Creppel v. U.S. Army Corps of Engineers

• Citation: 670 F.2d 564
• Decision Date: 17 March 1982
• Docket Number: No. 80-3743,80-3743
• Parties: Jacques J. CREPPEL, et al., Plaintiffs-Appellants, v. The UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 564

670 F.2d 564

17 ERC 1320

Jacques J. CREPPEL, et al., Plaintiffs-Appellants, v. The UNITED STATES ARMY CORPS OF ENGINEERS, et al.,

Defendants-Appellees.

No. 80-3743.

United States Court of Appeals, Fifth Circuit.

March 17, 1982.

Harold L. Molaison, Gretna, La., for H. Molaison, L. Molaison, Barry Samuel, Bernard Samuel and M. Samuel.

Joseph E. LeBlanc, Jr., New Orleans, La., for J. Creppel, K. Knight, K. Carter, F. Creppel, D. Morrow, R. Pitre, W. Pitre, I. Goldman, B. Goldman, W. Mosby, B. Euganks and R. Fleming.

Bruce M. Chadwick, Washington, D.C., for Nat. Wildlife, amicus.

A. Donald Mileur, Appellate Section, Land & Natural Resources Division, James W. Moorman, Anne S. Almy, Dept. of Justice, Washington, D.C., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before BROWN, COLEMAN and RUBIN, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

The owners of some of the land that would be benefitted by completion of a small flood control project, approved eighteen years ago, contest the validity of a Corps of Engineers directive that would modify the project so as to eliminate the pumping station that would drain their land. The district court found that the official directive was neither arbitrary nor capricious, its issuance was within the discretion permitted by the controlling statute, and rendered summary judgment in favor of the United States and against the landowners, dismissing their suit. Creppel v. United States Army Corps of Eng'rs, 500 F.Supp. 1108 (E.D.La.1980). While we agree that the order was not arbitrary, we conclude that it was issued without satisfying the statutory requirement that local assurances be obtained to avoid future cost to the federal government, and we, therefore, reverse the summary judgment and remand for further proceedings.

I.

Congress has authorized flood control projects if the benefits that accrue exceed each project's estimated cost and if the lives and social security of people would be adversely affected were the project not undertaken. 33 U.S.C. § 701a (1976). At the time this project was begun, the Secretary of the Army was authorized to allot $1,000,000 for a flood control project when in the opinion of the Chief of Engineers such work was advisable. 33 U.S.C. § 701s (1970) (amended 1976). Congressional approval for such an undertaking, commonly called a small flood control project, is not required. Id. Before appropriated money may be expended, however, states or local political subdivisions must give assurances, satisfactory to the Secretary of the Army, that all easements necessary for the work will be provided, that the United States will be held harmless from damages due to the work undertaken, and that local authorities will "maintain and operate all works after completion in accordance with regulations prescribed by the Secretary of the Army." 33 U.S.C. § 701c (1976). The obvious reason to require the assurance that local government will defray operating expenses is to ensure that the federal expenditure is limited to the initial cost and the project does not impose a continuing burden on the federal fisc.

The issues in this case cannot be comprehended without reviewing the twenty-one year history of the project. As early as 1961, a Senate resolution suggested investigation of the possibility of this project. The House Committee on Public Works adopted a resolution in 1962 calling for a study of the proposed land improvement. In 1963, the study was completed ¹ and a small flood control project, the Harvey Canal-Bayou Barataria Levee Project, was proposed for Jefferson Parish, Louisiana. The project was approved by the Corps in 1964, federal funding to be "dependent upon the availability of funds from future appropriations as well as local actions toward providing the required local cooperation."

The parochial authorities furnished the Chief of Engineers with the requisite assurances of local cooperation in 1967. ² These assurances included commitments to construct a pumping station and, after completion, to maintain and operate "all works" in accordance with regulations of the Secretary of the Army. This would, of course, include maintenance of the levees as well as maintenance and operation of the pumping station. Jefferson Parish specifically agreed in a Supplemental Act of Assurances executed in 1967 to bear any costs in excess of the $1,000,000 that the Secretary was authorized to allot towards construction of the project. To provide the funds needed for carrying out its assurances, Jefferson Parish and its Consolidated Drainage District No. 1 passed a $3,600,000 drainage bond issue in April 1967. Before project construction was begun, an Environmental Impact Statement was prepared and filed.

The project, designed to provide flood protection and hence increased land utilization for 11,700 acres, was originally planned to involve federal expenditures of $492,000, and was to be constructed in two phases. The upper 8,000 acre portion of the project area had been leveed and drained to some extent in 1962 by the Consolidated Drainage District. The lower 3,700 acres of the project area were unleveed and undrained prior to federal involvement.

To execute Phase I of the project, new levees were built along an eleven-mile segment of the west bank of the Harvey Canal and Bayou Barataria and existing levees were improved, enclosing the 8,000 acres already protected to some extent by levees and the unprotected 3,700 acres to the south. Contrary to the original plan, which had called for the closing of two navigable water bodies, Bayou aux Carpes and Bayou des Familles, during Phase II, Bayou des Familles was partially closed during Phase I in June 1973, and Phase I was completed in that year. During this phase, the cost of the project exceeded the original estimate, and all of the federal funds that could be authorized for the entire project were spent. The local governmental units had spent so much that eighty percent of the total project cost had been expended.

It was necessary to wait at least two years after completing the construction on Phase I levees before beginning Phase II because the newly built levees would settle. Phase II, which was to be carried out entirely by Jefferson Parish, included adding additional material to the levees to restore them to a six foot elevation, ³ closing the gaps that had been left in the levee at a pipeline crossing and at Bayou des Familles, which had been partially closed, closing Bayou aux Carpes, and constructing a pumping station at Bayou aux Carpes to drain the 3,700 acres of swamp and marshland behind the new levees.

After Phase I had been started, Congress adopted the Federal Water Pollution Control Act Amendments of 1972, Pub.L.No.92-500, 86 Stat. 884 (effective Oct. 18, 1972), as an amendment to the Federal Water Pollution Control Act, often referred to as the Clean Water Act. Section 404 of the Clean Water Act, now codified at 33 U.S.C. § 1344, ⁴ requires a permit from the Secretary of the Army for the discharge of dredged or fill materials into navigable waters. The Secretary, who may act through the Chief of Engineers, ⁵ is directed to apply guidelines developed by the Environmental Protection Agency Administrator, in conjunction with the Secretary, in issuing such permits. Id. § 1344(b). The EPA Administrator is authorized to prohibit a permit whenever he determines "that the discharge of such materials into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas." Id. § 1344(c). Federal activities are subject to the permit requirement. Id. § 1323(a). In July 1974, the Corps of Engineers adopted regulations stating the procedures it would follow to conform its programs to the requirements of the Clean Water Act. 33 C.F.R. § 209.145, 39 Fed.Reg. 26,635 (July 22, 1974). ⁶

Phase II construction began in mid-1974. ⁷ On July 18, 1974 (before the publication of the final regulations), the bids to close Bayou aux Carpes were opened for Parish consideration. The closure was begun on August 27 and completed by October 31, 1974. ⁸ On September 5, 1974, the bids to complete the pumping station were opened and the contract was awarded shortly thereafter. The contractor had purchased supplies but had not yet begun work when, in November 1974, the Corps notified Jefferson Parish that Section 404 of the Clean Water Act, 33 U.S.C. § 1344, was applicable to the project. The Corps requested that the Parish cease all Phase II construction until the Corps had held a public hearing and conducted the public interest review required by the implementing regulations adopted pursuant to the Act.

All Phase II work stopped and none has since been resumed. At the time of the work stoppage, major portions of the construction work called for in the original project plan for Phase II had not been completed, including the lifting and shaping of the levees to bring them to required project height, and construction of the pumping station at Bayou aux Carpes. The levee-raising work would require the discharge of some material into the bayous, which are navigable waters.

The regulations state that the determination to issue a permit for the discharge of materials will be made in accordance with the EPA guidelines issued pursuant to 33 U.S.C. § 1344(b), ⁹ and note the authority of the EPA Administrator to prohibit discharge in certain areas under 33 U.S.C. § 404(c); 33 C.F.R. § 209.145(b)(1). The District Engineer is required, inter alia, to issue a public notice of the project, consider all comments received, including those from other federal agencies, and conduct a public hearing if one is requested by any interested party or if he finds one necessary for proper evaluation of the proposed project. 33 C.F.R. § 209.145(f)(1).

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