity of Lakeshore Drive and Bayou St. John in the City of New Orleans under the United States Corps of Engineers, New Orleans District, Section 404 Permit relating thereto dated May 2, 1980 until such time as this court shal have been satisfied that such defendants have complied in full with Title 42 United States Code, Section 4332, and Title 16, United States Code, Section 470, et seq., and the regulations enacted pursuant thereto. IT IS FURTHER ORDERED that the court retains jurisdiction to render sua sponte or on motion of any party such further orders, including modifying the aforesaid injunction, as may be appropriate. 1. A Temporary Restraining Order was entered in this case by Judge Fred J. Cassibry on April 22, 1981 following what he considered a violation of an agreement he had with counsel for The Corps and the Levee Board that no work on the project would commence until after the court could hear the motion for a Preliminary Injunction. Record Doc. 7. Thereafter, Judge Cassibry recused himself and the case was reallotted to us. Defendants filed motions seeking to have us alter the terms of the Temporary Restraining Order to allow completion of the project to a point which would protect the work done on the project after this suit was filed. Those motions were withdrawn during oral argument and by agreement the Temporary Restraining Order was extended until we could hear the matter. Pursuant to FRCP 65(a)(2) we ordered hearing on the Preliminary Injunction consolidated with trial on the merits. 2. There are seven other vehicular crossings approximately at-grade south of Robert E. Lee. A railroad bridge and Interstate 610's highway bridge complete the Bayou crossings. 3. Two five foot valves, also contained in the structure, are kept closed. 4. The Lake Pontchartrain & Vicinity Hurricane Protection Plan, in addition to levee and other protective measures, calls for the erection of barrier structures at Chef Menteur Pass and the Rigolets. That portion of the comprehensive project was enjoined in Civil Action No. 75-3710 by Judge Charles Schwartz, Jr. of this court pending the completion of an adequate Environmental Impact Statement on the project. 5. Actually enclosed were the findings of fact and a document entitled "Socioeconomic Assessment." 6. Boh Brothers claimed prejudice because of the $7,000 to $10,000 expended by each of the contractors in bidding on the project "in the expectation that one of them would" be awarded the contract. Record Doc. 34 at p. 2. No evidence was offered in support of that claim. Moreover, we cannot conceive that the unsuccessful bidders would expect to recover the cost of preparing their bids which is a routine business expense. Furthermore, plaintiff asserts no rights or claims against Boh Brothers, an intervenor in this suit. Prejudice to Boh is thus not "prejudice to the party against whom the claim is asserted." SOWL, 549 F.2d at 1026. 7. See Footnote 1. 8. Set out below are the pertinent regulations from 36 CFR regarding the consultation process between the SHPO and the Agency Official. We call particular attention to 36 CFR 800.4(a)(1) and (2). § 800.4 Federal Agency responsibilities. As early as possible before an agency makes a final decision concerning an undertaking and in any event prior to taking any action that would foreclose alternatives of the Council's ability to comment, the Agency Official shall take the following steps to comply with requirements of Section 106 of the National Historic Preservation Act and Section 2(b) of Executive Order 11593. It is the primary responsibility of each Agency Official requesting Council comments to conduct the appropriate studies and to provide the information necessary for an adequate review of the effect a proposed undertaking may have on a National Register or eligible property, as well as the information necessary for adequate consideration of modifications or alterations to the proposed undertaking that could avoid, mitigate, or minimize any adverse effects. It is the responsibility of each Agency Official requesting consultation with a State Historic Preservation Officer under this section to provide the information that is necessary to make an informed and reasonable evaluation of whether a property meets National Register criteria and to determine the effect of a proposed undertaking on a National Register or eligible property. Although a Federal agency may require non-Federal parties to undertake certain steps required by these regulations as a prerequisite to Federal action and may authorize non-Federal participation under this section and in the consultation process under § 800.6 pursuant to approved counterpart regulations, the ultimate responsibility for compliance with these regulations remains with the Federal agency and cannot be delegated by it. (a) Identification of National Register and Eligible Properties. It is the responsibility of each Federal agency to identify or cause to be identified any National Register or eligible property that is located within the area of the undertaking's potential environmental impact and that may be affected by the undertaking. (1) The Agency Official shall consult the State Historic Preservation Officer, the published lists of National Register and eligible properties, public records, and other individuals or organizations with historical and cultural expertise, as appropriate, to determine what historic and cultural properties are known to be within the area of the undertaking's potential environmental impact. The State Historic Preservation Officer should provide the Agency Official with any information available on known historic and cultural properties identified in the area (whether on the National Register or not), information on any previous surveys performed and an evaluation of their quality, a recommendation as to the need for a survey of historic and cultural properties, and recommendations as to the type of survey and/or survey methods should a survey be recommended, and recommendations on boundaries of such surveys. (2) The Agency Official shall, after due consideration of the information obtained pursuant to § 800.4(a)(1), determine what further actions are necessary to discharge the agency's affirmative responsibilities to locate and identify eligible properties that are within the area of the undertaking's potential environmental impact and that may be affected by the undertaking. Such actions may include a professional cultural resource survey of the environmental impact area, or parts of the area, if the area has not previously been adequately surveyed. The recommendations of the State Historic Preservation Officer should be followed in this matter (3) The Agency Official, in consultation with the State Historic Preservation Officer, shall apply the National Register criteria to all properties that may possess any historical, architectural, archeological, or cultural value located within the area of the undertaking's potential environmental impact. If either the Agency Official or the State Historic Preservation Officer finds that a property meets the National Register Criteria or a question exists as to whether a property meets the Criteria, the Agency Official shall request a determination of eligibility from the Secretary of the Interior in accordance with 36 CFR Part 63. The opinion of the Secretary respecting the eligibility of a property shall be conclusive for the purposes of these regulations. If the Agency Official and the State Historic Preservation Officer agree that no identified property meets the Criteria, the Agency Official shall document this finding and, unless the Secretary has otherwise made a determination of eligibility under 36 CFR Part 63, may proceed with the undertaking. (4) The Agency Official shall complete the preceding steps prior to requesting the Council's comments pursuant to § 800.4(b)-(d). The Agency Official may, however, initiate a request for the Council's comments simultaneously with a request for a determination of eligibility from the Secretary when the Agency Official and the State Historic Preservation Officer agree that a property meets the National Register Criteria. Before the Council completes action pursuant to $800.6, the Secretary must find the property eligible for inclusion in the National Register. (b) Determination of Effect. For each National Register or eligible property that is located within the area of the undertaking's potential environmental impact, the Agency Official, in consultation with the State Historic Preservation Officer, shall apply the Criteria of Effect, (§ 800.3(a)), to determine whether the undertaking will have an effect upon the historical, architectural, archeological, or cultural characteristics of the property that qualified it to meet National Register Criteria. (1) No Effect. If the Agency Official, in consultation with the State Historic Preservation Officer, finds that the undertaking will not affect these characteristics, the undertaking may proceed. The Agency Official shall document each Determination of No Effect, which shall be available for public inspection. If the State Historic Preservation Officer objects or other timely objection is made to the Executive Director to an Agency Official's Determination of No Effect, the Executive Director may review the Determination and advise the Agency Official, the State Historic Preservation Officer and any objecting party of the findings within 15 days. (2) Effect determined. If the Agency Official or the Executive Director finds that the undertaking will have an effect upon these characteristics, the Agency Official, in consultation with the State Historic Preservation Officer, shall apply the Criteria of Adverse Effect, set forth in § 800.3(b), to determine whether the effect of the undertaking may be adverse. (c) Determinations of no adverse effect. If the Agency Official, in consultation with the State Historic Preservation Officer, finds the effect on the historical, architectural, archeological, or cultural characteristics of the property not to be adverse, the Agency Official shall forward adequate documentation (See § 800.13(a)) of the Determination, including written evidence of the views of the State Historic Preservation Officer, to the Executive Director for review in accordance with § 800.6. If the State Historic Preservation Officer fails to respond to an Agency Official's request as provided in § 800.5, the Agency Official shall include evidence of having contacted the State Historic Preservation Officer. (d) Adverse effect determination. If the Agency Official finds the effect on the historical, architectural, archeological, or cultural characteristics of the property to be adverse, or if the Executive Director does not accept an Agency Official's Determination of No Adverse Effect pursuant to review under § 800.6, the Agency Official shall: (1) Prepare and submit a Preliminary Case Report requesting the comments of the Council (see § 800.13(b), (2) Notify the State Historic Preservation Officer of this request, and (3) Proceed with the consultation process set forth in § 800.6. (e) Suspense of action. Until the Council issues its comments under these regulations, good faith consultation shall preclude a Federal agency from taking or sanctioning any action or making any irreversible or irretrievable commitment that could result in an adverse effect on a National Register or eligible property or that would foreclose the consideration of modifications or alternatives to the proposed undertaking that could avoid, mitigate, or minimize such adverse effects. 9. This paginated copy of the Administrative Record was introduced by plaintiff. The Corps of Engineers also introduced, as Exhibit G-1, portions of the Administrative Record. For convenience we cite only to plaintiff's exhibit when referring to documents from the Administrative Record. 10. Dr. Shenkel explained a Level I search is a preliminary search to determine whether archaeological ruins exist in the area. Koch was in favor of a Level II search which is a much more in-depth study, including a literature search. 11. Although Decker testified he informed the SHPO of the Corps' conclusion that a survey was not required, he did not testify that the SHPO concurred in that decision. On the contrary. Koch testified that the SHPO is still recommending a survey. 12. In 1976, e.g., Dr. Shenkel found "that beneath the present surface a large portion of the Fort structures remain relatively undisturbed." G-17 at 2. 13. The consultation process with the SHPO must be completed prior to requesting the Advisory Council on Historical Preservation's comments on the project. 36 CFR 800.4(a)(4). If, after proper consultation with the SHPO by the Corps, the regulations would require comments from the Advisory Council, such should be sought. 14. Counsel for the Corps advised the court during trial that the Corps treats any project requiring a § 404 permit as a "major Federal action" within the meaning of the statute. 15. 33 CFR 325.2(a)(4) provides: The District Engineer shall prepare an Environmental Assessment on all applications. The Environmental Assessment shall be dated, signed, and placed in the record and shall include the expected environmental impacts of the proposal. Where the District Engineer has delegated authority to sign permits for and in his behalf, he may similarly delegate the signing of the Environmental Assessment. In those cases requiring an Environmental Impact Statement (EIS), the draft EIS may serve as the Environmental Assessment. Where an EIS is not prepared, the Environmental Assessment will include a statement that the decision on the application is not a major Federal action significantly affecting the quality of the human environment. 16. 33 CFR 209.410(e)(7)(i) reads in toto: (7) Regulatory permits. (i) Subject to the guidance contained in the regulations on policies and procedures for regulatory permits, an assessment of the impact of a proposed activity on all aspects of the quality of the environment is required. That assessment will include consideration of environmental information provided by the applicant, all advice received from Federal, State and local agencies, and comments from the public. 17. Decker stated that an EIS, by contrast, must be a specific document as the regulations set forth certain requirements as to content, format and procedures, including circulation of drafts. 18. 33 CFR 325.2(a)(6) provides in pertinent part: After all above actions have been completed [i.e., assigning the project a number, acknowledging receipt of the application, reviewing it for completeness, issuing of a public notice, placing comments received in the administrative record, determining the need for a public hearing and preparation of the environmental assessment and the placing of it in the record] the District Engineer will determine in accordance with the record and applicable regulations whether or not the permit should be issued. He shall prepare a Findings of Fact on all applications to support his determination. The Findings of Fact shall include the District Engineer's views on the probable effect of the proposed work on the public interest including conformity with the guidelines published for the discharge of dredged or fill material in waters of the United States (40 CFR Part 230) or with the criteria for dumping of dredged material in ocean waters (40 CFR Parts 220 to 229), if applicable, and the conclusions of the District Engineer. The Findings of Fact shall be dated, signed, and included in the record prior to final action on the application. Where the District Engineer has delegated authority to sign permits for and in his behalf, he may similarly delegate the signing of the Findings of Fact. 19. We further note that the PEA, now claimed to be part of the EIA, was not enclosed. The PEA itself could not be considered an EIA as the regulations require that "all advice received from the Federal, State and local agencies, and comments from the public" be considered in the assessment. 33 CFR 209.410(e)(7)(i).These comments were not received until after the PEA was completed. 20. We consider evidence other than that contained in the administrative record as the testimony reveals that much of the decision making process was carried on informally in conversations both among Corps personnel and with persons outside the Corps. 21. 36 CFR § 800.9 states: Federal agencies should coordinate NEPA compliance with the separate responsibilities of the National Historic Preservation Act and Executive Order 11593 [issued pursuant to the NHPA and directing compliance] to ensure that historic and cultural properties are given proper consideration in the preparation of environmental assessments and environmental impact statements. Agency obligations pursuant to the [NHPA] and Executive Order 11593 are independent from NEPA and must be complied with even when an environmental impact statement is not required. 22. The Regulatory Functions Branch is part of the Operations Division and has the responsibility to review permit applications. As we understand it, the structure of this Branch, with pertinent personnel, is: Operations Dvision C. J. Nettles, Chief Regulatory Functions Branch Charles W. Decker, Chief Permit Section [Roger Swindler, Chief] Regulatory Assessment Section [Dr. Lloyd Baehr] At the instigation of the Operations Division, part of the work on this permit application was also done in the Planning Division, headed by Mr. Roy, as is more fully set out in the text infra. 23. We also note that although the Corps and the Levee Board personnel both testified this was chiefly a flood control project, "flood damage prevention" is only rated minor beneficial on the PEA form. 24. Exhibits G-9, dated 1/24/79; G-10, dated 1/26/79; and G-11, dated 1/19/79. 25. G-12, dated 2/12/79. 26. This memo is actually typed at the bottom of Nettles' memo requesting the socioeconomic impact assessment appearing at AR 278. Mr. Roy's first name does not appear on the document nor was it elicited in testimony at trial. 27. The "permit area" is the area where the work which actually requires the permit is done, in this case the area where the dredging and filling is to be done. The project area takes in all the work to be done in conjunction with the work in the permit area and its environmental impacts are also reviewed by the Corps in considering the permit application. 28. As noted earlier, comments from the Center for Wetland Resources were solicited by the Corps, but no response was received. Dr. Thompson, employed by the Center at that time, said he first became aware of the project after reading about it in the newspaper but could not remember when that was. 29. Testimony on past studies of the lake indicate there are between 2,000 and 20,000 acres of grassbeds in the lake. Dr. Wagner testified that there has been a 25% decrease in the grassbeds on the south shore in the last 20 years. The witnesses testified there are grassbeds at a number of places in the Lake with significant grassbeds located on its north shore and near the Rigolets, at South Point and Irish Bayou. 13 ELR 20003 | Environmental Law Reporter | copyright © 1983 | All rights reserved |