(CONSOLIDATED MATTERS) CIVIL ACTION
Versus
EARLY J. RUSH, III. ET. AL.
&
ST. TAMMANY POLICE JURY
Versus
CLIFFORD L. ALEXANDER, ET. AL
The Court reserves the right to modify the injunction ordered herein upon proper motion of any party.
New Orleans, Louisiana, this 30th day of December, 1977. Charles Schwartz, Jr.,
This matter is presently before the Court for determination as to whether or not an injunction should issue restraining the United States Army Corps of Engineers from proceeding with certain portions of the Lake Pontchartrain, Louisiana and Vicinity Hurricane Protection Project, for the reason that the Final Environmental Impact Statement prepared by the Corps in August, 1974 fails to comply with the requirement of Title 43, United States Code, Section 4332. In addition, the Court must determine whether or not certain “local assurances” of financial support for the project received by the federal government from the Board of Levee Commissioners of the Orleans Levee District (hereinafter the Levee Board) are in fact legally sufficient.
Plaintiffs in these consolidated cases are Save Our Wetlands, Inc. (SOWL), the Clio Sportsman’s League, Raymond Mix, and the St. Tammany Police Jury. Defendants are Early Rush, District Engineers, U.S. Army Corps of Engineers, New Orleans District; Clifford Alexander, Secretary of the Army; Douglas Costle, Administrator of the Environmental Protection Agency, and the Levee Board through its President, Guy LeMieux.
Although the proposed Lake Pontchartrain hurricane protection project (hereinafter LPHPP) consists of multiple features, those at issue before the Court at this time are limited to the Chalmette and New Orleans East portions of the plan and the proposed barrier structures at Chef Menteur Pass and the Rigolets. Other aspects of the proposed plan have been dismissed from this proceeding by order of court or stipulation of the parties.
It is clear from the evidence in this case that the Final Environmental Impact Study for the Lake Pontchartrain, Louisiana and Vicinity Hurricane Protection Project prepared by the United States Army Corps of Engineers dated August, 1974 does not comply with the requirements of Title 43 United States Code, Section 4332 which provides in pertinent part;
“The congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter, and (2) all agencies of the Federal Government shall ---
Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council as provided by section 552 of Title 5, and shall accompany the proposal through the existing agency review processes;”
The opinion of this Court that the Final Environmental Impact Statement (FEIS) for the Lake Pontchartrain Hurricane Project is legally deficient in light of the aforementioned statute is based upon the following facts which were proved by a preponderance of the evidence at trial of this matter.
According to the FEIS at page I-3, paragraph 7 through page I-5 paragraph 17, the barrier structures at Chef Menteur Pass and the Rigolets will be designed as follows:
The gated control structure and channel will be constructed west of the Chef Menteur Pass and south of the present GIWW. The gated control structure will be 400 feet wide with a sill elevation of -25 feet. Eight gate openings 46 feet wide will provide 9,200 square feet of opening below elevation 0. The openings will be closed by lowering the two gate sections in each of the eight gate bays by means of gantry crane. These gate sections will be stored in each gate bay. In the stored position, the bottom of the gates will be at elevation 3 feet. The approach channels will flare at a 12.5ºangle horizontally from the 400-foot width at the structure to width of 700 feet. From this point a constant channel width of 700 feet will be maintained. The channel depth of 40 feet will be maintained. A closure dam will be located in the present Chef Menteur Pass channel and at two locations along the existing GIWW.
The Chef Menteur Pass navigation canal will run from west of the Lake Borgne opening of the existing channel to the Chef Menteur Pass channel near the L&N Railroad bridge. The approach channel will be 125 feet wide. The navigation structure will be 84 feet wide with the sill at -16 low gulf (m.l.g.). Sector gates will be used because of reverse head conditions and so the structure can be converted to a lock in the future if needed. The structure will consist of a concrete gate bay on timber pilings, flanked by floodwalls. The top of the gate bay and floodwalls will be at elevation 14.0 feet.
Also included in the Chef Menteur Pass Complex is the relocation of the GIWW to the south of its existing location. Barrier levees will be constructed to adjoin the Chef Menteur Pass Complex structures to each other and to the US Highway 90 embankment which also serves as portions of the barrier levee. The protection levee will be at an elevation of 14.0 feet adjacent to and in between the structures and will be at an elevation of 9.0 feet at other locations. This elevation of 9 feet will allow flood surge overtopping for a short period during a hurricane, but this overtopping will not significantly affect the water elevation of Lake Pontchartrain and affect the function of the barrier system.
The Rigolets Complex will be located south of the US Highway 90 bridge. It will consist of a gated control structure and a closure dam in the present Rigolets channel, a navigation channel and lock east of the natural channel, and adjoining barrier levees.
The gated portion of the control structure will be 800 feet long and 50 feet wide with a sill depth of ~30 feet. There will be 16 gate bays each 46 feet wide. Each bay will have three vertical lift steel gates which will be raised and lowered by an overhead gantry crane.
The approach channel to the control structure will have an 800-foot bottom width and a depth of ~30 feet at the structure sill. On the gulf side, the channel will slope downward from the structure along a 1 on 10 slope to a depth of ~35 feet and remain level for a distance of 100 feet, thence slope upward along a 1 on 10 slope to the existing channel bottom. On the Lake side, the channel bottom will slope downward from the structure along a 1 on 10 slope to a depth of ~35 feet and remain level for a distance of 100 feet, and continue at this elevation for 2,300 feet, thence slope upward on a 1 on 10 slope to the existing channel bottom. The channel sides will slope 1 on 3 from the bottom of the channel to the surface of the ground.
The closure dam will be located adjacent to the east and west sides of the control structure. It will consist of a western embankment 710 feet long and an eastern embankment 3,965 feet long. The crest elevation will be at 14.0 feet.
A navigation canal and lock will be constructed east of the closure dam. The lock will be 110 feet wide with 800 feet usable chamber length. The lock will be provided with sector gates with sill elevation at ~14.0 feet (~13.2 feet m.l.g.).
The proposed levee network south of the Rigolets consists of 2.4 miles of highway levee and 0.4 mile of connecting levee. The levee system will utilize the existing embankment on US Highway 90, where its grade is equal or greater than 9 feet which is some 3.3 miles west of the existing bridge crossing at The Rigolets. From this point, going east, the levee will be constructed on the southern side and parallel to the existing highway embankment and will terminate at the intersection of the connecting levee between the highway embankment and the closure dam. The controlling elevation of the levee system is 9.0 feet.
The levee network north of The Rigolets consists of 0.2 mile of levee between the closure dam and navigation lock and 1.8 miles of levee extending north of the lock to US Highway 90 at Apple Pie Ridge."
In section 3 of the FEIS, “The Probable Impact of the Proposed Action on the Environment,” it is indicated that model testing of the plan was carried out at the United States Army Engineer Waterways Experiment Station which indicated among other things “that the effects of the proposed hurricane surge control structures in Chef Menteur and Rigolets passes on both salinities and tidal heights would be negligible.” The FEIS indicates that impact on marine life in the Lake would not be deleterious and that the loss of marsh area resulting from construction of levees in some wetlands areas and subsequent urbanization would not extensively decrease the secondary productivity of the lake.
In summary the FEIS presents a detailed plan for hurricane protection which, upon reading of the FEIS, appears to closely approximate natural conditions in the areas and accordingly have little adverse impact on the area environment. Unfortunately, testimony at trial reveals that the picture of the project painted in the FEIS was not in fact a tested conclusion but a hope by the persons planning the project that it could in fact be constructed so as to meet the environmental objectives set out in the FEIS. More crucially, the FEIS fails absolutely to aver in any way to questions which the Corps had at the time of the FEIS as to the possible adverse effects of project as planned.
The model studies referred to in the 1974 FEIS were done in 1962 at the Waterways Experiment Station (WES) in Vicksburg. However, these tests were not made on a model of the project as described in the FEIS. Instead the model utilized the original design proposed for the barrier structures (Plan 1) which places such structures in man-made land cuts. Subsequently, but prior to the issuance of the FEIS, the design plan was modified so as to place the barrier structures in the natural passes as set out in the FEIS (Plan 2). The effect of the change in the placement of the barrier structures considerably modified the effect on the barrier structures on the waters of the passes. However, the fact that the model studies relied upon were based upon a significantly different plan is not disclosed in the FEIS.
In 1973 the Corps, through Jerome C. Baehr, Chief, Engineering Division, New Orleans Division, requested further model studies. In a document requesting such studies (Exhibit P30) under date of October 5, 1973, Mr. Baehr indicated that:
The studies requested by the Baehr report were undertaken by the Corps. They were ongoing at the time of the issuance of the FEIS and were not completed until 1976. However, neither their existence nor the underlying problem giving rise to them are even suggested in any place in the FEIS.
It is further clear from the testimony that the Corps did not, as required by 42 U.S.C. §4332, actually utilize an interdisciplinary approach to the formulation of the impact statement. The Corps relies upon consultation with one hydrology/marine biology expert, Dr. Gordon Gunter. The totality of the Corps’ submission of the matter to Dr. Gordon Gunter was by means of perhaps as few as one conversation with Dr. Gunter in which he was asked if a structure altering neither salinity nor volume more than 10% would have adverse effect on the lake and the marine life in it. Given this hypothetic, Dr. Gunter concluded that the project would not be harmful or have significant effect. Dr. Gunter was never requested to submit a written report and accordingly did not. He was not requested to review the EIS in either its draft or its final form.
Glen Muntz of the Corps of Engineers was a coordinator for the EIS. During the formulation of the EIS he expressed to his superiors that he had reservation about statements in the EIS to the effect that the barriers at the Chef and the Rigolets would not affect certain environmental characteristics of the area, it being Mr. Muntz’s opinion that at that stage the statement should more properly have been “should not” rather than “would not” affect.
However, such reservation is not hinted in the FEIS and in fact at page III-3, paragraph 5, language of Dr. Muntz was in fact altered by the framers of the EIS. Dr. Muntz indicated that “organisms which utilize detritus will decrease in numbers…” He did not suggest that, as the FEIS states, “…but this loss will not be extensive.”
Although the FEIS refers to many engineering studies, it does not adequately reflect a cross-section of the related disciplines. In many cases information relied upon by the Corps to support its conclusions was not even obtained in written form.
Section 4332 requires that there be consultation by the drafting agency with other agencies with special expertise in the area addressed or some jurisdiction over it. In the instant case the Corps should have consulted closely with the U.S. Fish and Wildlife Service. The testimony reveals that although there was communication with that agency, it was infrequent and unproductive.
The testimony reveals serious questions as to the adequacy of cost-benefit analysis of the plan. Certain economic benefits were assigned to the plan resulting from the conclusion that the construction of levees in certain marsh areas would allow urbanization in those areas. However, many of these areas have been designed as wetlands subject to considerable limitation as to use. This considerable decrease in the possibility of urbanization is not reflected in the economic benefits assigned to the plan. A Corps economist requested that the matter be restudied; however, such restudy has not come about.
Finally, in light of the problems of which the Corps was aware with respect to the possibility of significantly decreased tidal flow through the structures as planned, there is inadequate evidence of the exploration and evaluation of alternative plans as required.
The Court is further of the opinion that it has jurisdiction over the defendant Board of Levee Commissioners of the Orleans Levee District which entity is a partner with the Federal Government in the hurricane protection project at issue herein. Named Individual Members of the San Antonio Conservation Society vs. The Texas Highway Department, 446 F.2d 1013 (5th Cir. 1971).
The Court is of the opinion that the evidence adduced in connection with the giving by the Levee Board of “local assurances” regarding its capability to perform was not sufficient to the extent contemplated by Section 221 of Public Law 91-611 (42 U.S.C. 1962d-5b). While the Court does not determine hereby whether or not the Levee Board can subsequently comply with the aforementioned statute, further documentation of the record is not required at this time as such issue is not necessary (in light of the reasons previously stated) to the Court’s issuance of an injunction in this case.
The Corps urges that as of December, 1977, design changes to the proposed barriers have been devised which will approximate the environmental conditions set out in the FEIS. While the Court is of the opinion that any agency has not only the right but the duty to continually revise and improve its plans, such revision subject to the FEIS in this case does not cure the defects in that document.
The purpose, among other things, of an environmental impact study is to alow interested parties adequate and accurate information by which to assess the merits and demerits of a proposed plan. It must and should reflect any concerns which the planning agency has about the project as well as the advantages of it.
It is clear that the EIS in this case was based upon a design which had not been adequately tested and contains data which ostensibly pertains to such design which was in fact the result of testing of another significantly different placement of the barriers with significantly different impacts. The report is not candid and is in fact misleading in suggesting that the barriers as planned would closely approximate the natural passes with minimal impact when the Corps possessed serious questions about this, was engaged in further testing, had not developed a final or adequate plan. In short, the EIS actually expresses only a hope that a project can be accomplished in the desired way while on its face it appears that such project and result are a tested fact. As written the EIS actually precludes both public and governmental parties from the opportunity to fairly and adequately analyze the benefits and detriments of the proposed plan and any alternatives to it.
For the foregoing reasons it is the opinion of the Court that plaintiffs herein have demonstrated that they, and in fact all persons in this area, will be irreparably harmed if the barrier project based upon the August, 1974 FEIS is allowed to continue. As the Chalmette and New Orleans East portions of such project are not separable parts of such plan, they too should be enjoined pending revision of the impact statement to conform with the statutory dictates.
Accordingly, it is ordered that defendants herein be enjoined from further construction of the barrier structures and associated structures at Chef Menteur Pass and the Rigolets, and the New Orleans East and Chalmette portions of the Lake Pontchartrain Hurricane Protection Plan until such time as they shall have complied with the Department of the Army Regulation No. 1105-2-507 Paragraph 7a with regard to revision of the environmental impact statement regarding this project.
"The foregoing opinion should in no way be construed as precluding the Lake Pontchartrain project as proposed or reflecting on its advisability in any manner. The Court’s opinion is limited strictly to the finding that the environmental impact statement of August, 1974 for this project was legally inadequate. Upon proper compliance with the law with regard to the impact statement this injunction will be dissolved and any hurricane plan thus properly presented will be allowed to proceed".
New Orleans, Louisiana, this 30th day of December, 1977.