Sierra Club v. Froehlke
| Decision Date | 16 February 1973 |
| Docket Number | Civ. A. No. 71-H-983. |
| Citation | 359 F. Supp. 1289 |
| Parties | SIERRA CLUB et al., Plaintiffs, v. Robert F. FROEHLKE, Secretary of the Army, et al., Defendants, Trinity River Authority of Texas et al., Defendants by Intervention. |
| Court | U.S. District Court — Southern District of Texas |
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Robert H. Singleton, Lawrence D. Thompson, Houston, Tex., James W. Moorman, San Francisco, Cal., for plaintiffs.
Anthony J. P. Farris, U. S. Atty., Jack Shepherd, Chief Asst. U. S. Atty., Charles B. Wolfe, Asst. U. S. Atty., Houston, Tex., for defendants.
Martin Harris, Barry Bishop, Clark, Thomas, Harris, Denius & Winters, Austin, Tex., for Trinity River Authority of Texas.
William A. Olson, City Atty., Edward A. Cazares, First Asst. City Atty., Joseph G. Rollins, Senior Asst. City Atty., Houston, Tex., for City of Houston and Coastal Industrial Water Authority of Texas.
S. G. Johndroe, Jr., City Atty., City of Fort Worth, Tex., for Fort Worth, Tex.
N. Alex Bickley, Carroll R. Graham, Peter R. Thompson, Dallas, Tex., for City of Dallas, Texas.
The complexity of this case and the substantial record1 submitted for review have caused this Court great concern. The geographical magnitude of the projects and the financial investment involved are very substantial. The Court has closely studied the entire record, paying particular attention to the various studies and congressional hearings. These include three studies pertaining to what this Court shall identify as the Trinity Project, described in detail hereafter, which were published in 1941,2 1965,3 and most recently in 1968.4 Several relate specifically to what this Court will identify as the Wallisville Project, including one published in 1961,5 the general design memorandum6
and recreational study7 published in 1965, and a supplement published in 1969.8 Of central importance will be the environmental impact statement for the Wallisville Project, dated December, 1971.9 The congressional hearings to which this Court has paid closest attention include those relating to appropriations for public works projects for the fiscal years 1966,10 1967,11 1968,12 1969,13 1970,14 1971,15 1972,16 and 1973.17
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This case is brought as a class action by five organizations and two individuals on behalf of themselves and a class who have enjoyed or otherwise derived benefit from the Trinity River, Trinity Bay, and surrounding areas in their natural state and who wish to preserve and enhance such areas in their natural state and beauty. Four of the organizations include the Sierra Club, the Houston Audubon Society, the Houston Sportsmens Club and the Environmental Protection Fund. In general, each alleges a membership in Texas who use and enjoy the waters of the Trinity River, Trinity Bay, and surrounding areas. Collectively, they exist for purposes of promoting conservation and proper management of land, water and wildlife resources. The fifth organization, the Texas Shrimp Association, is composed of members primarily engaged in commercial shrimping in areas of the Trinity River, Trinity Bay, and related localities. The organization exists for the purpose, among others, of preserving the shrimp nursery grounds in their natural state. The two named individuals, Charles L. Peting and Eugene A. Dutton, live in or near the affected areas where they have hunted, trapped, fished and shrimped in the Trinity River and Trinity Bay areas, and they wish to preserve these areas in their natural state. The complaint, taken as a whole, alleges that the failure of the defendants to abide by the applicable law has caused irreparable harm and damage to plaintiffs who have no adequate remedy at law.
Named as defendants in the complaint are Robert F. Froehlke, Secretary of the Army, Lt. Gen. Frederick J. Clark, Chief of Engineers of the Army Corps of Engineers, and Col. Nolan C. Rhodes, District Engineer of the Army Corps of Engineers. All defendants, collectively referred to as the Corps by this Court, are sued in their official capacities. For purposes of this decision, the Court requested, and the Corps supplied, a simplified chain-of-command for the Corps of Engineers. This is included in the footnotes.18 Another party appearing
as a defendant, by intervention, is the Trinity River Authority of Texas (hereinafter referred to as the TRA). The TRA is a governmental agency of the State of Texas which was created as a conservation and reclamation district pursuant to statute.19 The duty of the TRA is to prepare a master plan for the maximum development of the soil and water resources of the entire Trinity River watershed, including plans for the complete utilization, for all economically beneficial purposes, of the water resources of the watershed. The TRA is empowered to engage in water supply, flood control, pollution control, sewerage transportation and treatment, navigation, soil conservation and other related activities. Both the Wallisville and Trinity River Navigation Projects are located within the territory over which the TRA has authority. The record indicates that the TRA has been active in promoting and coordinating planning and construction activities related to both of these projects as well as several others. The City of Houston, Texas, defendant by intervention, is a municipal corporation concerned with the conveyance, transportation and distribution of water for and on behalf of the City. Much of its water sources presently come from the Trinity River, and it has contracted with the federal government to store and impound water in the reservoir being created by the Wallisville Project. The Coastal Industrial Water Authority of Texas, which intervened jointly with the City of Houston, is a governmental agency of the State of Texas created as a conservation and reclamation district and authorized to sell, transport and deliver water to customers. Additional defendants are the Cities of Dallas and Fort Worth, Texas, both of which are being allowed to intervene as defendants by this opinion,20 as they have substantial interests in flood control and navigational aspects of the Trinity Projects.
The controversy in this case focuses upon a comprehensive development program of the Trinity River Basin which includes provisions for navigation, flood control, water conservation and recreation.21 This is being accomplished in part by the State of Texas and in part by the Corps of Engineers, both working together. Part of this development program is the Trinity Project which provides for a multiple purpose channel 12 ? 200 feet in dimensions extending about 363 miles from the Houston Ship Channel in Galveston Bay, near the Gulf of Mexico, to Fort Worth, Texas. The channel serves both navigation and flood control purposes and will consist of sixteen navigation dams and twenty navigation locks to overcome a total lift of 496 feet. The channel will follow an existing navigation channel to Liberty, Texas, and pass through the pools of Wallisville, Livingston and Tennessee Colony reservoirs. The existing Dallas floodway will be enlarged, and part of the Trinity River and tributary channels in the vicinity of Dallas will be realigned for flood control. This project also entails other flood control features, construction of about 98 miles of 84 inch pipeline from Tennessee Colony Lake to Benbrook Lake, and alterations to existing bridges and utilities to provide navigation clearances. Future plans include a widening of the channel to 250 feet and the adding of duplicate locks with pumping facilities to recirculate water. Provisions are also made for water quality control, recreation and redevelopment.22 The latest projected appropriation estimate for the total Trinity project to completion is $1,356,000,000.23 The magnitude of this project may be seen by considering that the total civil works budget for the Corps of Engineers in the entire country for fiscal year 1973 is $1,844,591,000.24 According to the record, with the exception of Wallisville, no construction work has begun on any of the specified components of the Trinity Project, although engineering and environmental studies and evaluations are underway.
The focal point of this litigation is the Wallisville Project. Located at the mouth of the Trinity River, this project consists of a low dam 39,000 feet in length, a navigation lock compatible with the dimensions indicated for the Trinity Project's navigation features and ancillary facilities needed for operation of the lock. The structural facilities will occupy approximately 80 acres of land, while the reservoir contained behind the dam will, at its initial maximum operating level of four feet, cover approximately 19,700 acres. This project also entails enlarging an existing 6 foot deep by 100 foot wide navigation channel from the reservoir to Liberty, Texas, a distance of approximately twelve miles, as well as developing recreational facilities.25 The total estimated appropriation cost of the Wallisville Project is $28,800,000. As of December 31, 1972, construction on the dam and lock is represented to be approximately 87 percent complete with the overall project development being approximately 72 percent complete.
The project territory for the Trinity Project includes wooded lands, pasture and crop lands with the majority of the area being characterized as agricultural.26 The Wallisville Project will submerge substantial amounts of woodands and marshands which provide natural...
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