Creppel v. US Army Corps of Engineers

• Decision Date: 08 August 1980
• Docket Number: Civ. A. No. 77-25.
• Citation: 500 F. Supp. 1108
• Court: U.S. District Court — Eastern District of Louisiana
• Parties: Jacques J. CREPPEL et al. v. The UNITED STATES ARMY CORPS OF ENGINEERS et al.

500 F. Supp. 1108

Jacques J. CREPPEL et al. v. The UNITED STATES ARMY CORPS OF ENGINEERS et al.

Civ. A. No. 77-25.

United States District Court, E. D. Louisiana, New Orleans Division.

August 8, 1980.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Joseph E. LeBlanc, Jr., Richard A. Fraser, III, Milling, Benson, Woodward, Hillyer, Pierson & Miller, New Orleans, La., for plaintiffs.

Harold L. Molaison, Gretna, La., for plaintiffs, Molaison and Samuel.

Robert L. Boese, Asst. U. S. Atty., New Orleans, La., for the United States.

Bruce M. Chadwick, Arnold & Porter, Washington, D.C., Steven Lemoine, New Orleans, La., for Wildlife Federations.

REASONS FOR RULING

MITCHELL, District Judge.

The parties herein have filed cross motions for summary judgment. Plaintiff landowners are seeking to have the Court set aside the agency order of Brigadier General Drake Wilson of November 16, 1976 as invalid and ordering the defendant United States Army Corps of Engineers to authorize the immediate construction of the Harvey Canal-Bayou Barataria Project as originally proposed in 1963. The federal defendants are seeking to have the Court uphold the Wilson order. An amicus curiae brief was filed by several conservation, environmental, recreational and civic organizations supporting the affirmation of the Wilson order.

The Harvey Canal-Bayou Barataria Levee Project (hereinafter the "Project") was approved as a small flood control project pursuant to Section 205 of the Flood Control Act of 1948, as amended, Public Law 87-874, 33 U.S.C. § 701s, by the United States Army Corps of Engineers (hereinafter the "Corps") on January 22, 1964. The Corps is authorized, under the small flood control statute, to spend up to one million dollars ($1,000,000) on authorized works. All costs above that amount are required to be assumed and guaranteed by the local governing body, Jefferson Parish (hereinafter the "Parish").

This Project involved an 11,700-acre tract located near the headwaters of the Barataria Bay system. This area was unleveed and undrained prior to the initiation of the Project. Part of this area is a 3,700-acre tract in which the plaintiffs have an interest and which is predominately a freshwater system consisting mainly of swamp and some marsh. This 3,700-acre tract is the area which is at issue herein. The Corps found the tract was subject to flooding from normal high, storm and hurricane tides of the Gulf of Mexico through Barataria Bay, Barataria Bay Waterway and the Gulf Intracoastal Waterway. See "Review of Reports, Harvey Canal-Bayou Barataria Levee, La., Sept. 20, 1963."

The Project was planned to be constructed in two phases. Phase I entailed excavation of material from the bottom of the Harvey Canal and Bayou Barataria, and placement of the material along the bank to form the levee system. Phase I construction was begun on September 22, 1971 and was completed on November 24, 1973. The authorized federal expenditure of one million dollars was exhausted in the construction of Phase I.

Phase II of the Project consisted of adding additional embankment material where needed and of shaping the first lift embankment material to form the final levee section. It also provided for the closure of Bayou Aux Carpes, Bayou Des Families and the Natural Gas Pipeline Canal and for the construction of a pumping station at Bayou Aux Carpes which would drain the swamp and marsh land located behind the levees.

It was initially contemplated that the Project would provide flood protection and land reclamation benefits in the area. The land reclamation would be achieved through the drainage of wetlands by the Bayou Aux Carpes pumping station.

The Corps was required to obtain the following local assurances of cooperation from Jefferson Parish prior to commencement of the Project:

(a) Provide without cost to the United States all land, easements and rights-of-way necessary for construction of the Project, including necessary modifications and/or relocation of existing facilities;

(b) Hold and save the United States free from damages due to construction works;

(c) Construct an additional pumping station with an initial capacity of not less than 154 c.f.s. as provided in the plan of improvement and future extensions to pumping capacities as may be necessary for development of the area; and

(d) Maintain and operate all works after completion in accordance with the regulations prescribed by the Secretary of the Army.

Jefferson Parish executed the formal act of assurances, furnishing to the Corps the required agreements, on July 20, 1967. The Parish obtained the necessary rights-of-way and servitudes for the purpose of constructing, maintaining and operating the Project.

An Environmental Impact Statement was prepared and filed with the Council on Environmental Quality on November 14, 1970.

During Phase I construction Congress passed the Federal Water Pollution Control Act Amendments of 1972, Section 301 of which provides that the discharge of dredged or fill material into navigable waterways without obtaining a permit under Section 404 of the Act is unlawful. The Corps promulgated regulations implementing Section 404 on July 22, 1974.

Commencement of Phase II of the Project was authorized in March, 1974. The closure of Bayou Aux Carpes was completed in July, 1974 and on August 10, 1974 the Parish let a contract for the construction of the pumping station to Southbend Contractors, Inc. However, the Corps requested that the Parish cease further construction to allow the Corps to conduct a Section 404 review of the remaining "fill" portions of the Project.

A public hearing was conducted by the Corps on January 7, 1975 to provide interested parties the opportunity to present their views on the remaining work to be done. It was the first Section 404 hearing conducted in the New Orleans area and both positive and negative comments were received. The parties owning land in the area supported the land reclamation aspects of the Project. Many environmental and civic groups opposed the construction of the pumping station since it would result in the destruction of the wetlands in the area.

Colonel E. R. Heiberg, the New Orleans District Engineer, conducted the hearing and issued a Statement of Findings (SOF) on March 26, 1975. He found the principal adverse environmental effects would occur with the closure of Bayou Aux Carpes and the construction of the pumping station which, in combination with the levee system, would result in the loss of the wetland fish and wildlife habitat within the Project area. Colonel Heiberg determined, however, that the comments made in opposition to the Project were directed to the Project as a whole rather than specifically to the dredge and fill work remaining to be done. He concluded that despite the adverse environmental effects, the total public interest would be served by the construction of the Project.

The Environmental Protection Agency (hereinafter "EPA"), in a letter dated April 25, 1975, objected to the Project as originally designed after reviewing the proposal and Heiberg's SOF. The EPA found that the permanent blockage of the bayous and the drainage of the interior would result in the irretrievable loss of valuable wetlands, having an unacceptable adverse impact on wildlife and recreational areas and would not be in the public interest. The EPA suggested that if a pumping station was required to augment natural drainage, it should be maintained so as to preserve the integrity of the wetlands. In light of the EPA objections the matter was forwarded to the Division Engineer for further evaluation and discussions. EPA continued to object to the destruction of the wetlands.

Brigadier General Kenneth McIntyre of the Corps wrote the EPA in October, 1975 stating his decision that it was in the public interest to have the project completed as originally authorized. He rejected the EPA's proposal that movable floodgates be substituted for the pumping station to preserve the wetlands because it would eliminate the land reclamation benefits. General McIntyre did recognize that "if the project was being formulated today (October, 1975) that an entirely different approach might be taken."

A group of scientists conducted a study of the area in March, 1976 for EPA and they found the 3,700-acre tract of wetlands to be "a valuable and viable parcel of swamp and marsh area." They continued to recommend the use of floodgates as opposed to a pumping station.

Despite these findings, on July 30, 1976, Colonel Early J. Rush, District Engineer, issued a Revised Statement of Findings reaffirming the previous SOF's. Brigadier General Drake Wilson wrote the Director of EPA in Washington, D. C. on August 27, 1976 advising her that he felt it was in the public interest to proceed with the Project as originally authorized. He stated he would direct Jefferson Parish to resume construction within fifteen days, "unless, within that time, we hear from you that you intend to invoke your authorities under Section 404(c)." The EPA wrote General Wilson on September 10, 1976 asking that the Corps take no action regarding the resumption of the project pending a further review of the matter.

General Wilson visited the Project site on October 7, 1976 along with Parish representatives, EPA staff members, property owners and environmentalists. Following that inspection Wilson issued a Revised SOF which adopted the alternative plan recommended by EPA. He determined that the flood control benefits could be achieved and the requirements of Section 404 satisfied if:

(a) the flood control dikes along Bayou Barataria were completed to their project design elevation and were maintained by Jefferson Parish;

(b) the earthen dikes closing Bayou Aux Carpes and Bayou Des Families were to be removed and replaced with movable floodgates to restore and maintain normal water flows; and

(c) the proposed pumping station is no longer required.

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