Court Sides With Corps in MS River Suit

LINCOLN, Neb. (DTN) -- The U.S. Army Corps of Engineers has followed the law in managing the navigation channel on a 195-mile stretch of the Mississippi River from St. Louis, Missouri, to Cairo, Illinois, a federal judge ruled this week. This ends a lawsuit filed by the National Wildlife Federation and other conservation and environmental groups.

The U.S. District Court for the District of Southern Illinois this week granted summary judgement to the Corps, ruling the agency's actions on the channel complies with the Rivers and Harbors Act.

Environmental groups want the federal courts to slow down Corps of Engineers projects with more detailed environmental reviews of the effects on wildlife.

The Mississippi River is the most critical export channel in the United States for agricultural goods, accounting for 57% of corn exports and 59% of soybean exports, according to a 2019 USDA report. That study called for more investment in lock and dam infrastructure during the next decade to maintain a competitive advantage in agricultural exports to key markets such as China. Those increased infrastructure investments, however, are tied directly to Corps projects on the river.

The court also considered but denied a motion for summary judgement filed by conservation and wildlife groups in March 2021.

U.S. District Judge David W. Dugan said in his 40-page memorandum with the order the groups suing the Corps had not "revealed any clear error of judgment on the part of capricious, an abuse of discretion, or otherwise not in accordance with the Administrative Procedures Act.

"NEPA (National Environmental Policy Act) does not, however, mandate that an agency reach any particular decision, only that the agency follows NEPA's procedures to arrive at an informed decision."

The lawsuit alleged recent flooding in the Mississippi River basin could have been avoided had the Corps better managed the stretch of river.

Summary judgement occurs in a civil case when one party wants to move to a court decision without a trial. Such a decision can happen only when two parties agree to the critical facts of a case.

"It is therefore well-settled that even environmentally harmful projects will satisfy NEPA as long as the appropriate procedures are followed," Dugan said in a memorandum to the order. "In that sense, the rights NEPA provides are procedural, not substantive.

"It thus blends a faith in technocratic expertise with a trust in democracy. Officials must think through the consequences of -- and alternatives to -- their contemplated acts; and citizens get a chance to hear and consider the rationales the officials offer."

THOROUGH INVESTIGATION

The judge said the record shows the Corps conducted a "thorough investigation" into the environmental effects of the work done on the channel.

"There is no requirement under NEPA that every aspect of a project be studied ad nauseum or that all negative impacts of the project be eradicated," Dugan said.

"It points as well to the need for continued bank stabilization in certain locations through revetment construction and maintenance because unprotected banks along the MMR have historically experienced an annual erosion rate of as much as 10 feet. The Corps believes that the purpose and need of the project are better realized at certain locations along the MMR by less dredging and more training of the channel."

The judge said there was no evidence in the record that the Corps of Engineers took certain actions "solely for the purpose of reducing costs even at the expense of the flood risks and negative ecological impacts."

Dugan said the paramount goal for the Corps was to "maintain a navigable waterway" along the stretch of river.

"There are a limited number of ways to accomplish this goal," the judge wrote.

"One is to dredge. But dredging can be accomplished in numerous ways. Another is to construct training structures. Likewise, there are many types of structures that have and can be used to accomplish the purpose."

AG SUPPLY CHAIN DISRUPTIONS

Flooding along the Mississippi River has led to disruptions in agriculture supply chains and caused damage to farm ground in several states.

The Mississippi River has experienced a series of historic floods in recent years, clogging up barge traffic, flooding towns and cities, and damaging farm ground along the river.

The lawsuit filed by the National Wildlife Federation, American Rivers, Prairie Rivers Network, Missouri Coalition for the Environment and Great Rivers Habitat Alliance, points to the continued construction of river-training structures as a reason for narrowing river channels in the Middle Mississippi River.

River-training structures include dikes, weirs and chevrons, and placement of bank-hardening works known as "revetments."

The groups' motion for summary judgement argued the Corps allegedly "failed to consider" alternative approaches that would be less costly to the environment.

The groups asked the court for a review of the Corps' record of decision on its project designed to scour a navigation channel 9 feet deep and 300 feet wide in the Middle Mississippi River.

The lawsuit alleged the Corps' project does not follow the Rivers and Harbors Act of 1927 that forbids the construction of training structures that narrow the river to less than 2,000 feet, because "doing so destroys the river's natural meanders and side-channel habitat diversity, and decreases the channel's capacity to handle high flows, resulting in more frequent and severe flooding."

The groups said in their motion the project narrows the river to 1,500 feet or less, in violation of the law.

Congress established limits on what is called the Regulating Works Project. Once the river was contracted to a width of 2,000 to 2,500 feet, the Corps is required to maintain the navigation channel "only through dredging as needed," the lawsuit contends. The Corps approved the current project in August 2017.

The Mississippi River watershed drains about 1.2 million square miles, including all or part of 32 states.

The U.S. Department of the Interior has documented 193 species of migratory birds in or around the project area. In addition, about 140 species of fish live in the section of the river, including the endangered pallid sturgeon.

Read more on DTN:

"Corps Seeks Court Ruling," https://www.dtnpf.com/…

"Groups Seek Ruling in Miss. River Case," https://www.dtnpf.com/…

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @DTNeeleeley

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