Louisiana Wildlife Federation v. York

Decision Date20 September 1984
Docket NumberCiv. A. No. 83-1885.
Citation603 F. Supp. 518
PartiesLOUISIANA WILDLIFE FEDERATION, INC., Rapides Wildlife Assn., Environmental Defense Fund, Inc., National Wildlife Federation, Orleans Audubon Society (J.M. Graves and Graves, Inc., Intervenors) v. Colonel Dennis J. YORK, John O. Marsh, Jr., Tensas Delta Land Company, Harold Patten, Dennis Boyte, A.L. Evans, J.D. Alexander, Westbank Planting Company, U.S. Environmental Protection Agency and U.S. Department of the Interior.
CourtU.S. District Court — Western District of Louisiana

James T.B. Tripp, New York City, Michael Osborne, New Orleans, La., for plaintiffs.

Ledoux R. Provosty, Jr., Alexandria, La., for intervenors J.M. Graves & Graves, Inc.

Cook, Yancey, King & Galloway, Sidney E. Cook, Shreveport, La., for Tensas Delta Land Co., Dennis Boyte, Harold A. Patten and A.L. Evans.

Charles A. Collins, Vice-President, Westbank Planting Co., Greenville, Miss., Milling, Benson, Woodward, Hillyer, Pierson & Miller, Joseph E. LeBlanc, Jr. and M. Taylor Darden, New Orleans, La., for Westbank Planting Co.

Henry H. Black, Asst. Dist. Counsel, U.S. Army Corps of Engineers, Vicksburg, Miss., Lawrence Moon, Asst. U.S. Atty., Lafayette, La., James M. Spears and Elizabeth Stein, Dept. of Justice, Land & Natural Resources Div., Washington, D.C., F. Henry Habicht, II, Asst. Atty. Gen., Land

and Natural Resources Div., Hubert M. Crean, Sp. Litigation Counsel, U.S. Dept. of Justice, Washington, D.C., for federal defendants.

EDWIN F. HUNTER, Jr., Senior District Judge.

In this action, plaintiffs challenge the adequacy of federal defendants' environmental review of six permit applications to clear and convert to agriculture some 5,000 acres of bottomland hardwood wetlands and the Sicily Island Levee Project, a federally funded agricultural flood protection project. The action is brought under the National Environmental Policy Act (NEPA), 42 U.S.C. Section 4332(2)(C), Section 404 of the Clean Water Act, 33 U.S.C. Section 1344, the Fish and Wildlife Coordination Act, 16 U.S.C. Section 661 et seq., the Administrative Procedure Act, 5 U.S.C. Sections 701-706, Section 309 of the Clean Air Act, 42 U.S.C. Section 7609 and applicable regulations.

The Sicily Island Levee project, for which Army defendants prepared a draft and final Environmental Impact Statement (FEIS) dated September, 1981, is designed to abate backwater flooding from the Black, Ouachita, Red and Mississippi Rivers in a 75,000 acre area in East Catahoula Parish. According to the FEIS, of the 75,000 acres, bottomland hardwoods make up some 21,100 acres. Of these 21,100, 3,955 are found in four of the permit tracts.

Plaintiffs filed their challenges to the clearing permits and the Sicily Island Levee Project on August 3, 1983; Judge Scott issued a temporary order restraining the clearing of the six privately owned tracts.1 Following the September 1983 decision of the Fifth Circuit in Avoyelles Sportsmen's League v. Marsh (Avoyelles III), 715 F.2d 897 (5th Cir.1983), the parties stipulated that the records be remanded to the Corps for further evaluation in light of that decision.

On or about May 21, 1984, the Corps published revised Environmental Assessments, Findings of No Significant Impact, Findings of Fact and Section 404(b)(1) Evaluation Reports. Simultaneously, the Corps announced that it was lifting the suspensions on each of the six permits.

On June 12, 1984, plaintiff Environmental Defense Fund, Inc., mailed notice to William D. Ruskelshaus, Administrator of the Environmental Protection Agency (EPA), of its intention to file suit under Section 304 of the Clean Air Act and Section 505 of the Clean Water Act for his alleged failure to perform nondiscretionary duties under those Acts in connection with the six permits and accompanying environmental assessments as well. Plaintiffs also alleged that the EPA had failed to perform its duty under the Clean Water Act (CWA) to uphold the geographic and activities jurisdiction of the Section 404 program with respect to the challenged permits.

DESCRIPTION OF TRACTS AND SICILY ISLAND LEVEE PROJECT

In order to convey a basic understanding of the location and activities concerning the six privately owned tracts and the Sicily Island Project, a discussion of the facts will be divided into a consideration of three basic areas: (1) the Sicily Island Levee Project; (2) those privately owned tracts located within the perimeters of the SILP area (Tensas, Patten, Boyle and Evans tracts); and (3) those privately owned tracts situated outside the SILP area (Westbank and Alexander tracts).

Sicily Island Area Levee Project

The Sicily Island Area Levee Project consists of over 75,000 acres of land located in northern Catahoula Parish and the southeast corner of Franklin Parish. It is bounded on the west by the Ouachita River, on the south by the Tensas River, on the east by the Tensas River and Bayou Macon, and on the north by high ground.2 The project is designed, among other things, to obstruct the natural backwater flooding regime which now exists by construction of backwater levees, drainage channels, drainage structures and pumps, and thus to reduce the frequency and duration of backwater flooding of some 75,000 acres in Catahoula Parish. Included in this protected area are 3,910 acres of wetlands which are the subject of the Tensas, Patten, Boyle and Evans permits. The Corps of Engineers lists as objectives of the project the reduction of flood damage to buildings in the area and the more efficient utilization of agricultural lands.3

While many long-term beneficial effects will stem from the project, the Corps candidly admits that the project will result in some adverse environmental effects.4 Construction of the proposed project will further reduce forest, fish, and wildlife resources in the project area. Construction of the project will result in a total loss of 428 acres of bottom-land hardwood forest, including about 37 acres of forested wetlands. The project will reduce winter flooding on lands that are utilized by resident and migratory waterfowl about 84 percent. Natural spawning and nursery areas that are utilized by a variety of species of fish will be reduced by the project.5

In mitigation of the environmental effects, the Corps made two proposals. First, the Corps recommended the purchase and development of 3,000 acres of bottom land forest to compensate fully for project-induced wildlife habitat losses. Subsequent to this recommendation, the United States Congress passed Public Law 96-285 to establish the Tensas National Wildlife Refuge.6 To date over 30,000 acres of land in the Tensas River Basin have been acquired as mitigation for, inter alia, the Sicily Island Project at a cost in excess of $50 million. Secondly, to compensate for all fishery losses, the Corps prepared the construction of water supply facilities, including the installation of gated water control structures in the dam near the confluence of the Ouachita River and Bayou Louis, thereby simulating the historical hydrolegic regime of the fishing areas.7

Tensas, Patten, Boyce and Evans Tracts

The Tensas Delta tract consists of 2,800 acres of wetlands located in Catahoula Parish. The tract is bounded on the east and south by Black Bayou and Bayou Louis and on the north and west by the hill line of the Sicily Island land form. The tract naturally draws into Black Bayou and Hawthorne Bayou.8 Of the 2,800 acres of the tract, Tensas Delta Land Company proposes to clear approximately 2,460 of the more elevated acres. The purpose of the clearing is to convert the area from cutover woodlands to agricultural production.

The area is subject to frequent flooding caused by backwater from the Mississippi and Red Rivers and headwater floods from the Ouachita and Tensas Rivers, as well as from intense rainfall within the drainage basin itself.9 Under existing conditions, the one year flood elevation is approximately 45.5 feet N.G.V.D., and at that elevation, approximately 440 acres of the tract would be inundated. The permit holder plans to clear only areas above 46 feet N.G.V.D. that are flooded once every two to four years under existing conditions. Woodlands below elevation 46 feet N.G.V.D. will remain for wildlife and fisheries' use and to provide vegetative buffer zones along the streams which border the property and the natural drains which traverse the property. The applicant also proposes to set aside 120 acres of adjoining forested lands near the north boundary for wildlife and fisheries' use.10

The Patten, Boyle and Evans permit applications sought permission to clear 391 acres,11 366 acres,12 and 398 acres,13 respectively, of wetlands for agricultural use. These tracts are in the vicinity of the Tensas Delta tract, and elevations range from a high of 50 to 55 feet N.G.V.D. on each tract to a low of less than 45 feet N.G.V.D. The one year flood frequency elevation is 45.5 feet N.G.V.D.14

The permits did not issue as applied for; instead, restrictive conditions were imposed by the Corps upon each permit. The permits (1) forbid land clearing below elevation 46 feet N.G.V.D. (i.e., at a base level higher than the one year flood frequency elevation of 45.5); (2) require the maintenance of uncleared buffer zones at least 150 feet wide on each side of each water traversing the tracts; (3) require turnrows to be seeded and maintained in Bermuda, rye, or a suitable grass to aid in filtration of sediments; and (4) require the application of Best Management Practices required by the Louisiana Department of Natural Resources as a condition for Water Quality Certification.15

The REAs for the Patten, Boyle and Evans tracts demonstrate that (as in the case of the Tensas Delta tract) on each tract those wetlands most closely coupled with, and of the greatest service to, the surrounding aquatic environment will be preserved. This preserved acreage will provide habitat for terrestrial...

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