Bayou St. John Improvement Association v. Sands

No. 81-1358-EJB (E.D. La. June 17, 1982)

The court modifies an order, 13 ELR 20003, enjoining a flood protection project because of the Army Corps of Engineers' failure to comply with the National Historic Preservation Act (NHPA) and the National Environmental Policy Act (NEPA) before granting a § 404 permit under the Federal Water Pollution Control Act. The court finds the Corps' determination that the submerged grassbeds were not wetlands as defined in its regulations to be reasonable. The court next denies defendants' motion to lift the injunction for all except the bayou's west shore levee. Applying the reasonableness standard, it also rules that the Corps thoroughly analyzed the environmental effects of the project in the environmental impact assessment and reasonably concluded that such effects were minimal. Therefore, it denies plaintiff's motion that an environmental impact statement (EIS) be prepared. The court finds that the Corps' decision not to prepare an EIS and its compliance with NEPA cannot be determined until the bayou's eligibility for inclusion in the National Register of Historic Places has been determined. However, the court modifies the injunction to allow elements of the project not related to flood protection to proceed because those activities would have no impact on the environment or on the bayou's eligibility for the National Register.

[Prior ruling are listed at 13 ELR 20003 — Ed.]

Counsel are listed at 13 ELR 20003.

[13 ELR 20011]

Boyle, J.

Memorandum Opinion and Order

In a prior ruling¹ we enjoined implementation, under United States Corps of Engineers, New Orleans District, Section 404 Permit, dated May 2, 1980, 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 based on findings the Corps (a) had not conferred with the State Historic Preservation Officer (SHPO) as required by the National Historic Preservation Act (NHPA); (b) had violated its regulations requiring preparation of an Environmental Impact Assessment (EIA); and (c) was unreasonable in its decision, based on the then existing record, that an Environmental Impact Statement (EIS) was not required for the project. Making no finding an EIS was necessary, we concluded, however, the Corps should have opportunity to remedy such defects and retained jurisdiction.

The defendants have now moved:

1. To modify said injunction to permit implementation of the enjoined project except as to that part which provides for degrading the Bayou's west shore levee.

2. To retain jurisdiction and maintain said injunction only as it applies to degrading the Bayou's west shore levee, until further orders of this Court.

3. Alternatively, to retain jurisdiction and maintain said injunction only as to such part of the project requiring federal licensing (Section 404 permit).

The plaintiff opposes the motion contending (1) that the review of the project under the National Historic Preservation Act (NHPA), 16 U.S.C. § 470 et seq., is incomplete because the Advisory Council on Historic Preservation has not been afforded a reasonable opportunity to comment on the project, as called for by 16 U.S.C. § 470(f) in view of the apparent eligibility of the entire Bayou for the National Register of Historic Places (NRHP) (a factor not taken into account by the EIA); and (2) that the EIA is additionally deficient under the National Environmental Policy Act, 42 U.S.C. § 4331 et seq., (NEPA) in failing to evaluate the project's effects on "wetlands," as plaintiff describes part of the Bayou north of Robert E. Lee Boulevard, a requirement plaintiff infers from the Council on Environmental Quality's (CEO) regulations implementing NEPA, viz., 33 CFR § 320.4(b)(2)(i),² and from the fact that the project would destroy up to 1.6 acres of grass beds that presently serve important nursery and spawning functions. Plaintiff further asserts that the court has authority to enjoin locally financed and non-federally licensed portions of projects that contain federal components.

In support of its own alternative motion for an EIS, the plaintiff argues that an EIS should be ordered even if the court finds that the Corps has satisfied the requirements of NEPA and the NHPA, because an EIS is always necessary for "major federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). Moreover, the CEQ regulations indicate that the factors to be considered in evaluating the "significance" of a project include: the extent to which the effects are likely to be highly controversial; the adverse effects the action may have on sites listed or eligible for listing in the NRHP; and the unique characteristics of an area, such as proximity to historic or cultural areas, park lands, and wetlands. See 40 CFR § 1508.27, which, it is claimed, squarely applies to the project area. The Corps' own regulations also call for the avoidance of projects that may adversely affect wetlands. 33 CFR § 320.4(b)(2)(i).

Finally, plaintiff argues that the court's memorandum opinion and order (Record Document 46) was incorrect in reasoning: (1) that plaintiff is precluded from raising water quality and aquatic life issues because it did not raise them in the administrative record; (2) that the adequacy of the environmental assessment is to be judged on whether it is correct based solely on the facts available at the time it was written; and (3) that plaintiff must somehow quantify an adverse effect that may have been inadequately considered by the federal agency.

A reading of the trial record and of our memorandum opinion and order clearly shows plaintiff's claims that it was precluded from raising water quality and aquatic life issues because it did not raise them in the administrative record is [13 ELR 20012] baseless. Considerable evidence was submitted by both sides on these issues and we specifically found the Corps' conclusions of no adverse impact on the water quality and fish life elements of the environment were supported by the evidence. Memorandum Opinion and Order, supra, at p. 23. Plaintiff's second and third points go to the issue of standard of review which is discussed below.

In opposition to this motion, defendants note that the Findings of No Significant Impact (FONSI)³ actually concluded that the project will not have a significant impact on the human environment and that the Corps' decision not to compile an EIS is reviewable only under a "reasonableness" standard, according to Fifth Circuit jurisprudence.

With respect to plaintiff's particular arguments to support the need for an EIS, defendants claim: (1) that the FONSI concluded that no wetlands were involved in the project, and the court's opinion herein has already characterized the Bayou as a natural stream (Record Document 46 at 2); (2) that an Advisory Council letter of April 3, 1981 (Record Document 29) indicates that the Corps had already complied with Council regulations; (3) the SHPO has indicated no objection to the project, and there is no support for plaintiff's theory that the entire Bayou is an historic property; and (4) the mere controversiality of a project is no reason to require an EIS.

Plaintiff's rebuttal maintained (1) that the failure of the Corps to characterize the project area as a "wetland" violated the "reasonableness" standard, and (2) the mere controversiality of the project was never intended as the exclusive factor in support of an EIS.

The court heard oral argument on these motions on February 19, 1982, after which the parties deposed the SHPO, Mr. Robert B. DeBlieux, to ascertain the SHPO's true posture on these matters. On April 7, 1982, the motions came under submission following the filing of Mr. DeBlieux's deposition and a reopening of the evidence to receive additional exhibits from plaintiff and defendants.

In response to our prior ruling, an environmental assessment, based on information contained in the administrative record placed in evidence at the trial and on additional information relating to cultural resources developed after consultation with the SHPO, was filed herein on September 29, 1981. Record Document 49. At all times during the evaluation of the project, Corps personnel considered the area as though it were eligible for listing on the National Register of Historic Places.⁴ The SHPO withdrew all objections to the project, except as to the degrading of the west levee. In response to this, the Orleans Levee Board agreed to revise the project plan to eliminate the degrading of the west levee. But on September 29, 1981, the same day on which the Corps filed the EIA, the SHPO informed defendants of his decision to place the Bayou before a state committee to consider its potential eligibility for listing on the NRHP. The Corps considers this to be insignificant, in that the "entire area" was considered eligible for such listing by those who prepared the EIA. The Corps' position is that the area had been so heavily dredged in past years to permit passage of large boats that any cultural remains in that area were long ago destroyed. However, in the event that historic artifacts are unearthed during construction, the SHPO will be notified and operations will cease pending his recommendations.

We previously found that 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 Bayou⁵ extends approximately four miles in length.

In the 1930's the Levee Board reclaimed a portion of the Lake bottom in the area extending from the Orleans-Jefferson Parishes boundary eastward for more than five miles. Land thus created has been developed into lakefront residential subdivisions on both sides of the Bayou. Park and recreation areas were created. Roadways and bridges were built in the new land areas.

The reclamation project resulted in the creation of a man-made 800 feet canal extension of the Bayou, destroying its natural mouth and developing the present Bayou mouth 800 feet north of its natural mouth.

On each bank of the man-made extension of the Bayou a seawall was constructed and exists southward about 200 feet from the Lake into that extension. Also from the terminus of the aforesaid seawalls southward to Robert E. Lee Boulevard the banks are lined with steel sheet piling atop which is a concrete cap. Concrete bulkheads and revetments have been constructed along the east bank from Robert E. Lee Boulevard to Esplanade Avenue. Concrete bulkheading is continuous on both banks in the one mile reach of the Bayou from Esplanade Avenue to Lafitte Street, the present south terminus of the stream.

Until the Bayou was closed at Robert E. Lee Boulevard, it was actively used by various types of boats and because of silting at the mouth frequent dredging was required in order to allow navigation of larger vessels.

The existing high rise vehicular bridge spanning the Bayou at Lakeshore Drive, about 225 feet south of the man-made Bayou mouth and about 575 feet north of the original mouth of the Bayou, 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 present 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.

A low level, at-grade bridge exists at Robert E. Lee Boulevard and has provided the only vehicular crossing of the Bayou in near proximity to the Lake since the lakefront bridge closure in 1979. During the 1960's the Levee Board erected a water control structure in the Bayou at Robert E. Lee Boulevard which it still operates and maintains. That structure seals the Bayou at that point, about 2000 feet south from the present mouth, but allows water to flow from the lake side of the structure into the Bayou south of Robert E. Lee Boulevard through a two foot valve which is always kept partially open. South of Robert E. Lee Boulevard 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.

The Levee Board developed the project 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. 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 filling the Bayou for a distance of about 372 feet southward from its present mouth or about 1.6 acres of the Bayou would be necessary. Water flow through the filled area would be provided by a culvert system consisting of two 36-inch culverts extending 305 feet southward from thelake 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 Corps' permit was issued on the Levee Board's application therefor to allow dredging and placement of fill for a project consisting of dismantling and removing the present bridge, degrading present levees along the east and west sides of the Bayou, building a new flood protection levee across the Bayou and constructing a roadway at grade connecting the east and west sides of the Bayou. The project, as now proposed, is the same with the exception of deletion of degradation of the levee on the west bank as previously noted.

Roadway and traffic circle construction, bridge demolition [13 ELR 20013] and landscaping, and other aspects of the project, are not involved in flood protection and are not themselves subject to federal licensing.

The significant controversy as to the environmental issues relevant to the preparation of an EIS is whether or not the Bayou St. John project area is a wetland. (Plaintiff wisely concedes that mere controversiality is insufficient to warrant an EIS. The "historicity" issues are discussed below.) Plaintiff alleges that the grass beds in the Bayou, which it is conceded perform biological functions for the fish in the area, make the Bayou a wetland. Plaintiff asserts that the Corps' regulations "define" wetlands as areas "which serve important biological functions, including food chain production, general habitat, and nesting, spawning, rearing and resting sites for aquatic or land species." 33 CFR § 320.4(b)(2)(i) (1980). The Corps' actual definition of wetlands, cited correctly by the Corps and the other defendants, is: "those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas." 33 CFR § 323.2(c) (1980).This definition hinges not on the spawning and food production functions of an area, but on vegetation types and soil saturation.

Chief Judge Nauman Scott recently interpreted this definition in Avoyelles Sportsmen's League, Inc. v. Alexander, 511 F. Supp. 278 [11 ELR 20321] (W.D. La. 1981):

[W]etlands are transition areas lying between the aquatic and the terrestrial zone. Necessarily wetlands are at times wet and at other times dry. By their nature they are subject to periodic pulses of water. Were they always wet they would constitute part of the aquatic zone. . . . There are three areas of analysis to determine whether a tract of land is or is not a wetland under the 1977 definition: the type of solid, the degree and frequency of saturation, and the type of vegetation.

Id. at 289.

Judge Scott stresses that it is "the intermittent or temporary duration of the inundation" that is determinative. Id. at 290. Therefore, an area that is constantly inundated, such as Bayou St. John, is not a wetland, under this definition. Plaintiff has put on no evidence concerning the types of soils, inundation, or vegetation. Its main argument is that the Bayou is a wetland because of the biological functions it performs; however, this is not an element in the definition of wetlands.

In Save Our Ten Acres v. Kreger, 472 F.2d 463, 465 [3 ELR 20041] (5th Cir. 1973), the court reviewed agency determinations under a rule of reasonableness. See also Environmental Defense Fund v. Marsh, 651 F.2d 983, 992 [11 ELR 21012] (5th Cir. 1981); Sierra Club v. Hassell, 636 F.2d 1095, 1097 [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), cert. denied, 449 U.S. 900, 101 S. Ct. 169 (1980). Under this standard, when the plaintiff raises a substantial environmental issue, the burden then shifts to the defendant to support the reasonableness of the negative determination. The Corps' EIA includes an analysis of the existing vegetation in the area (Record Document 49 at 9 and 16), and determines that all of aquatic vegetation is composed of submerged grass species. The grass beds are constantly submerged. There is no "intermittent inundation," as is required under the Avoyelles interpretation of the Corps' definition. The FONSI filed by the Corps in December of 1981 (Record Document 61) concludes that no wetlands are involved in the project.

Admittedly the Corps' determination that no wetlands are involved is not supported by painstaking evidence as to soil types and frequency of inundation. However, plaintiff has put on no evidence of these conditions either, and bases its argument on an erroneous definition of wetlands. The United States Supreme Court's most recent decision concerning NEPA procedures held that "once an agency has considered the environmental consequences, [the reviewing court] cannot 'interject itself within the area of discretion of the executive as to the choice of the action to be taken'." Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 100 S. Ct. 497, 500, 62 L. Ed. 2d 433 [10 ELR 20079] (1980) (per curiam), quoting Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21, 96 S. Ct. 2718, 2730 n.21, 49 L. Ed. 2d 576 [6 ELR 20532] (1976). There is no doubt that the Corps considered the environmental consequences of the project. Record Document 49 at 10-18.

The Strycker's Bay "consideration" standard is arguably more lenient than the reasonableness standard enunciated by the Fifth Circuit. See Sierra Club v. Hassell, supra. However, applying the reasonableness standard as to the environmental issues it is still clear that the Corps' decision not to undertake an EIS was reasonable. The Corps considered in depth the environmental consequences, alternatives to the proposed action, and the impacts of the project. The agency followed proper procedure and did not act in an arbitrary or capricious manner. The Strycker's Bay consideration standard has been adopted in the Fifth Circuit, even though the reasonableness standard language pervades certain cases. In Citizens for Mass Transit, Inc. v. Adams, 630 F.2d 309, 313 (5th Cir. 1980), the court indicated that the role of the reviewing court is to ensure that the agency followed the procedures required by law, including considering the environmental consequences (citing Strycker's Bay). Other Fifth Circuit guidance is that "[i]f the determination [not to do an EIS] is reasonable and made objectively and in good faith on a reviewable environmental record, the determination must be upheld." Save the Bay, Inc. v. U.S. Corps of Engineers, supra.

In sum, the mandate of agencies in NEPA is "essentially procedural." Vermont Yankee Nuclear Power v. Natural Resources Defense Council, 435 U.S. 519, 98 S. Ct. 1197, 1219, 55 L. Ed. 2d 460 [8 ELR 20288] (1978). "Neither the statute nor its legislative history contemplates that a court should substitute its judgment for that of the agency as to the environmental consequences of its actions." Kleppe v. Sierra Club, supra. The role of the court is to determine whether the agency has reasonably considered the environmental consequences of its actions, and has followed NEPA's procedural requirements. If insufficient weight was given to environmental considerations in the environmental assessment, the court can order an EIS. South Louisiana Environmental Council, Inc. v. Sand, 629 F.2d 1005, 1012 (5th Cir. 1980). However, this did not occur in the case at bar, because the environmental assessment thoroughly analyzed the environmental consequences and concluded that only 1.6 acres of grassbeds would be destroyed — an insignificant effect on the human environment. All relevant environmental effects were considered, and all NEPA procedures were followed.There is no environmental effect — either beneficial or adverse — that the Corps did not consider, contrary to plaintiff's allegations.

The National Historic Preservation Act of 1966 established the Advisory Council on Historic Preservation as an independent agency of the United States to advise the President and the Congress on historic preservation matters, recommend measures to coordinate Federal historic preservation activities, and comment on Federal actions affecting property included in or eligible for inclusion in the NRHP. 16 U.S.C. §§ 470, et seq.; 36 CFR, Part 800. Federal agencies like the Corps with direct or indirect jurisdiction over a Federal, or federally licensed or assisted undertaking are required by the Act to afford the Council a reasonable opportunity for comment on such undertakings that affect properties eligible for inclusion or included in the NRHP prior to the agency's approval of any such undertaking. 36 CFR § 800(b)(1).

An "effect" on an eligible property "occurs when an undertaking changes the integrity of location, design, setting, materials, workmanship, feeling, or association of the property that contributes to its significance in accordance with the National Register criteria." 36 CFR § 800.3(a). An "effect" can be direct or indirect. Id. Plaintiff argues that this project will cut off Bayou St. John from Lake Pontchartrain, thereby destroying the historical integrity of the Bayou. This contention arguably indicates an "adverse effect" according to the Park Service regulations."Adverse effects on National Register or eligible properties . . . include . . . [i]solation from or alteration of the property's surrounding environment." 36 CFR § 800.3(b)(2).

[13 ELR 20014]

Federal agencies undertaking a project having an effect on such property must provide the Advisory Council on Historic Preservation a reasonable opportunity to comment. 16 U.S.C. § 470f. "[H]aving complied with this requirement, the agency may adopt any course of action it may feel appropriate. While the Advisory Council comments must be taken into account and integrated into the decisionmaking process, the program decision rests with the agency implementing the undertaking." 36 CFR § 60.12(a). However, the agency official, the SHPO, and the Executive Director of the Advisory Council shall consult "to consider feasible and prudent alternatives to the undertaking that could avoid, mitigate, or minimize adverse effects on a National Register or eligible property." 36 CFR § 800.6.

The section of the Bayou north of Robert E. Lee Boulevard is not listed in the NRHP (plaintiff insists that other parts of the Bayou are listed, but no evidence thereof has been adduced); nor, for that matter, has there been a determination that the Bayou north of Robert E. Lee Boulevard is even eligible for inclusion in the register. Nevertheless, "[i]t 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." 36 CFR § 800.4(a).

The regulations go on to set forth the duties of an agency official with reassuring, not to say resounding, clarity:

(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. [Which does not appear to be so in the instant case.] Before the Council completes action pursuant to § 800.6, the Secretary must find the property eligible for inclusion in the National Register. 36 CFR § 800.4(a)(3) and (4).

The Corps' original failure lay in not having conferred with the SHPO. Attempting to remedy this defect, the Corps conferred with the SHPO and gave his views considerable deference in the preparation of the EIA. Record Document 49 at 11-12 and exhibit 6 thereto. It appears, however, that under the ministrations of Mr. Raymond J. Boudreaux, President of the plaintiff organization, the SHPO has had a change of heart. On July 15, 1981, the SHPO had indicated to the Corps his substantial approval of the project, conditioned on the west levee's being left intact. Record Document 49, exhibit 6. Yet a letter from the SHPO to Mr. Raymond J. Bourdreaux of August 4, 1981 expressed the SHPO's agreement with the plaintiff "that the entire bayou may be eligible for a Register listing." Record Document 55 attachment. On August 14, 1981, the EIA was completed. Record Document 49. On September 29, 1981, the SHPO informed the Corps of his belief in Bayou St. John's "potential eligibility for listing on the National Register of Historic Places. For this reason, I have decided to place the Bayou St. John nomination on the agenda for the November 4, 1981 State Review Committee meeting."⁶ Record Document 55 attachment. On the same day, September 29, 1981, the EIA was filed into the record.

In our ruling of May 28, 1981 we retained jurisdiction over the entire project, so the SHPO's second letter to the Corps cannot be construed as post hoc, at least not until the court has determined that NHPA compliance has been achieved. Moreover, even apart from the court's supervision of the project, pertinent regulations specifically provide that 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. 36 CFR § 800.4(a)(3) (emphasis added).

Thus, in the face of the SHPO's changed position, it matters little that there is persuasive evidence against the Bayou's eligibility, such as the alteration to the mouth of the Bayou and its man-made canal appendage of the 1930's, other subsequent man-made changes and the constant dredging of the project area when the Bayou was navigable.

Furthermore, the Corps' compliance with NHPA must be coordinated with its compliance with NEPA. 36 CFR § 800.9. It follows, then, that the reasonableness of the Corps' decision not to prepare an EIS cannot be weighed until the Bayou's eligibility vel non has been determined, and, if eligible, the Advisory Council given an opportunity to comment on the proposed project's impact on the Bayou.

The court is not unmindful of the potential for great loss of life and property from hurricane flood waters out of Lake Pont-chartrain which could be averted, or at least minimized, if the flood protection aspects of the project were allowed to proceed to completion. The court emphasizes it has no desire to thwart the obviously laudable desire of the Corps and the Levee Board to provide the low lying City of New Orleans with so badly needed additional security from tidal flooding.No one, including plaintiff and its members, can seriously dispute the flood protection benefits of the project. Our desire and willingness to see people and property, rather than piscatorial species, protected is, however, severely restrained at this time by NEPA and NHPA. Eventually and hopefully, when all handcuffing restraints of the law are released, we can permit the proposed flood protection project to be begun and completed before disaster strikes to take its toll of lives and property. However, in the present state of the law and this record we cannot allow it to proceed at this time.

Thus, with respect to the eligibility of the Bayou for the National Register, the Corps is obliged to comply with the requirements of 16 U.S.C. § 470f and the relevant regulations. 36 CFR § 800.4.

We will modify the injunction to allow certain non-flood protection related elements of the Levee Board's project to proceed.

We are asked to lift the injunction so as to allow the Levee Board to dismantle the condemned existing bridge,⁷ which crosses the man-made portion of the Bayou, to construct roadways and traffic circles and to do landscaping on the east and west sides of the stream.⁸

Federal courts have the power "to enjoin non-federal concerns pending the observance of environmental duties if a 'partnership' with the federal government can be shown. . . . The presence of federal funds is typically sufficient to establish such a relationship." Monarch Chemical Works, Inc. v. Exxon, 452 F. Supp. 493, 501 [8 ELR 20727] (D. Neb. 1978). (Citations omitted.)

[13 ELR 20015]

However, whether non-federal aspects of a project may be allowed to proceed is discretionary with the court.⁹

The work sought to be removed from the effects of the injunction does not involve federal funding. The presence of the bridge or its absence and the construction of roadways and traffic circles and landscaping on either side of the Bayou would have no bearing on the Bayou's eligibility or non-eligibility for the National Register, nor would those works effect any impact on the environment or the Bayou or the flood protection project area. From an aesthetic standpoint, removal of the bridge and landscaping would be beneficial. Further delay in performing those works could conceivably subject the public to additional expense involved in steadily rising construction costs.

In executing such work the Levee Board and its contractors will be required to proceed in such manner and with such methods as will assure that the integrity and possible eligibility for the National Register of the Bayou and other areas that remain subject to the injunction are not adversely affected.¹⁰

Accordingly,

IT IS ORDERED that:

1. The plaintiff's motion for an EIS be DENIED without prejudice.

2. The defendants' motion to modify the injunction to permit implementation of the enjoined project, except as to degrading the Bayou's west shore, as well as their motion to retain jurisdiction and maintain the injunction only as it applies to degrading the Bayou's west shore levee until further orders of the court, be DENIED.

3. The defendants' alternative motion to modify the injunction to remove from its effect demolition of the bridge and construction of roadways and traffic circles and landscaping on both sides of the Bayou be GRANTED.

IT IS FURTHER ORDERED that the Levee Board may proceed with the work to the extent described in Appendix A and that such work shall be accomplished in such manner and by such appropriate methods, including, but not limited to those described in said Appendix A, as will assure that the integrity and possible eligibility for the National Register of the Bayou and other areas which remain subject to the injunction are not adversely affected.

The court retains jurisdiction to render sua sponte or on motion of any party such further orders as may be appropriate.

1. See Memorandum Opinion and Order, Record Document #46.

2. 33 CFR § 320.4(b)(2)(i) provides: "Wetlands considered to perform functions important to the public interest include: (i) Wetlands which serve important natural biological functions, including food chain production, general habitat, and nesting, spawning, rearing and resting sites for aquatic or land species . . . ."

3. On December 9, 1981, after the filing of defendants' Motion to Modify the Injunction, FONSI and supplemental FONSI were filed. Record Document #61.

4. See Record Document #49 at p.11 and Exhibit 4.

5. Bayou St. John was declared non-navigable in 1936. 33 U.S.C. 49.

6. The evidence does not disclose the action of the Committee, if any.

7. Since the Bayou is non-navigable federal permits are not required for work or structures, including bridges, in the Bayou.

8. The Levee Board's earlier motion to modify the TRO to allow demolition of the bridge was referred to the merits and was implicitly denied because of the results reached on the merits.

9. See Highland Cooperative v. City of Lansing, et al. (W.D. Mich. 1980), 492 F. Supp. 1372 [10 ELR 20852], wherein the court declared it would exercise its discretion to enjoin an entire two phased major federal action highway project where no allegations of adverse impact had been made as to phase one. See also Hall County Historical Society, Inc. et al. v. Georgia D.O.T., et al. (N.D. Ga. 1978) 447 F. Supp. 741 [8 ELR 20580], where the court enjoined a federal-aid highway project because of non-compliance with NHPA and the applicable regulations thereunder, but allowed a segment of the project to proceed conditioned on the sponsor's reimbursing federal funds already used and withdrawal of requests for further federal funds for use in such segment.

10. In conference with counsel for all parties we required submission of a better definition of the work involved and procedures to accomplish it which would insure the integrity of the Bayou in the area.See Minute Entry of June 14, 1982, Record Document #87. Copies of the Levee Board's submission and the comments of plaintiff's counsel thereon are attached as Appendices A and B, respectively. (Originals are in the record as Documents 88 and 89, respectively.)