SOWL vs. United States Army Corps of Engineers Col. Peter J. Rowan

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA

SAVE OUR WETLANDS, INC. (“S.O.W.L"), Plaintiff

Versus

UNITED STATES ARMY CORPS OF ENGINEERS COL. PETER J. ROWAN, in his official capacity as District Engineer of the United States Army Corps of Engineers, New Orleans Division, Defendant

1. This action is a challenge to the approval of a permit under §10 of the Rivers and Harbors Act of 1899, 33 U.S.C. §403, and a permit under §404 of the Clean Water Act, 33 U.S.C. §1344, for the development of a residential and commercial subdivision (“Lakeshore Villages/Estates”) on the north shore of Lake Pontchartrain, in St. Tammany Parish, Louisiana, part of one of the most productive and important estuarine habitat areas of North America.

2. As set forth below, the United States Army Corps of Engineers (“the Corps”) approved the Lakeshore Villages/Estates project permit without the preparation of an Environment Impact Statement (“EIS”), without an adequate environmental assessment (“EA”), and without adequate attention to direct, indirect, and cumulative impacts of such development. The Corps found that the development of a small city over a twenty five year period at the total estimated cost of between 1.5 to 2 billion dollars would not have a significant impact on the environment. The Corps’ approval of the Lakeshore Villages/Estates project permits thus violates the National Environmental Policy Act (“NEPA”), 42 U.S.C. §4321, et seq., and the Administrative Procedure Act (“APA”), 5 U.S.C. §§551, et seq.

3. Plaintiff, a non-profit conservation organization dedicated to protecting wetlands, the marine ecosystem, and other natural resources of Louisiana, including the sensitive resources within the Basin, therefore seeks declaratory and injunctive relief vacating the Corps’ approval of the Lakeshore Villages/Estate project permit until all legal requirements have been satisfied.
   Jurisdiction and Venue

4. This action arises under NEPA, 42 U.S.C. §§4321, et seq., the APA, 5 U.S.C. §§551, et seq., and other federal laws.

5. This Court has jurisdiction of this action pursuant to 28 U.S.C. §§1331 and 1361, and may issue a declaratory judgment and further relief pursuant to 28 U.S.C. §§2201-2202. Plaintiff has a right to bring this action pursuant to, inter alia, the APA, 5 U.S.C. §§701-706.

6. Venue is proper in this Court pursuant to 28 U.S.C. §1391(e).
   Plaintiff

7. Plaintiff, Save Our Wetlands, Inc. (“SOWL”), brings this action on behalf of itself and its adversely affected members. SOWL is a non-profit corporation existing under the laws of the State of Louisiana, with its principal place of business in Orleans Parish, Louisiana. SOWL is a membership organization with approximately 1,200 members residing in Louisiana, many of whom reside on or recreate in or on Lake Pontchartrain, the Lakeshore Villages/Estates project site area, St. Tammany Parish, and other adjacent areas. SOWL is dedicated to the protection and enhancement of the natural resources of the Basin. SOWL’s actions to protect and enhance the environment include litigation against violators of environmental laws. SOWL and its members have a substantial interest in this matter and are adversely affected and aggrieved by the defendant’s actions, as alleged below.

8. SOWL has members who reside near Lake Pontchartrain and other areas in the Basin and St. Tammany Parish where numerous residential and commercial projects, including the Lakeshore Villages/Estates project, have been or are proposed to be developed. SOWL has members who benefit from and use these areas on a regular basis for, among other things, fishing, boating, other outdoor sports and recreational activities, wildlife viewing, nature study, and aesthetic enjoyment, and who wish to protect and preserve these areas for these purposes and for educational and scientific purposes. The interests of SOWL’s members will be directly injured by the degradation of the natural and scenic values and biological productivity of the Basin area through the development of the Lakeshore Villages/Estates project and other residential and commercial development in the region. These developments will substantially increase flood hazards and will substantially degrade the quality of the water and the habitat value of the water and adjoining lands. The foregoing degradations will interfere with plaintiff’s members’ ability to use and enjoy the Basin for various recreational purposes. In addition, SOWL and its members have an interest in the information which NEPA requires the defendant to compile, analyze, and disclose in environmental documents. They also have an interest in availing themselves of the opportunities which NEPA affords for public participation in connection with the preparation of such documents.

9. Plaintiff and its members have been and continue to be irreparably harmed by the acts and omissions of the defendant as alleged herein, have suffered a legal wrong, and are adversely affected and aggrieved by such acts and omissions within the meaning of the APA, 5 U.S.C. §702.
   Defendant

10. Defendant United States Army Corps of Engineers (“the Corps”) is responsible for the issuance of permits under §10 of the Rivers and Harbors Act of 1899, 33 U.S.C. §403, and §404 of the Clean Water Act, 33 U.S.C. §1344. For the Lakeshore Villages/Estates project, the Corps prepared the EA, made a finding of no significant impact (“FONSI”) declaring that an EIS was not necessary, and approved issuance of the §10 and §404 permits. The Corps has acted in violation of NEPA.
    General Allegations
    1. The Lake Pontchartrain Basin:

11. The wetlands along the Basin, of which the Lakeshore Villages/Estates project site is included, provide essential habitat for numerous species of estuarine fish, birds, shellfish, reptiles, and mammals. Among these are several federally listed rare, threatened, or endangered species, including the piping plover, the peregrine falcon, the brown pelican, the bald eagle, and the American alligator.

12. The wetlands along the Basin also perform important roles in the maintenance of water quality. Tidal wetlands serve as natural filters that remove organic pollutants, excess nutrients, and sediments from water moving from land to sea. For example, the wetlands at the proposed Lakeshore Villages/Estates project site help to filter stormwater runoff. The vegetation and soils also serve as storage areas for rainwater, which in turn often percolates into aquifers, providing critical groundwater supplies. This water retention characteristic of wetlands also makes them valuable for flood protection.

13. The wetlands in the Basin are part of a critical estuarine system. Estuarine finfish and shellfish, such as spotted sea trout, red drum, flounder, shrimp, and blue crab depend upon wetlands habitat during key portions of their life cycles. As much as 95% of the commercial fish caught in the Gulf of Mexico are wetlands dependent. In addition, the Gulf of Mexico is a vital commercial fishing area, in 1996 accounting for 69%of all United States shrimp landings, at a value in excess of $400 million. Wildlife such as raccoon, nutria, rabbit, wading birds, rails, song birds, reptiles, and amphibians also utilize these wetlands. Numerous species of coastal and migratory birds make use of the abundant food resources, resting areas, and refuges of the coastal wetlands. In addition, these wetlands provide an ideal environment for numerous breeding birds.

14. From the mid-1970s to the mid-1980s, Louisiana lost over 100,000 acres of forested wetlands. In addition to the incredible acreage lost, the remaining forested wetlands are seriously fragmented and have lost many of their original functions.

15. St. Tammany Parish is one of the fastest-growing parishes in Louisiana. Since 1990, it is the sixth fastest growing county or parish in the Southeast. Over the last twenty years, over 50,000 acres of habitat have been altered in the Parish. The population of Eden Isles, immediately adjacent to Lakeshore Villages/Estates, has grown by 347% between 1980 and 1994. This growth places an enormous strain on all wetlands and natural resources within the Parish and adjacent areas within the Basin.

16. To date, the Corps has issued numerous permits for development within the Basin. For years, the Corps has failed to prepare an EIS for these projects -- individually or collectively -- which cumulatively have resulted in: the filling of acres of wetlands and open waterbottoms; the dredging of acres of coastal waterbottoms; the construction and expansion of marinas; the destruction of wildlife habitat; and the paving of acres of land for the extensive secondary infrastructure (such as access roads, parking lots, hotels, restaurants, entertainment facilities, tennis complexes, and golf courses). This, in turn, has led to the creation of vast, impervious paved areas which have increased stormwater runoff and accordingly decreased water quality; severe vehicular traffic congestion; an increase in air pollution; an increase in noise levels 24 hours a day; an increase in sewerage loadings to the coastal zone; and a significant deterioration in the general aesthetic quality of the impacted areas.
    B. The Lakeshore Villages/Estates Project:

17. On or about May 7, 2004, the Corps approved for Tammany Holding Corporation (“THC”) permits under §10 of the Rivers and Harbors Act and §404 of the Clean Water Act for the development of the 1600 acre Lakeshore Villages/Estates project. This permit is the first 25 year permit issued in the history of the New Orleans District and is actually the second phase of THC’s master plan.

18. The project will include excavation for retention ponds/lagoons and canals; residential and commercial lots and associated infrastructure such as roads, utilities a drainage pump station, etc.; the widening of the East Diversion Canal; levee maintenance/construction and/or relocation; and the dredging of a navigational channel in Lake Pontchartrain.. In particular, the project will involve the dredging or filling of 650 acres of valuable wetlands. Thirty-four and one half acres of Essential Fish Habitat used by red drum and penaeid shrimp will be altered or destroyed.

19. The project will result in the placement of residential and commercial developments within the 100-year flood plain as detailed by the Federal Emergency Management Agency. The Corps has previously determined that the present levee system protecting the project area would be topped by a Category 3 hurricane. The first phase of the Lakeshore Villages/Estates project called for a breach in that levee system to provide boating access directly to Lake Pontchartrain. With a breached levee system and the widening of the East Diversion Canal, the residential and commercial establishments will be vulnerable to hurricane tidal surges and winds. The applicant proposes buildings of heights of over 250 feet and the Corps has done no study of the impacts of placing such buildings in this area. Similar high-rise structures have previously collapsed, killing the occupants, on the Gulf Shore.

20. As noted, the Lakeshore Villages/Estates project is the next phase of THC’s plan to develop the entire 2,000 acre tract of land east of I-10. The first phase did not adequately consider the total direct, indirect, and cumulative impacts of what has turned out to be one project. By piece-mealing the project, the defendant did not pay adequate attention to cumulative impacts. Moreover, the first phase was approved in part because of a mitigation area set aside to compensate for the impacts caused by phase one. Unfortunately, the present phase of the project now intends to place a pumping station, a water treatment plant and neighborhood, commercial, institutional and recreational areas exactly where the mitigation area of the first phase was promised.

21. Construction of the project will also cause: more flooding, the destruction of wildlife habitat, an increase in sewerage loadings, degradation of water quality of Lake Pontchartrain and adjacent canals, urban runoff that will include pesticides and heavy metals, and a significant deterioration of the general aesthetic quality of the impacted areas.

22. The Corps has attached several conditions to the permit. Since THC has already been ordered to pay fines of hundreds of thousands of dollars for illegally dredging the project site prior to applying for a permit, it is unreasonable for the Corps to expect THC to self-regulate. Moreover , since the Corps does not have an enforcement staff, it will have no way of knowing if the detailed conditions are met. The end result is that the permit defeats the purpose of NEPA because it does not address all the reasonably foreseeable direct, indirect, and cumulative impacts of the project that will occur when the conditions are not met by THC.

23. The scope of the project dramatically changed from what was initially presented to the public for comment to what ultimately will be built. This also defeats the purpose of NEPA since the true impacts are not properly analyzed.

24. The project area is characterized by three soil types: Aquents, Allemands muck, and Harahan Clay material. The Corps recognizes that urban uses of these soil types would encounter problems with soil strength, subsidence, and the high shrink-swell potential of the soil. Since its drainage in the mid-1960's, subsidence of three to four feet has already occurred at the project site.
    C. The Environmental Assessment:

25. The Corps prepared an EA for the Lakeshore Villages/Estates project. In this EA, the Corps failed to properly consider all of the direct and indirect impacts of this phase and past or future phases of the project, including the effects on water quality, flooding, and the effects from development within a flood plain on poor soil without adequate protection. The Corps also has failed to analyze adequately the cumulative impacts of the Lakeshore Villages/Estates project and other existing commercial or residential developments on the Basin. Moreover, the Corps failed to analyze adequately impacts from future developments which are proposed or reasonably foreseeable in the project area and Basin. The Corps likewise failed to discuss fully the direct and indirect impacts associated with the development of hotels, condominiums, restaurants, and golf courses near all phases of the Lakeshore Villages/Estates projects, or other forms of economic development that would, with the impacts of the Lakeshore Villages/Estates development, have cumulative environmental effects upon the sensitive resources of the Basin. In the absence of this vital information, the Corps’ conclusion, unsupported by analysis, that the direct, indirect, and cumulative impacts of building a small city are minor, and that an EIS thus is not required, is arbitrary, capricious, an abuse of discretion, and not in accordance with the law.

26. In addition, the Corps did not adequately consider alternative sites for the Lakeshore Villages/Estates project in the EA. In analyzing alternative sites, the Corps relied upon the Lakeshore Estates project developers’ own alternative analysis and conclusion that the project is water dependent.
    COUNT I

    Failure to Prepare an Environmental Impact Statement

27. Plaintiff repeats and incorporates herein by reference the allegations of all foregoing paragraphs.

28. Section 102(2)(C) of NEPA, 42 U.S.C. §4332(2)(C), requires all federal agencies to prepare a detailed EIS prior to any major federal action which may significantly affect the quality of the human environment.

29. The regulations issued under NEPA by the Council on Environmental Quality (“CEQ”), 40 C.F.R. Part 1500, et seq., are binding on all federal agencies, including the Corps. Those regulations require that an EIS be prepared where a federal action “may” cause significant environmental impacts, Id. §1508.3 (“[a]ffecting means will or may have an effect on.”), and also provide that a federal action whose impacts are significant is by definition “major.” Id. §1508.18 (“[m]ajor reinforces but does not have a meaning independent of significantly”).

30. For purposes of determining whether a proposed action has significant environmental effects, “[b]oth short- and long-term effects are relevant.” 40 C.F.R. §1508.27(a). Under NEPA, “effects” and “impacts” are synonymous and encompass direct, indirect, and cumulative effects. The NEPA regulations define these effects and impacts broadly.
    Effects include:
    1. Direct effects, which are caused by the action and occur at the same time and place.

    2. Indirect effects, which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable. Indirect effects may include growth inducing effects and other effects related to induced changes in the pattern of land use population density or growth rate, and related effects on air and water and other natural systems, including ecosystems.
       Effects...includes ecological..., aesthetic, historic, cultural, economic, social, or health, whether direct, indirect, or cumulative. Effects may also include those resulting from actions which may have both beneficial and detrimental effects, even if on balance the agency believes that the effect will be beneficial. Id. §1508.8.
       ‘Cumulative impact’ is the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time. Id. §1508.7.

31. In addition to defining effects broadly, the CEQ regulations require federal agencies to consider various factors in determining whether effects are significant. 40 C.F.R. §1508.27. Among the factors identified by the CEQ regulations are the proximity of the proposed action to unique resources, such as wetlands, and ecologically critical areas; impacts on endangered species or their habitat; whether the possible effects on the environment are highly controversial, highly uncertain, or involve unique or unknown risks; whether the action represents a precedent for future actions with significant effects; and, whether the action is related to other actions whose cumulative impacts are significant. Id. §1508.8.27(b)(3)-)\(7),(9).

32. The CEQ regulations further provide that an action is significant “if it is reasonable to anticipate a cumulatively significant impact on the environment.” 40 C.F.R. §1508.28(7).

33. In addition to the CEQ regulations, the Corps’ own regulations regarding the implementation of NEPA require, inter alia, that the Corps consider several factors in defining the scope of the NEPA analysis. Once the scope of analysis has been defined, the NEPA analysis must include “direct, indirect and cumulative impacts on all Federal interests within the purview of the NEPA statute.” 33 C.F.R. §325.App. B, 7.b(3).

34. The Corps’ approval of the Lakeshore Villages/Estates project on Lake Pontchartrain is a major federal action that will significantly affect the quality of the human environment. As described above, the impacts of the proposed Lakeshore Estates project taken alone are significant. Approximately 650 acres of wetlands will be destroyed as part of the second phase of a project that involves 2,000 acres. THC plans to spend 1.5 to 2 billion dollars over twenty-five years. The development is occurring on soil that is not suitable for urban uses in an area already experiencing subsidence. Further, the project calls for channel dredging in areas suffering from high levels of heavy metals. The Corps’ permit exposes this entire flood prone area to increased flooding hazards. In addition, those impacts, taken in combination with the effects of other permitted, proposed, and reasonably foreseeable future developments along with other types of secondary economic development within areas in the Basin and St. Tammany Parish, are cumulatively significant. Those impacts include, but are not limited to, significant adverse impacts on: the water quality of Lake Pontchartrain and the entire Basin area; opportunities for sport and commercial fishing; opportunities for other recreational activities -- such as boating and wildlife viewing; and the health of wildlife and plant life -- including rare, threatened, and endangered species. The impacts of the Lakeshore Villages/Estates project individually, and the cumulative impacts of that project together with the permitted, proposed, and reasonably foreseeable future projects and economic development, will pose great risk to the unique resources of Lake Pontchartrain and the Basin, and St. Tammany Parish. Moreover, the impacts of the first phase of the project have never adequately been mitigated.

35. The decision of the Corps to approve the Lakeshore Villages/Estates project without first preparing an EIS analyzing the direct and indirect impacts of the project both individually and in combination with all past, present, and reasonably foreseeable future economic development affecting the resources of the Basin is in violation of §102(2)(C) of NEPA, 42 U.S.C. §4332(2)(C), the applicable CEQ regulations, the applicable Corps regulations, and the APA. That decision is arbitrary, capricious, an abuse of discretion, and not in accordance with the law.
    COUNT II
    Failure to Consider Adequately Direct, Indirect, and Cumulative Environmental Impacts in the Environmental Assessment

36. Plaintiff repeats and incorporates herein by reference the allegations of all foregoing paragraphs.

37. EAs are used to determine “whether to prepare an environment impact statement” for a particular action. 40 C.F.R. §1501.4(c), 33 C.F.R. §230.10(a). The CEQ regulations provide:
    “Environmental Assessment”:
    1. Means a concise public document for which a Federal agency is responsible that serves to:
       1. Briefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact.

       2. Aid an agency’s compliance with the Act when no environmental impact statement is necessary.

       3. Facilitate preparation of a statement when one is necessary.
          Shall include brief discussions of the need for the proposal, of alternatives as required by section 102(2)(E), of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted.

38. C.F.R. §1508.9. The Corps’ NEPA regulations provide that an EA must “provide[] sufficient information to the district commander on potential environmental effects of the proposed action and, if appropriate, its alternatives, for determining whether to prepare an EIS or a FONSI (40 C.F.R. §1508.9),” 33 C.F.R. §230.10(a), and that it must include, inter alia, “a brief discussion of the need for the proposed action, or appropriate alternatives if there are unresolved conflicts concerning alternative uses of available resources, [and] of the environmental impacts of the proposed action and alternatives.” Id. §230.01(b). The EA’s discussion of impacts must meet the various requirements enumerated in Count I of this complaint.

39. In preparing the EA for the proposed Lakeshore Estates project, the Corps failed to meet the foregoing requirements. Such failures include, but are not limited to, failure to consider or to consider adequately the impacts of building in a flood zone on poor soil and in an area susceptible to hurricane storm surge without adequate protection; failure to consider or to consider adequately the cumulative effects of the Lakeshore Villages/Estates project together with all permitted, proposed, and reasonably foreseeable development on the Basin and St. Tammany Parish, including the effect on the water and habitat quality of Lake Pontchartrain and its Basin; and failure to consider or to consider adequately alternatives to the project.

40. The Corps’ approval of the Lakeshore Villages/Estates project without fully considering in the EA the project’s direct, indirect, and cumulative effects on the human environment, and alternatives to the project, is in violation of §§102(2)(C) and (E) of NEPA, 42 U.S.C. §§4332(2)(C) and (E), the applicable CEQ regulations, the applicable Corps regulations and the APA. That decision is arbitrary, capricious, an abuse of discretion, and not in accordance with law.
    COUNT III

    Failure to Adequately Consider Alternatives Under the Clean Water Act

41. Plaintiff repeats and incorporates herein by reference the allegations of all foregoing paragraphs.

42. Section 404 of the Clean Water Act, 33 U.S.C. §1344, authorized the Secretary of the Army, acting through the Chief of Engineers, to issue permits for discharge of dredge and fill material into navigable waters of the United States at specified disposal sites.

43. Regulations governing the issuance of §404 permits prohibit issuance of a permit “if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences.” 40 C.F.R. §230.10. “An alternative is practicable if it is available and capable of being done after taking into consideration cost, existing technology, and logistics in light of the overall project purposes.” 40 C.F.R. §230.10.

44. The Corps’ regulations further require that where a proposed activity does not require siting within a special aquatic site, the Corps must apply the presumption that practicable alternatives not in special aquatic sites exist. 40 C.F.R. §230.10. Furthermore, these alternatives are presumed to have a less adverse impact on the aquatic ecosystem. Id.

45. In evaluating the impacts of the proposed Lakeshore Villages/Estates project, the Corps failed to consider numerous, less harmful, practicable alternatives which would fulfill the basic project purpose of providing residential housing to the State of Louisiana.

46. In addition, the Corps did not fully consider alternative sites which would have less adverse impact on the aquatic ecosystem and would not have other significant adverse environmental consequences.

47. The activity in question -- as noted in the Public Notice “residential and commercial development”-- does not require siting in a special aquatic site. However, in evaluating the proposed Lakeshore Villages/Estates project, the Corps failed to apply the presumption that other alternatives, not involving special aquatic sites, are available.

48. The Corps’ approval of the Lakeshore Estates project without prior evaluation of all practicable alternatives is in violation of §404 of the Clean Water Act, 33 U.S.C. §1344; and the Corps’ regulations and guidelines, 33 C.F.R. §320.4(b); 40 C.F.R. §230.10 and the APA. That decision is unreasonable, arbitrary, capricious, an abuse of discretion, and not in accordance with law.
    PRAYER FOR RELIEF

    Plaintiff respectfully requests that this Court:

    COUNT I