Several nature groups seek summary judgment against the Army Corps of Engineers in a lawsuit alleging a river regulating project on 195 miles of the Mississippi River violates environmental laws and will result in more severe flooding and ecological collapse.
“The project vastly exceeds the scope of the regulating works project authorized by Congress,” the suit states.
National Wildlife Federation, American Rivers, Prairie Rivers Network, Missouri Coalition for the Environment and Great Rivers Habitat Alliance filed a motion for summary judgment on Feb. 15 through attorney Stephan Volker of Berkeley.
Volker wrote in the memorandum in support of the motion for summary judgment that the complaint was filed in an effort to compel the Corps to conduct “urgently needed environmental reviews and perform critical statutory duties to address the severe impacts of their long-term Regulating Works Project on the 195-mile Middle MIssissippi River,” which is located between the river’s confluence with the Missouri River just north of St. Louis and its confluence with the Ohio River at the southern tip of Illinois.
The nature groups seek the court’s review of the Corps’ project and impact statement for river training structures including dikes, weirs, chevrons, and bank hardening revetments as well as related operations and maintenance activities “intended to scour a navigation channel at least nine feet deep and 300 feet wide” in the Middle Mississippi River.
They seek summary judgment “on the grounds that there are no genuine issues of material fact in dispute, and plaintiffs are entitled to judgment as a matter of law aside the Corps’ Record of Decision dated August 31, 2017 approving its 2017 Regulating Works Project and Final Supplemental Environmental Impact Statement thereon.”
“This is a landmark case with profound implications for public safety and the environment,” Volker wrote.
The nature groups argue the Army Corps of Engineers’ Final Supplemental Environmental Impact Statement (FSEIS) is too narrow, limits alternatives, ignores environmental laws and fails to demonstrate why the project is needed. More specifically, the statement only allows the choice between the proposed project and no project at all. The statement allegedly ignores data showing the project’s impact on flood heights and response, sediment loading and transport, habitats and hydrology and hydraulics.
The nature groups argue that the project violates the Water Resources Development Act, which requires the Corps to “prepare a detailed mitigation plan to reduce adverse impacts on ecological resources.”
The Corps is accused of violating the Fish and Wildlife Coordination Act by failing to consult with the Fish and Wildlife Service before approving and implementing the project.
The plaintiffs also argue that the project violates the Rivers and Harbors Act by failing to follow strict regulations established by Congress. The Corps was to maintain the navigation channel only through dredging as needed, the memorandum states.
“The Corps’ unauthorized approval of the 2017 FSEIS with its 1,500 foot contraction (AR 1-6, 2309) threatens environmental harm and flood stage increases forbidden under the plan authorized by Congress at least through 2034,” Volker wrote.
The nature groups seek a judgment declaring the Corps’ approval of the project with an adequate statement is not in accordance with law, an injunction ordering the Corps to prepare an adequate statement analyzing the project as a whole, an injunction enjoining the Corps from approving new river training structures until an adequate statement is approved and in compliance with environmental laws, and attorney’s fees and court costs under the Equal Access to Justice Act.
Volker wrote in the memorandum that the Middle Mississippi River (MMR) is a vital national resource for people and wildlife but is in a state of ecological decline.
“Fish and wildlife populations are collapsing because of the growing degradation and loss of their habitat. Yet the Corps has decided to proceed with more construction of the project’s enormously impactful river training structures without first having analyzed in an adequate SEIS the MMR’s grave state of environmental deterioration due to the project, and the adverse impacts of continued long-term construction of river training structures and revetments on the environment and public safety,” Volker wrote.
The nature groups argue that alternative approaches would have achieved the project’s navigation purposes with less costs to the environment, including the reduction in building new river training structures and revetments as well as the reliance on dredging to maintain the channel.
“The Corps insisted it had to use the obsolete techniques for carrying out the Project that Congress originally approved 110 years ago based on a Corps plan developed 139 years ago,” Volker wrote.
“The Corps’ refusal to examine any alternatives it claims to be outside its existing authorization, or different from those identified by Congress more than 100 years ago, renders the FSEIS inadequate as a matter of law,” he added.
The nature groups argue that the construction of river regulating structures that narrow the river to less than 2,000 feet is forbidden because it destroys natural habitat diversity and decreases the channel’s capacity to handle high flows, resulting in more frequent and severe flooding. The Corps’ project allegedly narrows the river to 1,500 feet or less.
Additionally, the impact statement allegedly fails to admit that the river regulating structures narrows the river’s channel.
“Common sense tells us the same thing: when you narrow the width of a flow of water, you necessarily increase its height to accommodate the same volume of inflow,” Volker wrote.
The plaintiffs accuse the Corps of disregarding common sense and expert conclusions.
“The FSEIS’s failure to acknowledge and account for the significant increases in flood heights and the fundamental changes to the way the MMR responds to floods caused by river training structures renders the FSEIS deeply, and dangerously, flawed,” Volker wrote.
The lawsuit was filed May 13 in the U.S. District Court for the Southern District of Illinois and seeks to protect the Middle Mississippi River from “further irreparable environmental harm and ecological collapse.”
Volker claims the Corps has failed to properly evaluate the impact of the project intended to maintain a navigation channel at least nine feed deep and 300 feet wide.
“Regulating works activities include construction and maintenance of river training structures such as dikes, weirs and chevrons, and placement of bank hardening works known as revetments,” Volker wrote.
He wrote that activities include dredging to control route, depth, and flow rate.
In 2017, the Corps issued a decision to continue construction of structures through at least 2034, the suit states.
Volker wrote that the Corps developed structures with different impacts on flow, level, shore erosion, and habitat.
The structures allegedly place communities at risk of injury and damage “from increased flooding because they narrow, and thus constrain, the river’s flow during high water events.”
In 1990, the Corps began building weirs at bends to direct water to the inside of bends and prevent the channel from migrating out.
After 2000, the Corps began using chevrons to split the flow and provide a secondary channel near the bank, the suit states. The Corps also installed rootless dikes that don’t attach to the bank.
“The original environmental impact statements did not consider the effects of these structures because they had not yet been invented,” Volker wrote.
From 1980 to 2009, the Corps built at least 380 structures in the Middle Mississippi including 40,000 feet of wing dikes and weirs, the suit states.
U.S. District Court for the Southern District of Illinois case number 3:20-cv-443