Environmental Defense Fund v. Alexander, EC 77-53

• Decision Date: 01 October 1980
• Docket Number: 77-54-K.,No. EC 77-53,EC 77-53
• Citation: 501 F. Supp. 742
• Parties: ENVIRONMENTAL DEFENSE FUND, INC., Committee for Leaving the Environment of America Natural, Glenn H. Clemmer, G. Randall Grace, and F. Glenn Liming, Plaintiffs, National Audubon Society, Birmingham Audubon Society, and the Alabama Conservancy, Intervening Plaintiffs, v. Clifford R. ALEXANDER, the United States Army Corps of Engineers, and Major General John Morris, Defendants, Tombigbee River Valley Water Management District, Tennessee-Tombigbee Waterway Development Authority, State of Alabama, and Tombigbee Valley Development Authority, Intervening Defendants. LOUISVILLE AND NASHVILLE RAILROAD, Plaintiff, National Audubon Society, Birmingham Audubon Society, and the Alabama Conservancy, Intervening Plaintiffs, v. Clifford R. ALEXANDER, the United States Army Corps of Engineers, and Major General John Morris, Defendants, Tombigbee River Valley Water Management District, Tennessee-Tombigbee Waterway Development Authority, State of Alabama, and Tombigbee Valley Development Authority, Intervening Defendants.
• Court: U.S. District Court — Northern District of Mississippi

501 F. Supp. 742

ENVIRONMENTAL DEFENSE FUND, INC., Committee for Leaving the Environment of America Natural, Glenn H. Clemmer, G. Randall Grace, and F. Glenn Liming, Plaintiffs, National Audubon Society, Birmingham Audubon Society, and the Alabama Conservancy, Intervening Plaintiffs, v. Clifford R. ALEXANDER, the United States Army Corps of Engineers, and Major General John Morris, Defendants, Tombigbee River Valley Water Management District, Tennessee-Tombigbee Waterway Development Authority, State of Alabama, and Tombigbee Valley Development Authority, Intervening Defendants.

LOUISVILLE AND NASHVILLE RAILROAD, Plaintiff, National Audubon Society, Birmingham Audubon Society, and the Alabama Conservancy, Intervening Plaintiffs, v. Clifford R. ALEXANDER, the United States Army Corps of Engineers, and Major General John Morris, Defendants, Tombigbee River Valley Water Management District, Tennessee-Tombigbee Waterway Development Authority, State of Alabama, and Tombigbee Valley Development Authority, Intervening Defendants.

Nos. EC 77-53, 77-54-K.

United States District Court, N. D. Mississippi, E. D.

October 1, 1980.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Jon T. Brown, Stephen E. Roady, Washington, D.C., Joseph V. Karaganis, Chicago, Ill., Joseph L. Lenihan, Louisville, Ky., James T. B. Tripp, New York City, William A. Butler, Stewart L. Udall, Washington, D.C., for plaintiff.

Lewis K. Wise, Lawrence Maloney, Edward Christenburg, Glenn Whitaker, Dept. of Justice, Washington, D.C., H. M. Ray, U. S. Atty., Oxford, Miss., Ralph E. Pogue, Aberdeen, Miss., for the District.

Hunter M. Gholson, Columbus, Miss., for the Authority.

William L. Robertson, Jr., Atlanta, Ga., Jane McIntire, Washington, D.C., Alfred P. Holmes, Jr., David H. Webb, Mobile Ala., for the Corps.

William J. Baxley, Atty. Gen., Jerry L. Weidler, William T. Stephens, Asst. Attys. Gen., Montgomery, Ala., for Alabama.

Roger D. Feldman, Washington, D.C., for non-party, A. T. Kearney, Inc.

MEMORANDUM OPINION

KEADY, Chief Judge.

This is another chapter in the saga of the ongoing controversy relating to the Tennessee-Tombigbee Waterway (TTW), a navigation project in Alabama and Mississippi which Congress authorized in 1946 and commenced funding in 1971.

On July 14, 1971, Environmental Defense Fund, Inc. (EDF), Committee for Leaving the Environment of America Natural (CLEAN) and James D. Williams brought a class action on behalf of all persons aggrieved or detrimentally affected by the project against the Secretary of the Army, Chief of Engineers and United States Corps of Engineers to enjoin construction of TTW. The district court on April 13, 1972, dismissed five of the six causes of action alleged in the complaint and ordered an evidentiary hearing on the cause of action based upon noncompliance with the National Environmental Policy Act of 1969 (NEPA). On August 4, 1972, the complaint was dismissed with prejudice. The district court, while declining to make a substantive review under NEPA, found that defendants had fully complied with NEPA's procedural requirements, EDF v. Corps of Engineers, 348 F.Supp. 916 (N.D.Miss.1972). On appeal, the Fifth Circuit affirmed, holding not only that NEPA's procedural requirements had been fully satisfied but also that substantive review by the courts was foreclosed since Congress, which had authorized TTW before NEPA became law and approved and funded its construction after it enacted NEPA, was the ultimate decisionmaker. EDF v. Corps of Engineers, 492 F.2d 1123 (5 Cir. 1974). Certiorari was not applied for.

On November 30, 1976, the present action was filed to enjoin the continued construction of the waterway. As before, plaintiffs are EDF, CLEAN and a plaintiff class of individuals aggrieved or detrimentally affected by TTW. Additional plaintiffs are Louisville & Nashville Railroad (L&N), Randall Grace, National Audubon Society, Birmingham Audubon Society and Alabama Conservancy. After extensive discovery, plaintiffs on January 30, 1978, filed an amended complaint which consisted of 15 counts.

In a lengthy evidentiary hearing on the first two counts, the district court held that plaintiffs' primary claim that defendants lacked statutory authorization to construct a channel 300' wide was barred by laches, and that other challenges to modifications of original project design were without merit. EDF v. Alexander, 467 F.Supp. 885 (N.D.Miss.1979), aff'd, 614 F.2d 474 (5 Cir. 1980), pet. for cert. filed, 49 USLW 3031 (Aug. 5, 1980).

Following status conference on May 30, 1980, the court dismissed Count XI upon motion of plaintiffs and scheduled the remaining 12 counts to be considered for disposition on cross-motions for summary judgment and defendants' alternative motion for judgment on the pleadings. The parties have submitted a plethora of exhibits and affidavits as well as voluminous briefs in support of their respective motions.

After due consideration, the court finds that plaintiffs are not entitled to prevail and their amended complaint is dismissed with prejudice, except in one particular as to Count XIV. Instead of treating the counts seriatim, the court has organized discussion of the remaining claims as follows: (1) NEPA issues, (2) benefit/cost computation, (3) local assurances, (4) fish and wildlife, (5) discharge of dredged material, and (6) failure to publish agency regulations.

I. NEPA ISSUES

In Counts VII, VIII, IX and X, plaintiffs challenge a variety of environmental and economic aspects of the project which they claim violate NEPA, 42 U.S.C. § 4321 et seq. These contentions may be summarized as follows:

(1) illegal segmentation of TTW into two parts, one a waterway between Pickwick Pool in Tennessee and Demopolis, Alabama, and the other a waterway between Demopolis and Mobile, and failure to prepare, circulate and file an Environmental Impact Statement (EIS) discussing the effects on both segments before continuing construction;

(2) failure to analyze and disclose project alternatives in the 1976 Economic Reanalysis Summary;

(3) failure to prepare a supplemental or revised EIS after making major changes in project design and subsequently identifying adverse environmental and economic impacts.

Defendants contend that plaintiffs, in attempting to raise charges of NEPA noncompliance, have failed to state claims upon which relief can be granted or that, since there is no genuine issue of material fact, defendants are entitled to summary judgment on all NEPA issues.

Of the many environmental challenges made by plaintiffs, the primary complaint is that the 1976 Economic Reanalysis Summary revealed for the first time that "TTW's fundamental purpose was to move goods from waters north of Pickwick, Tennessee, through Demopolis, Alabama, and down the river below Demopolis to Mobile," and it was then first disclosed that TTW would require work downstream from Demopolis to achieve maximum navigation benefits. According to plaintiffs, when Corps officials in 1975 discovered that 8-barge tows could not navigate south of Demopolis, they decided to divide the TTW project by treating the 300' waterway between Pickwick and Demopolis separately from the 200' waterway between Demopolis and Mobile, and to continue construction on the northern part while studying need for work on the southern part. It is urged that this procedure contravenes NEPA since an EIS on the entire project-Pickwick to Mobile-must be prepared, published and filed before work may continue north of Demopolis. No EIS on the TTW, so plaintiffs contend, has ever discussed and analyzed the impacts of the project upon the river south of Demopolis or upon the Port of Mobile.

In advancing this contention plaintiffs ignore the history of TTW, Black Warrior-Tombigbee River (BWT) and the Port of Mobile as separate congressionally-authorized navigation projects as well as the adjudication that defendants have fully complied with NEPA. This court has previously recounted TTW's history. The salient features are that TTW's original 1939 survey, as contained in House Document 269, reported that the "improvement desired is a navigable waterway of dimensions which would permit modern barge-line operation between the Tennessee and Tombigbee Rivers."¹ House Document 486, which was incorporated in the authorizing statute, Pub.L.No. 79-525, 79th Cong., 2d Sess., enacted July 24, 1946, discussed the "function of the canal and its connections as a through route between the Gulf of Mexico and the Ohio, upper Mississippi, Missouri, and Illinois Rivers."² As we have previously found, TTW was designed from its inception as

a navigational project for two-way barge traffic to connect the north-flowing Tennessee River with the south-flowing Tombigbee River so as to provide a continuous waterway from the Tennessee, upper Mississippi and Ohio Valleys to the tidewater Port of Mobile on the Gulf of Mexico. The territorial limits of the TTW, however, extended northward from Demopolis, Alabama, on the existing canalized BWT, a separate navigation project, upstream via the Tombigbee River, East Fork of the Tombigbee, Mackeys Creek, with a deep cut through the divide into Yellow Creek, then to the Pickwick Pool in the Tennessee River near the common boundary of the states of Tennessee, Alabama and Mississippi. The original overall project length—Demopolis to Pickwick Pool, corrected by cutoffs—was 260 miles.

467 F.Supp. at 890.

House Document 486 specifically discussed the relationship of the TTW with the connecting Tennessee River and the 200' wide Warrior-Tombigbee Waterway, also known as Black Warrior-Tombigbee.³ Plans for TTW were deferred for a number of years until the project's economics were completely reevaluated in June 1966. The original design of a 170' channel was then dropped "since that width would unduly restrict tow size and would not be comparable to the connecting channels in the Tennessee and Black Warrior-Tombigbee...