Eighth Circuit upholds Corps operations along Missouri River
In re: Operation of the Missouri River System Litigation,, No. 07-1149 (8th Cir. Feb. 8, 2008)(affirming lower court, upholding U.S. Army Corps operations along Missouri River.)
BACKGROUND: In numerous federal courts, South Dakota, Nebraska, and Missouri sued each other over the U.S. Army Corps operations along the Missouri River, eventually leading to referral of the issue to the Judicial Panel on Multi-District Litigation. At issue in this case was the fact that the Army Corps revised its "Master Manual" governing operations along the river to reflected the requirements of a U.S. Fish & Wildlife Service biological opinion issued pursuant to the Endangered Species Act in 2003. Specifically, a "reasonable and prudent alternative" in the 2003 BiOp recommended that the Corps operations should include a "spring rise" for thirty days every three years, because the elevated waters would act as a spawning cue for the endangered pallid sturgeon, scour sandbars to allow endangered least terns and threatened piping plovers to nest more safely, and provide an influx of nutrients from the floodplain for all three species. In March 2006, the Corps issued a "Record of Decision" revising its 2004 Master Manual to include a bimodal spring rise
plan. Missouri, which has consistently opposed a spring rise because of its potential adverse effect on downstream flood control, commenced this action to enjoin implementation of the spring rise plan. Appealing the decision of U.S. District Court Judge Paul Magnuson, Missouri argued that the Army Corps 2006 Master Manual revision was a major federal action significantly affecting the human environment, and therefore the Corps violated the National Environmental Policy Act by failing to prepare an EIS or an SEIS. 42 U.S.C. § 4332(2)(C).
Photo of endangered pallid sturgeon by Ken Bouc, Nebraska Game and Parks Commission, available online from U.S. FWS
OPINION AND ANALYSIS: "The Corps spent over fourteen years preparing the 2004 FEIS which included a comprehensive environmental analysis of various spring rise plans... Missouri argues that an SEIS was required because the Modified Conservation Plan adopted in the 2004 Master Manual did not include a spring rise and therefore the 2006 revision adopting a spring rise is a substantial change from the agency’s prior action. This contention is contrary to established law. A substantial change that requires an SEIS under 40 C.F.R.§ 1502.9(c)(1)(I) is one that is not “qualitatively within the spectrum of alternatives that were discussed” in a prior FEIS. Dubois v. U.S. Dep’t of Agric., 102 F.3d 1273, 1292 (1st Cir. 1996), cert. denied, 521 U.S. 1119 (1997), quoting Forty Most Asked Questions Concerning CEQ’s National Environmental Policy Act Regulations, 46 Fed. Reg. 18026, #29b (March 23, 1981).
More importantly, the Corps has not ignored the issue whether a bimodal spring rise plan will have significantly different environmental impacts. In an analysis “tiered” to the FEIS, the EA comprehensively compared the impacts of the bimodal spring rise in the 2006 Master Manual revision with the spring rise options studied in the FEIS and concluded that the bimodal spring rise plan is within the range of impacts previously studied and is not a substantial change from the historical range of release levels on the river. This was the proper inquiry under 40 C.F.R. § 1502.9(c)(1)(I). As there is no tenable claim of “significant new circumstances or information relevant to environmental concerns” within the meaning of 40 C.F.R. § 1502.9(c)(1)(ii), we agree with the district court that the Corps was not arbitrary or capricious in deciding not to prepare an SEIS."
For the complete opinion from the 8th Circuit, click here and search the February 2008 opinions.