Sierra Club v. Callaway

• Decision Date: 22 November 1974
• Docket Number: No. 73-2745.,73-2745.
• Citation: 499 F.2d 982
• Parties: SIERRA CLUB et al., Plaintiffs-Appellees, v. Howard H. CALLAWAY, Secretary of the Army, et al., Defendants-Appellants, Trinity River Authority of Texas et al., Intervenors-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

499 F.2d 982 (1974)

SIERRA CLUB et al., Plaintiffs-Appellees, v. Howard H. CALLAWAY, Secretary of the Army, et al., Defendants-Appellants, Trinity River Authority of Texas et al., Intervenors-Appellants.

No. 73-2745.

United States Court of Appeals, Fifth Circuit.

August 26, 1974.

Rehearing and Suggestion of Rehearing Denied November 22, 1974.

James H. Keahey, Martin Harris, Frank R. Booth, Austin, Tex., for Trinity River and others.

S. G. Johndroe, Jr., City Atty., Ft. Worth, Tex., for City of Ft. Worth.

Joseph G. Rollins, Senior Asst. City Atty., Houston, Tex., for City of Houston and others.

Peter R. Steenland, Wallace H. Johnson, Edmund B. Clark, Raymond N. Zagone, George R. Hyde, Dept. of Justice, Washington, D. C. and Anthony J. P. Farris, U. S. Atty., Charles B. Wolfe, Asst. U. S. Atty., Jack Shepherd, Chief Asst. U. S. Atty., Houston, Tex., for Secretary of Army and others.

Warren Clark, Jr., Anahuac, Tex., for Chambers-Liberty Counties Navigation Dist.

N. Alex Bickley, City Atty., Carroll R. Graham, Peter R. Thompson, Dallas, Tex., for City of Dallas.

Robert H. Singleton, Houston, Tex., John D. Hoffman, San Francisco, Cal., Ray Berry, Houston, Tex., for plaintiffs-appellees.

Before WISDOM and CLARK, Circuit Judges, and GROOMS, District Judge.

Rehearing and Suggestion of Rehearing En Banc Denied November 22, 1974.

GROOMS, District Judge:

This is an appeal from a Summary Judgment permanently enjoining Howard H. Callaway, Secretary of the Army,¹ Lieut. General Frederick J. Clarke, Chief of Engineers of the Corps of Engineers of the United States Army, and Col. Nolan C. Rhodes, District Engineer of the Corps of Engineers (hereinafter referred to as the Corps), from constructing the Trinity River Project and from continuing with the construction of the Wallisville Project in the State of Texas pending further orders of the court. Intervenors, Trinity River Authority of Texas (Trinity), Coastal Industrial Water Authority of Texas (Coastal), and the Cities of Houston, Dallas and Fort Worth, also appeal. The case was brought as a class action by Sierra Club, Environmental Protection Fund, and others (hereinafter called Sierra Club), for themselves and others similarly situated. The complaint was grounded upon an alleged failure of compliance by the Corps with the National Environmental Policy Act of 1969. 42 U.S.C. § 4331 et seq.

Trinity is a Texas conservation and reclamation agency with the duty of planning for the development and utilization of the soil and water resources of the Trinity River watershed with power to engage in water supply, flood and pollution control, sewage transportation and treatment, navigation, soil conservation, and other related activities. Coastal is also a Texas conservation and reclamation agency with authority to sell, transport and deliver water to customers. Houston is concerned with the transportation and distribution of water much of which presently comes from the Trinity River. It has contracted with the federal government for the use of the reservoir being created by the Wallisville Project as a transfer point for a part of its water supply. Dallas and Fort Worth are located on the upper reaches of the Trinity River Basin and are interested in the flood control and navigational aspects of the Trinity Project.

The court in what clearly was a monumental task has written ably, at great length, and with much detail, 359 F.Supp. 1289, pp. 1298-1386, and awarded the relief prayed for.

The Corps insists that the court erred (1) in considering the Wallisville Project as a mere increment of the Trinity River Project; (2) in examining and ordering revision of the Corps' benefit-cost ratio; (3) in applying an inappropriate burden of proof requirement; and (4) in improperly enjoining the two projects after making an erroneous determination that the Wallisville Environmental Impact Statement (EIS) was inadequate.

Trinity, Coastal and the three cities in the main join the Corps in its insistence upon the errors referred to. They further insist that the court erred in granting the Motion for Summary Judgment because the record shows material fact issues which require a trial on the merits. The Corps asserts that Summary Judgment was the proper procedural vehicle, but that judgment should have been for it on its Motion for Summary Judgment.

The Chambers-Liberty Counties Navigation District, a party to the construction contract with the Corps, with wide interest in navigation and related activities in the Trinity and Galveston bay areas, files a brief amicus curiae. In addition to the question of whether Wallisville was, and is, a component of the Trinity Project, it also presents the question of whether the Corps, when involved in an ongoing project, may approach the required compliance with NEPA differently from what might be required with respect to new projects.

We reverse and remand.

The Trinity River Project is extensive in scope. It includes the elimination of 184 crooks and bends in the river and the construction of a channel of a width of 200 feet and a depth of 12 feet extending from the Houston Ship Channel in Galveston Bay to Fort Worth, a distance of 363 miles. It will require sixteen dams and twenty locks with a total lift of 496 feet. Future plans include a channel of 250 feet and the addition of duplicate locks. The latest projected estimate of costs of the Project is $1,356,000,000.00.

The Wallisville Project is located at the mouth of the Trinity River and consists of a low dam 39,000 feet in length, with a navigation lock of a size conformable to those upstream. The project entails enlarging an existing 6-foot-deep by 100-foot-wide navigation channel from the reservoir to Liberty, Texas, a distance of twelve miles. The reservoir will have an initial operating level of four feet and will cover approximately 19,700 acres, with structural facilities occupying 80 additional acres. The total estimated costs of the Wallisville Project is $28,800,000. As of December 31, 1972, the dam and lock was approximately 87% complete and the overall project 72% complete.

The court below has set out in extenso with copious references the legislative history of the Trinity River and Wallisville Projects. To here recount it other than in general outline would serve no useful purpose.

The navigation of the Trinity River first received federal recognition and assistance about the time of the Civil War. In 1902 the River became a major federal project. A four-foot channel with 37 locks and dams for water utilization and navigation was projected. From that date until 1916 Congress authorized the individual construction of various locks and dams. But in 1922 it abandoned the project except for the channel from the mouth of the River to Liberty, Texas. In 1930 the channel to Liberty was suspended. However, in 1940 it was reopened with a limited allocation of funds.

In 1941 the Corps published the first major study of the Trinity Basin. The plan proposed for flood control, navigation and water conservation contemplated a channel 9 feet deep and 150 feet wide, with 26 locks and sufficient dams and reservoirs for water storage necessary for navigation. Because the navigation feature was found to be economically unjustified, the Corps recommended the approval of the plan as a whole with postponement of construction above Liberty. In 1956 a major drought caused extensive saltwater intrusion with much damage to rice crops. As a result local interests constructed a temporary dam in the River as a saltwater barrier. Following that and later intrusions the Senate Committee on Public Works adopted a restudy resolution in 1958, following which the Corps recommended a comprehensive study of the entire River Basin with a view toward development over the following 40 or 50 years.

Following the completion of a restudy of the Trinity Project in 1963, the Corps recommended that redevelopment plans be coordinated with the Wallisville Project. In 1965 Congress conditionally approved the Trinity Project and appropriated $83,000,000.00 for its partial accomplishment, but directed that before any expenditures be made for the navigation features that the Corps submit a reevaluation based upon current criteria.² In 1968 the Corps submitted its reevaluation study with respect to the economics of the navigational features. The Corps reported that those features were "well justified."

Under the 1958 restudy resolution the Corps authorized an interim report on the immediate problem of saltwater intrusion. In 1961 it submitted its interim report to Congress and recommended that a saltwater barrier reservoir be constructed near the mouth of the Trinity River. In 1962 Congress approved the Corps' recommendation for the Wallisville Lake and Dam,³ with the purpose of salinity control, water supply, navigation, recreation and wild life enhancement. The approval included a lock 56 feet in width and 100 feet in length.

The 1965 Act provided for the enlargment of the lock "authorized for construction in connection with the Wallisville Reservoir," in order to conform with the locks of the Trinity Project.

Congress appropriated funds for the Wallisville Project and construction on the Lake and Dam began in March 1966.

Livingston Reservoir, owned and operated by Houston and Trinity, and located about 100 miles upstream from the Wallisville Lake site, was completed in 1969. Up to 1971 Houston and Trinity had expended over $80,000,000.00 for the Reservoir and appurtenant facilities. Extensive conveyance facilities for water from the Wallisville Reservoir to the City of Houston are under construction. The cost of the total facility is estimated at $250,000,000.00. Coastal has sold bonds totalling $77,000,000.00 for the construction of a water distribution network from the Livingston-Wallisville system to serve NASA, and Harris and Galveston Counties.

In September 1959, Houston and Trinity entered into an...