Save Our Wetlands v. United States Army Corps of Engineers

No. Civ.A.01-3472 (UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA January 15, 2002)

The court denies an environmental group's motion to preliminarily enjoin construction of a development project in Louisiana until the U.S. Army Corps of Engineers prepares an environmental impact statement for the project. The court first holds that the Corps' finding of no significant impact for the project was not arbitrary and capricious. The Corps adequately considered the direct, indirect, and cumulative effects of the proposed development, and its conclusion that the project will not significantly increase flooding was not arbitrary and capricious. Similarly, the Corps adequately considered alternatives and mitigation measures for the project. The environmental group, therefore, failed to demonstrate a likelihood of success on the merits. The court next holds that, because the Corps concluded that there is no significant chance of increased flooding as a result of the project, there is no threat of irreparable injury. The court further holds that a preliminary injunction would not be in the best interest of the public. The group's motion, therefore, was denied.

Counsel for Plaintiff
Plauche F. Villere Jr.
Lenfant & Villere
837 Gravier St., New Orleans LA 70112
(504) 523-4291

Counsel for Defendant
Robert L. Klarquist
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Duval, J.

[32 ELR 20423]

Duval, J.:

Order and Reasons

Before this Court is plaintiff's Motion for Preliminary Injunction filed by Save Our Wetlands (rec. doc. 7) seeking to enjoin construction of a development project located in the Bayou Liberty Basin of St. Tammany Parish. Pursuant to Federal Rule of Civil Procedure Rule 65 and the consent of the parties, plaintiff's Motion for Preliminary Injunction also serves as the trial on the merits.

The entire construction site includes thirty eight acres. Seven of those acres are classified as wetlands. The developer of the site is Stirling Slidell, L.L.C., and its permit for construction was approved by the United States Corps of Engineers ("Corps") on November 9, 2001. The Court denied plaintiff's Motion for a Temporary Restraining Order on November 29, 2001 and heard oral arguments on the Motion for a Preliminary Injunction on December 18, 2001. The Court has considered the memoranda, administrative record, and oral presentations and concludes that the Motion for Preliminary Injunction should be DENIED.

Background

Resolution of plaintiff's motion hinges on the Court's interpretation and application of the National Environmental Policy Act (NEPA) (42 U.S.C. § 4321) and the Clean Water Act (33 U.S.C. § 1344) to the facts presented. Under NEPA, a federal agency is required to compile an environmental impact statement (EIS) when a proposed federal activity may "have a significant effect on the human environment." § 102(2)(C). To determine whether an EIS is required, the federal agency prepares an "environmental assessment" (EA). An EA is a concise document that: (1) describes proposals and alternatives for construction, (2) considers the viability of alternatives, direct and indirect impacts, and cumulative effects of the proposed action, and (3) lists the agencies and persons consulted during preparation of the EA. The Fifth Circuit has further explained that an agency's analysis of cumulative effects must include: (1) the area in which effects of the proposed project will be felt, (2) impacts that are expected in that area from the proposed project, (3) other past, proposed, and reasonably foreseeable projects that may impact the same area, (4) impacts or expected impacts from these other actions, and (5) the overall impact that can be expected if the individual impacts are allowed to accumulate. Fritiofson v. Alexander, 772 F.2d 1225, 1245 [15 ELR 21070 (5th Cir. 1985)].

After reviewing the EA, the federal agency either. (1) makes a finding of no significant impact (FONSI) or (2) prepares an EIS. Under either alternative, the federal agency is required to clearly articulate the basis for its action, including its findings on factual issues.

In the case at bar, Stirling, applied for a dredge and fill permit from the Corps of Engineers on January 25, 2001. The Corps subsequently issued a Joint Public Notice (JPN) with the Louisiana Department of Environmental Quality. A plethora of agencies responded to the JPN including the: (1) EPA—listing a number of requirements that had to be met before the issuance of a permit by the Corps, (2) United States Department of Commerce and National Marine Fisheries Services—noting that the resources affected by the proposed project are not ones for which they are responsible, (3) Louisiana Department of Wildlife and Fisheries, (4) United States Fish and Wildlife Service—conditioning its acceptance on the inclusion of measures that will offset unavoidable impact to fish and wildlife resources, (5) concerned citizens—primarily objecting to increased flooding in the area, (6) City of Slidell through its City Engineer—accepting the Duplantis Report (discussed below) as fulfilling city requirements and codes, and (7) United States Department of Agriculture—noting that the project would have no adverse affect on the surrounding environment if appropriate erosion control measures were taken during construction. In response, Stirling prepared: (1) a detailed response to the JPN comments and (2) project alternatives for the Corps to consider.

Following the JPN period, the proposed project was approved by: (1) the Louisiana Department of Environmental Quality which issued a Certificate of Water Quality, (2) the Corps' Hydrology Branch which concluded in a memo dated September 11, 2001 that ". . . the proposed project will not increase the overall magnitude of flooding on the other properties nearby the project site or throughout the Bayou Liberty Basin," and (3) the City of Slidell which notified the Corps that it had worked with Stirling to "assure that this development [would] be done in accordance with the City's requirements not only with respect to drainage but all of the City's requirements." (Administrative Record at 375-76).

Thereafter, the Corps approved Stirling's permit application and concluded that "with appropriate Special Conditions and mitigation measures, the project would not have a significant impact on the environment and was not contrary to the public interest." In its EA, the Corps addressed: (1) project needs and location, (2) alternatives, (3) environmental impacts including water quality, flood control, wetlands, and wildlife habitat, (4) secondary and cumulative impacts, and (5) comments submitted by concerned citizens and agencies.

In its study of potential direct impacts caused by flooding, the Corps reviewed and adopted the Duplantis Report,¹ which had already been approved by the City of Slidell Engineering Department as meeting the city requirement that a construction project incorporate retention/detention measures to control storm water runoff and that post-construction runoff shall, at a maximum, not exceed 90% of pre-construction runoff.

Similarly, the Corps addressed the cumulative effects of this project and concluded that while this and other existing and reasonably foreseeable future projects will: (1) contribute to the cumulative loss of undeveloped land in the area and replacement of natural drainage and flood plain functions with engineered drainage and flood control systems in the area, (2) cause individual habitat wildlife to abandon the area for other suitable habitats, (3) increase automobile emissions and light pollution in the area, (4) raise the temperature of water runoff from the post project site, (5) further erode the soil in the surrounding area, and (6) increase resident and visitor population densities, such changes will be "negligible to very minor." The Corps also noted that this project and other present and reasonably foreseeable future projects will enhance the economics of Slidell and provide municipal funds necessary to improve, among other things, drainage to alleviate existing flooding in the city.

Thus, the Corps concluded that an EIS was not required because the proposed project would have no significant impact on the human environment. Additionally, the Corps mandated the implementation of a detention pond and the purchase of seven acres of pine savannah [32 ELR 20424] wetlands in the Bayou Liberty watershed as a mitigating measure and noted that "if a mitigation requirement eliminates significant environmental effects, no EIS is required." Citing Roanoke River Basin Assoc. v. Ronald Hudson, 940 F.2d 58 [21 ELR 21238] (4th Cir. 1991) and Friends of the Payette v. Horseshoe Bend Hydroelectric Co., 988 F.2d 989 [23 ELR 20530] (9th Cir. 1993).

Plaintiff's Motion for Preliminary Injunction

In its Motion for Preliminary Injunction, plaintiff contends that the Corps' EA does not meet the requirements of NEPA because it: (1) did not consider direct and secondary effects of the development on area flooding, (2) failed to factor in significant cumulative effects of past, present and reasonably foreseeable future development, including the proposed development, on flooding in the Bayou Liberty Basin, and (3) reached a decision that was arbitrary and capricious. Specifically, plaintiff takes issue with the Duplantis report which concluded, in part, that any flooding caused by this project would be mitigated by a detention pond. This report was relied on by Stirling (instead of conducting its own flood analysis) and adopted by the Corps in its EA. Plaintiff alleges that the Duplantis report is insufficient and misleading because: (1) it focused on "peak flow rates of stormwater from the site"—not the total volume of stormwater that will increase or decrease after construction is completed, (2) the detention pond is only designed to hold rainwater—not tailwater or water surface elevations, (3) it failed to address the increased elevation of the site or any effect on area flooding, and (4) it did not consider the possible effects caused by the widening of the drainage ditch adjacent to the property.

Furthermore, plaintiff contends that defendant's consideration of cumulative impacts was insufficient to meet the requirements of NEPA because the FONSI: (1) failed to address the direct and indirect impacts the project will have on the area and (2) did not mention the other current and future development projects surrounding the proposed site.

Analysis

Review of an agency's FONSI, is conducted under an "arbitrary and capricious standard." Sabine River Authority v. U.S. Dep't of Interior, 951 F.2d 669, 677-78 [22 ELR 20633] (5th Cir. 1992). Furthermore, because NEPA is purely a procedural statute, courts are not permitted to critique an agency's substantive decisions or to second guess the extent or quality of its decisionmaking process. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 [19 ELR 20743 (U.S. 1989)] (holding that "Although these procedures are almost certain to affect the agency's substantive decision, it is now well settled that NEPA itself does not mandate particular process results, but simply prescribed the necessary process."). When presented with conflicting evidence, then, the "agency and not the reviewing court has the discretion to" determine which evidence will prevail. Sabine River at 678.

Therefore, a FONSI may be set aside only when: (1) the evidence before the court demonstrates that, contrary to the FONSI, the project may have a significant impact on the human environment or (2) the agency's review process was flawed in such a manner that it cannot yet be said whether the project may have a significant impact. Fritiofson at 1238. As noted above, in reviewing an EA, a court must employ a highly deferential standard of review and uphold agency action if the agency has considered the relevant factors and articulated a rational connection between the facts and the choice made. Sabine River, 951 F.2d at 678.

It is with those jurisprudential limitations that the Court turns to the merits of the case at bar. Plaintiff has challenged the adequacy of the Corps' consideration of: (1) direct impacts (flooding) and (2) cumulative effects of the proposed project and contends that its conclusion, that neither would have a significant effect on the surrounding environment, was arbitrary and capricious and warrants the issuance of a preliminary injunction. The Court disagrees.

A cursory review of the EA in this case reveals that the Corps considered, through several studies and public and agency comment: (1) direct and indirect effects of the proposed development, (2) cumulative effects of the project, (3) alternatives to the proposed development site, and (4) mitigating measures that will decrease any negative effects prompted by the project. Specifically, the Court finds that the Corps' consideration of direct impacts and conclusion that the project will not significantly increase flooding was not arbitrary and capricious. (Administrative Record at 362). As noted above, Stirling employed Duplantis Engineering to study all effects this project may have on flooding and to develop a thorough drainage plan. That plan was subsequently approved by the City of Slidell as exceeding the city's requirements for reduction of storm water runoff that new construction projects must attain. The fact that the Corps did not conduct its own study on potential flood effects caused by the project does not impress the Court. The report was comprehensive and conclusive and this Court will not substitute its judgment for that of the Corps.

Furthermore, among all comments made during the JPN period, none of the federal or state agencies voiced any concern over the potential for increased flooding in the area. The EA also mandates that, for extra precaution, defendant mitigate any increase in flooding by constructing a detention pond on the project site. Thus, the Court finds that the Corps' consideration of direct effects caused by the project was adequate and not arbitrary and capricious.

Similarly, the Court finds that the Corps' review of cumulative effects was not arbitrary or capricious. In fact, the EA reflects that the Corps considered the cumulative effect of this and other projects on natural drainage and flood plain functions, local habitats and wildlife in the area, automobile emissions and light pollution, water temperature of the runoff, soil erosion, and local economics. (Administrative Record at 386-87). The Corps concluded that in none of these areas would the proposed project cause significant damage. Furthermore, the Corps stressed that a portion of the economic benefits from this project "is expected to provide municipal funds necessary to improve drainage and allevetaite existing flooding problems." (Administrative Record at 387). Again, plaintiff's disagreement with the Corps' conclusion that the cumulative effects of the project will be insignificant is no reason for this Court to interpose its judgment on this substantive issue.

In order for plaintiff to prevail on its Motion for Preliminary Injunction, it must establish: (1) substantial likelihood of success on the merits, (2) substantial threat that plaintiff will suffer irreparable injury if the injunction is not granted, (3) that the threatened injury outweighs the threatened harm to the defendant, and (4) that granting the preliminary injunction will not deserve the public interest. Justin Industries v. Choctaw Securities, L.P., 920 F.2d 262 (5th Cir. 1990). In this case, plaintiff has failed to meet those requirements. First, because the Court finds that the Corps' FONSI was not arbitrary and capricious, it is unlikely that plaintiff would succeed on the merits of the case at trial. Furthermore, as the Corps has concluded that there is no significant chance of increased flooding as a result of the project, there is no threat of irreparable injury to plaintiff. Finally, the Court holds that a preliminary injunction would not be in the best interest of the public. Accordingly.

IT IS ORDERED that Plaintiff's Motion for Preliminary Injunction and Motion for Permanent Injunction consolidated by the Court pursuant to Rule 65 are is [sic] DENIED.

1. Stirling employed Duplantis Engineering to study potential flooding problems caused by the project and to develop a report detailing its conclusions. (Administrative Record at 115-271).