MO. COALITION FOR ENVIRONMENT v. Corps of Engineers

Decision Date08 January 1988
Docket NumberNo. 87-1397C(3).,87-1397C(3).
Citation678 F. Supp. 790
PartiesMISSOURI COALITION FOR the ENVIRONMENT, et al., Plaintiffs, v. CORPS OF ENGINEERS OF the UNITED STATES ARMY, et al., Defendants.
CourtU.S. District Court — Eastern District of Missouri

James J. Wildon, Richard C. Constance, David R. Bohm, City Counselors Office, City of St. Louis, and Lewis C. Green, Green Hennings and Henry, St. Louis, Mo., for plaintiffs.

Thomas M. Carney, Maxine I. Lipeles, Husch Eppenberger Donohue, Cornfeld & Jenkins, St. Louis, Mo., for defendants Sverdrup Corp., Roverport, Inc., Riverport Associates and St. Louis County.

Jean Anne Kingrey, Sp. Litigation Counsel, Dept. of Justice, Land and Natural

Resources Div., Washington, D.C., Joseph B. Moore, Asst. U.S. Atty., St. Louis, Mo., for defendants.

Jean Z. Matzeder, Norman R. Spero, U.S. Army Corps of Engineers, Kansas City, Mo., for defendants U.S. Army Corps of Engineers and other Federal defendants.

MEMORANDUM

HUNGATE, District Judge.

This matter is before the Court to determine the merits of plaintiffs' claim after a five-day trial before the Court sitting without a jury.

INTRODUCTORY SUMMARY OF CLAIMS

Plaintiffs filed a complaint against several private entities, federal officials, and the Corps of Engineers of the U.S. Army ("Corps") seeking declaratory and injunctive relief with respect to the process used in and the outcome of the Corps' re-evaluation of a permit originally issued by the Corps under § 404 of the Federal Water Pollution Control Act ("FWPCA"), 33 U.S. C. § 1344, to defendant Riverport Associates in May 1985. The original permit allowed certain activities, not expressly including nor prohibiting construction of a stadium, by the private entity defendants on part of the Missouri River Bottoms floodplains, including some wetlands, in St. Louis County, Missouri ("the Riverport area"). The original permit was modified on March 4, 1987. The Corps' re-evaluation at issue here resulted in a "Memorandum of Record," issued June 22, 1987, that essentially allows the construction of a domed stadium, and related parking facilities, in the Riverport area pursuant to the original permit — without the processing of a new application for a permit, and without suspension, modification, or revocation of the original permit. Plaintiffs allege that the Corps' re-evaluation involved violations of Sections 404 and 505 of the FWPCA, 33 U.S.C. §§ 1344 and 1365;1 the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. § 4321, et seq.; the Fish and Wildlife Coordination Act of 1934 ("FWCA"), as amended, 16 U.S.C. § 662; the Endangered Species Act ("ESA"), 16 U.S.C. § 1531, et seq.; the Clean Air Act ("CAA"), 42 U.S.C. § 7506(c); and the regulations promulgated pursuant to each Act. In particular, plaintiffs contend the Corps failed properly to evaluate traffic congestion and safety factors, air pollution factors, surface water run-off from the parking lots, regional economic impacts, and the cumulative impact of the purportedly piecemeal implementation of St. Louis County's plan to develop the Missouri Bottoms. Additionally, plaintiffs urge the Corps should have prepared an Environmental Impact Statement.

Defendants, including St. Louis County which intervened as a defendant, deny liability, and urge the Corps' re-evaluation was not either unreasonable or arbitrary and capricious.

The principal question presented here is whether or not the Corps acted arbitrarily, capriciously, or unreasonably concerning the environment in this cause. The answer is no.

Having carefully considered the pleadings, testimony, exhibits, stipulations, memoranda, and relevant record, the Court makes and enters the following findings of fact and conclusions of law.

Findings of Fact

1. Plaintiff Missouri Coalition for the Environment ("Coalition") is a corporation organized and existing under the Illinois not-for-profit corporation laws, with its principal office in Missouri.

2. Plaintiff The City of St. Louis is a municipal corporation within the Eastern District of Missouri organized and existing as a constitutional charter city pursuant to the Missouri Constitution.

3. Plaintiff League of Women Voters of St. Louis County is a corporation organized and existing under the general not-for-profit laws of the State of Missouri, maintaining its principal office in St. Louis County, Missouri.

4. Plaintiff The League of Women Voters of St. Louis is a corporation organized and existing under the general not-for-profit laws of the State of Missouri.

5. Plaintiff The Open Space Council for the St. Louis Region is a corporation organized and existing under the not-for-profit corporation laws of the State of Missouri, with its principal office in the City of St. Louis, Missouri.

6. Plaintiff Lee Streett is a resident, property owner, and taxpayer of St. Louis County, and a former member of the Board of Directors of plaintiff Coalition.

7. Plaintiff Martin E. Gardner, Jr., is a resident, property owner, and taxpayer of St. Louis County, and a former President of the Open Space Council.

8. Plaintiff Cornelius Alwood is a resident of St. Louis County, Missouri.

9. Plaintiff Donald F. Weiler resides in the City of Maryland Heights, Missouri, which is in St. Louis County.

10. Plaintiff Stanley J. Adams resides in the City of Bridgeton, Missouri, which is in St. Louis County.

11. Plaintiff Beverly J. Toner resides in Maryland Heights, Missouri. She is a property owner and taxpayer of St. Louis County.

12. Plaintiff Mark D. Conner is a resident, property owner, and taxpayer of the City of St. Louis, Missouri.

13. A. Defendant Corps is an agency of the United States and a branch of the United States Army.

B. Defendant John O. Marsh, Jr., is the duly appointed and acting Secretary of the Army.

C. Defendant Robert K. Dawson was in 1986 the duly appointed and acting Assistant Secretary of the Army for Civil Works.

D. Defendant Lt. Gen. E.R. Heiberg, III, is the duly appointed and acting Chief of Engineers of the Corps.

E. Defendant Robert M. Amrine was in 1985, 1986, and the first half of 1987, the duly appointed and acting District Engineer for the Corps, Kansas City District (hereinafter "district engineer"). Defendant John H. Atkinson, III, is his successor in that office.

These defendants are hereinafter sometimes collectively referred to as the "Corps defendants." In relevant part, the Corps defendants, pursuant to delegations of authority by Congress and by regulation, are charged with administration and enforcement of § 404 of the FWPCA, 33 U.S.C. § 1344, subject to the Guidelines of the United States Environmental Protection Agency.

14. Defendant Riverport, Inc., and defendant Sverdrup Corporation are corporations incorporated under the laws of the State of Missouri. Defendant Riverport Associates is a Missouri limited partnership. Defendant Riverport, Inc., is general partner thereof. These defendants will be referred to collectively as "Sverdrup" or "the Sverdrup defendants."

15. Defendant St. Louis County, Missouri, is a first class county operating under a charter form of government within the Eastern District of Missouri. This defendant now owns the property on which the proposed stadium will be built.

16. In the course of the trial, plaintiffs' standing was conceded.

ADMINISTRATIVE PROCEEDINGS CONCERNING ORIGINAL PERMIT

17. On October 25, 1983, the Corps received a permit application from Riverport Associates in connection with the development known as "Riverport."

18. The Riverport site comprises approximately 450 acres in western St. Louis County, Missouri, east of the Missouri River and south of I-70. This acreage contains wetlands and Missouri River floodplains commonly referred to as the Missouri Bottoms.

19. The Riverport development as originally planned was to include retail buildings, restaurants, entertainment facilities, office buildings, and industrial activities sharing a unified theme and plan.

20. The application stated that Sverdrup would be constructing a 4,100-foot-long levee designed to protect Riverport from a 500-year flood.

21. Because an 800-foot-long portion of the levee crossed some wetlands, the project required the Corps' approval prior to construction.

22. In relevant part, the aforementioned permit application was filed under Section 404 of the FWPCA (also referred to as the Clean Water Act of 1977), 33 U.S.C. § 1344, which requires a permit for the placement of fill in wetlands.

23. Upon review of the permit application, the Corps issued a public notice on January 20, 1984. The notice informed federal, state, and local agencies and the public of the Riverport permit application, and requested comments thereon.

24. Numerous federal, state, and local agencies, as well as private organizations and individuals, responded to the public notice.

25. The comments addressed a host of potential environmental, engineering, and planning concerns, including, without limitation, the following: wetlands, prime farmland, endangered species, flooding and floodplain management, alternatives, and cumulative impacts.

26. On June 25, 1984, the St. Louis County Council approved two ordinances rezoning the Riverport site for use as proposed. The zoning ordinances require Sverdrup to undertake a number of specific commitments, including those designed to minimize the impact of the new development on traffic.

27. On October 1, 1984, the Corps conducted a public hearing on the Riverport application.

28. A large number of agencies, organizations, and individuals spoke or submitted comments at and after the hearing. Among the organizations participating in the hearing were the Missouri Coalition for the Environment, the Open Space Council, and the League of Women Voters.

29. During the Corps' review, Sverdrup modified the design and construction plans for Riverport, reducing the amount of wetlands impacted from 28 to 2.8 acres. In addition, the modifications included...

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