Louisiana Wildlife Federation, Inc. v. York

• Citation: 761 F.2d 1044
• Decision Date: 31 May 1985
• Docket Number: No. 84-4699,84-4699
• Parties: , 15 Envtl. L. Rep. 20,614 LOUISIANA WILDLIFE FEDERATION, INC., et al., Plaintiffs-Appellants, v. Dennis J. YORK, Colonel, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1044

761 F.2d 1044

22 ERC 2009, 15 Envtl. L. Rep. 20,614

LOUISIANA WILDLIFE FEDERATION, INC., et al., Plaintiffs-Appellants, v. Dennis J. YORK, Colonel, et al., Defendants-Appellees.

No. 84-4699.

United States Court of Appeals, Fifth Circuit.

May 31, 1985.

James T.B. Tripp, New York City, Osborne, McComiskey & Richardson-Harp, Michael Osborne, New Orleans, La., Jerry Jackson, Washington, D.C., for plaintiffs-appellants.

Cook, Yancey, King & Galloway, F. Drake Lee, Jr., Shreveport, La., for Tensas Delta, et al.

Milling, Benson, Woodward, Hillyer, Pierson & Miller, Joseph E. LeBlanc, Jr., Stephen C. Carleton, New Orleans, La., for Westbank Planting.

F. Henry Habicht, II, Asst. Atty. Gen., Land & Nat. Resources Div., U.S. Dept. of Justice, Jacques B. Gelin, David C. Shilton, Washington, D.C., for federal defendants.

Ledoux R. Provosty, Jr., Alexandria, La., for other interested parties.

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

Before GOLDBERG, RUBIN, and HILL, Circuit Judges.

PER CURIAM:

Six environmental organizations object to the issuance by the U.S. Army Corps of Engineers of six individual permits allowing private landowners to clear and convert to agriculture approximately 5200 acres of bottomland hardwood wetlands. They also oppose the construction of the Sicily Island Area Levee Project (the Project), a federal flood control project to abate backwater flooding in a 75,000 acre area of Catahoula Parish, Louisiana, without an additional Environmental Impact Statement (EIS) to supplement the Corps' 1981 EIS. As to the six individual permits, we agree with the district court that the Corps properly followed both the National Environmental Policy Act (NEPA), and the Environmental Protection Agency's regulatory guidelines in making its determination. As to the construction of the Project, however, we hold that the Corps failed to give adequate consideration to the question of whether the 1981 EIS must be revised in light of our decision in Avoyelles III. ¹ Consequently, we vacate that part of the district court's opinion which dealt with this issue and remand to the district court for the purposes of requiring the Corps to perform an adequate analysis of whether a supplemental EIS is required.

The district court opinion efficiently distilled a voluminous record and described in detail both the nature of the Sicily Island Project and the physical characteristics of the six tracts affected by the permit applications. ² We, therefore, do not attempt to repeat the factual background of this case.

I.

The six permits granted by the Corps authorize the agricultural conversion of 5200 acres of wetlands. For environmental protection purposes, such wetlands are denominated "special aquatic sites." ³ Both the Environmental Protection Agency's Guidelines and the Corps of Engineers' regulations treat all special aquatic sites as worthy of extra protection, and state as "[t]he guiding principle ... that degradation or destruction of special sites may represent an irreversible loss of valuable aquatic resources." ⁴

Such heightened solicitude for wetlands is manifest in the regulations stating the considerations that must be taken into account when evaluating a proposed alteration to wetlands acreage. When a discharge of dredged or fill material is proposed, the Corps' Guidelines prohibit issuance of a permit if there is a "practicable alternative that would have less adverse impact on the aquatic ecosystem...." ⁵ A "practicable alternative," in turn, is defined as one that is, "available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes." ⁶ With respect to wetlands, however, the Guidelines specify:

[w]here the activity associated with a discharge which is proposed for a special aquatic site ... does not require access or proximity to or siting within the special aquatic site in question to fulfill the basic purpose (i.e. is not 'water dependent'), practicable alternatives that do not involve special aquatic sites are presumed to be available, unless clearly demonstrated otherwise. ⁷

"Thus, the guidelines couple a general presumption against all discharges into aquatic ecosystems with a specific presumption that practicable alternatives to the fill of wetlands exist." ⁸

In each of the six permit-application proceedings, the Corps characterized the applicant's basic purpose for the project as being, "to increase soybean production or to increase net return on assets owned by the company." ⁹ It is undisputed that soybean production is a non-water dependent activity. As shown above, this fact "necessitate[s] a more persuasive showing than otherwise concerning the lack of alternatives." ¹⁰

The environmental protection organizations argue on appeal that the applicants failed to make the required showing, and that the Corps erroneously granted them permits by interpreting "practicable alternatives" to mean "profit-maximizing alternatives." In addition, they contend that the Corps erred in viewing the alternatives with the applicants' objectives in mind instead of with an eye towards environmental maintenance. Both arguments must be rejected.

The first contention is simply not borne out by the record. There is nothing in the Corps' reports to show that profit-maximization was a consideration, let alone the primary factor in the alternatives analysis. ¹¹ The Corps did view the economic feasibility of alternatives, a permissible criterion under both the Environmental Protection Agency's Guidelines and the stated objectives of the permit applicants. However, in granting several of the applications, the alternative selected by the Corps did not allow the applicant to clear the entire tract (the profit-maximizing position) as it had originally requested. Instead, the Corps carefully limited the clearing allowed under the permits so as to forbid land clearance below certain elevations, require maintenance of uncleared buffer zones on each side of streams traversing the tracts, require turnrows to be seeded and maintained in suitable grass, and mandate the application of the Best Management Practices required by the Louisiana Department of Natural Resources. ¹² The corps thus chose alternatives that reduced both the applicants' profit and the economic efficiency of their proposed operations in order to preserve other environmental values.

The environmental protection organizations' second contention, that the alternatives may not be viewed with the applicant's objectives in mind, is not substantiated by either case law or the applicable regulations. As the district court recognized, the Preamble to the Guidelines states, "... [w]e consider implicit that, to be practicable, an alternative must be capable of achieving the best purpose of the proposed activity." ¹³ In turn, the text of the Guidelines provides that an alternative is practicable if it is available and capable of being done after taking into account costs, existing technology and logistics in light of the overall project purposes. ¹⁴ Under these Guidelines, therefore, not only is it permissible for the Corps to consider the applicant's objective; the Corps has a duty to take into account the objectives of the applicant's project. ¹⁵ Indeed, it would be bizarre if the Corps were to ignore the purpose for which the applicant seeks a permit and to substitute a purpose it deems more suitable.

The case law, although sparse, is in accord with our conclusion. In Hough v. Marsh, supra, residents of Edgartown, Massachusetts challenged a Corps permit authorizing the filling of a coastal tract to construct two private homes and a tennis court. The District Engineer had found that the project was not "water dependent," and undertook the requisite examination to discover the existence of "practicable alternatives." The Engineer defined the basic purpose of the project as "providing two homes and a tennis court." ¹⁶ Although the district court remanded for the landowners to demonstrate more clearly that no practicable alternatives to the proposed fill existed, the court did not question the Engineer's formulation of the project's objective, and did not suggest that the alternatives were not considered from the proper perspective. ¹⁷

The district court's findings that the Corps properly analyzed all six permit applications and correctly decided to grant permission to clear the tracts for agricultural use is amply supported by the record. Nothing in it convinces us that the Corps' actions were arbitrary, capricious, or otherwise not in accordance with law, the sole standards by which we review such actions. ¹⁸

II.

The Sicily Island Levee Project is a federally funded agricultural flood control and drainage plan designed to reduce the frequency and duration of backwater flooding throughout the 75,000 acre project area by the use of backwater levees and other drainage works.

The Corps' final EIS on the Project was submitted in 1981. The environmental protection organizations argue that the Environmental Protection Agency failed to perform a mandatory duty imposed by the Clean Air Act ¹⁹ to review and comment on this final EIS. The district court did not address this claim in its opinion, but it was asserted in the plaintiffs' amended complaint, and is properly before us. ²⁰

The EPA did comment on a 1978 draft EIS, the final form of which was released in 1979. The environmental protection organizations do not challenge the sufficiency of this EIS, nor do they contend that the Environmental Protection Agency's comments were inadequate or did not fulfill their statutory purpose. Instead, they assert that the Agency should have reviewed and commented on the 1981 revised EIS, which included data concerning the establishment of the Tensas National Wildlife Refuge. The 1981 EIS specifically adopted the prior EIS statement of the...